Amicus Curiae Brief — United States, Petitioner v. Ali Danial Hemani

No. 24-1234

In the Supreme Court of the United States

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 FOR AMICI CURIAE HISTORY AND LAW

PROFESSORS IN SUPPORT OF PETITIONER

CHARLES A. ROTHFELD MARK G. HANCHET

Counsel of Record

WHITNEY A. SUFLAS

Mayer Brown LLP

NOELLE A. JOLIN

1999 K Street, NW

Mayer Brown LLP

Washington, DC 20006 1221 Avenue of the

(202) 263-3000

Americas

New York, NY 10020

(212) 506-2500

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

Counsel for Amici Curiae

-iTABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 1

ARGUMENT .............................................................. 4

I.

This Case Should Be Resolved By Reference

To The Full Range Of Historical Practices And

Tradition That Reflects Restrictions On

Individuals Who Threaten Public Safety. ........... 4

II. Section 922(g)(3) Is Consistent With Our

Nation’s History And Tradition Of Restricting

Firearms Possession By Those Perceived To

Threaten Society. ................................................. 9

A. Laws Restricting Alcohol Users Are

Analogous To Section 922(g)(3). .................. 11

B. Laws Restricting The Mentally Ill Are

Analogous To Section 922(g)(3). .................. 16

C. Laws Restricting Minors Are

Analogous To Section 922(g)(3). .................. 18

D. Laws Restricting Persons Perceived To

Be A Threat Are Analogous To Section

922(g)(3). ...................................................... 20

III. As Drugs Became A More Serious Problem,

Legislatures Responded In Ways That Were

Closely Analogous To Their Treatment Of

Other Threatening Behaviors. .......................... 21

A. Drug Use Was Not A Significant Social

Problem Prior To The Civil War. ................ 21

-iiTABLE OF CONTENTS

(continued)

Page

B. Drug Use Increased After The Civil

War And Legislatures Responded. ............. 23

C. As Awareness Of The Dangers Of

Drug Use Grew, Legislatures

Restricted The Sale Of Guns To Drug

Addicts. ........................................................ 25

CONCLUSION ......................................................... 27

APPENDIX: List of Amici ....................................... 1a

-iiiTABLE OF AUTHORITIES

Page(s)

Cases

Benson v. Terhune,

304 F.3d 874 (9th Cir. 2002) .................................. 2

Chandler v. Greene,

1998 WL 279344 (4th Cir. May 20,

1998) ....................................................................... 2

D.C. v. Heller,

554 U.S. 579 (2008) ................................................ 9

Kanter v. Barr,

919 F.3d 437 (7th Cir. 2019) .................................. 9

Nat’l Rifle Ass’n v. Bondi,

133 F.4th 1108 (11th Cir. 2025) .......................... 19

National Ass’n for Gun Rts. v. Lamont,

153 F.4th 213 (2d Cir. 2025) .................................. 7

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

v. Bruen,

597 U.S. 1 (2022) ..................................... 2, 4-5, 8-9

Palmer v. Bagley,

330 F. App’x 92 (6th Cir. 2009) ............................. 2

United States v. Contreras,

125 F.4th 725 (5th Cir. 2025) .............................. 11

United States v. Duarte,

137 F.4th 743 (9th Cir. 2025) .............................. 10

United States v. Harrison,

153 F.4th 998 (10th Cir. 2025) .............................. 9

United States v. Rahimi,

602 U.S. 680 (2024) ..................... 2, 3, 5, 7-9, 10, 14

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ................................ 9

-ivTABLE OF AUTHORITIES

(continued)

Page(s)

Zherka v. Bondi,

140 F.4th 68 (2d Cir. 2025) .................................... 9

Statutes

Pa. Cons. Stat., ch. 167, § 57 (1780) ......................... 15

18 U.S.C. § 922 ...................................................... 1, 10

1702 Conn. Acts & Laws 91 ...................................... 14

1769 Va. Acts 13 ........................................................ 17

1780-1788 Mass. Laws 135 (1784) ............................ 17

1895 Conn. Acts 561 .................................................. 24

1 Mo. Rev. Stat. ch. 24, Art. I, § 1274, 1

The Revised Statutes of the State of

Missouri, 1879, 224 (John A.

Hockaday et al. eds.,1879) ................................... 15

4 Journals of the Continental Congress

205 (1776) ............................................................. 21

1785 Ky. Act for the Restraint,

Maintenance and Cure of Persons

Not of Sound Mind, ch. 87, 2 William

Littell, The Statute Law of Kentucky

578 (1810) ............................................................. 17

1876 Vir. Acts 248 ..................................................... 12

1899 N.C. Pub. Laws 20 ............................................ 17

Act of Apr. 6, 1936, No. 82, § 8, 1936

Ala. Laws 52, (Dangerous Weapons

Act) ................................................................. 24, 26

Act of Apr. 12, 1902, ch. 93, § 2, 1902

Iowa Acts 58 ......................................................... 24

-vTABLE OF AUTHORITIES

(continued)

Page(s)

Act of Apr. 13, 1895, ch. 74, § 1, 1895

Colo. Acts 172 ....................................................... 24

Act of Apr. 14, 1881, ch. 67, § 1, 1881

Ind. Acts 545 .................................................. 24, 25

Act of Apr. 17, 1895, ch. 286, § 3, 1895

Mass. Acts 292 ............................................... 24, 25

Act of Apr. 19, 1893, ch. 5 § 20, 1893

Minn. Acts 84, sec. 201 ........................................ 25

Act of Apr. 20, 1837, ch. 240, 1837

Mass. Acts 273 ..................................................... 13

Act of Apr. 22, 1907 ch. 288, 1907 Minn.

Acts 387 et seq. ..................................................... 25

Act of Apr. 29, 1925, ch. 284, § 4, 1925

Mass. Acts & Resolves 324 .................................. 26

Act of Apr. 30, 1901, No. 93, § 1, 1901

Mich. Pub. Acts 134 ............................................. 24

Act of Feb. 1, 1866, No. 11, § 10, 1866

Pa. Laws 10 .......................................................... 12

Act of Feb. 2, 1856, no. 26, § 1, 1856 Ala.

Acts 17 .................................................................. 19

Act of Feb. 4, 1885, § 1, 1884-1885 Idaho

Terr. Gen. Laws 200 ............................................ 13

Act of Feb. 8, 1882, ch. 75, § 3, 1882

Wyo. Acts 163 ....................................................... 24

Act of Feb. 14, 1872, § 647, in 2 The

Codes and Statutes of the State of

California 1288 (Theodore H. Hittell

ed., 1876) .............................................................. 12

-viTABLE OF AUTHORITIES

(continued)

Page(s)

Act of Feb. 16, 1771, 5 Col. Laws of N.Y.

244-246 (1894) ...................................................... 14

Act of Feb. 18, 1876, § 378, in The

Compiled Laws of the Territory of

Utah 647 (1876) ................................................... 12

Act of Feb. 21, 1788, ch. 37 (N.Y. Laws

664-665) ................................................................ 10

Act of Feb. 21, 1879, ch. 43, § 1, 1879

Dakota Terr. Acts 118 .......................................... 24

Act of Feb. 21, 1935, ch. 63, § 6, 1935

Ind. Laws 161 ................................................. 24, 26

Act of Feb. 22, 1825, ch. 297, § 4, 1825

Me. Pub. Acts 1034 .............................................. 13

Act for Establishing and Regulating

Courts of Public Justice Within this

Province, 1705 N.H. Laws 1 ................................ 21

Act for the Punishing of Criminal

Offenders, ch. 11, § 6, 1814 Mass.

Laws 240, § 6 (1692) ............................................ 20

Act for the Relief of Idiots and

Distracted Persons (1776), 17761789 N.H. Laws 235 ............................................. 17

Act Forbidding and Punishing Affrays,

ch. 49, 1786 Va. Acts 35 ................................. 20, 21

Act of Jan. 1840, § 46, 1840 R.I. Pub.

Laws 3 .................................................................. 13

Act of Jul. 25, 1874, ch. 113, § 1, 1874

Conn. Pub. Acts 256 ....................................... 12, 24

-viiTABLE OF AUTHORITIES

(continued)

Page(s)

Act of July 8, 1936, No. 14, § 2, 1936

P.R. Acts & Res. 128 ...................................... 24, 26

Act of June 5, 1925, ch. 3, § 7(a), 1925

W. Va. Acts 25 ...................................................... 26

Act of June 10, 1799, § 1, Laws of the

State of New Jersey 473-474 (1821) .................... 12

Act of June 11, 1931, No. 158, § 8, 1931

Pa. Laws 499 .................................................. 24, 26

Act of June 18, 1881, ch. 546, § 8, 1881

N.Y. Acts 787 ........................................................ 24

Act of June 19, 1931, ch. 1098, § 12,

1931 Cal. Stat. 2316-2317.................................... 26

Act of June 30, 1902, Pub. L. No. 57106, ch. 1329 § 115f, 31 Stat. 524,

525 ........................................................................ 24

Act of Mar. 2, 1885, ch. 51, § 1, 1855

Nev. Stat. 51 ......................................................... 19

Act of Mar. 5, 1860, ch. 386, § 6, 1860

Md. Laws 607 ....................................................... 12

Act of Mar. 7, 1873, ch. 114, § 1, 1873

Nev. Stat. 189 ....................................................... 12

Act of Mar. 13, 1872, ch. 75 § 1713a, 56

Code of Va. 881..................................................... 25

Act of Mar. 13, 1885, ch. 121, § 1, 1885

N.D. Laws 179 ...................................................... 24

Act of Mar. 14, 1935, ch. 208, § 8, 1935

S.D. Laws 356 ................................................ 24, 26

-viiiTABLE OF AUTHORITIES

(continued)

Page(s)

Act of Mar. 23, 1935, ch. 172, § 8, 1935

Wash. Sess. Laws 601 .................................... 24, 26

Act of Mar. 24, 1787, ch. 65 (N.Y. Laws

499-500) ................................................................ 10

Act of Mar. 27, 1857, ch. 184, § 10, 1857

N.Y. Laws, Vol. 1, 431 .......................................... 12

Act of Mar. 28, 1837, ch. 276, § 5, 1837

Me. Spec. Acts 421 ............................................... 13

Act of Mar. 28, 1872, ch. 996, § 10, 1872

Ky. Acts, Vol. 2 ..................................................... 12

Act of Mar. 30, 1876, ch. 40, § 8, 19 Stat.

10 (1876) (D.C.) .................................................... 12

Act of Mar. 30, 1927, ch. 321, § 7, 1927

N.J. Acts 745 ........................................................ 26

Act of March 31, 1785, ch. 47 (N.Y.

Laws 106-107) ...................................................... 10

Act of May 4, 1864, sec. I, § 2, P.L. 221,

2 A Digest of the Laws of

Pennsylvania 1040 (Frederick C.

Brightly, rev., Philadelphia, Kay &

Brother 10th ed. 1873) ......................................... 13

Act of May 8, 1792 (1796) (Conn.), Acts

and Laws of the State of Connecticut,

in America 308 (Hartford, Hudson &

Goodwin, 1796)..................................................... 19

Act of May 14, 1718, ch. 15, 2 Laws of

New Hampshire 266 (Albert

Stillman Batchellor ed., 1913) ............................. 12

-ixTABLE OF AUTHORITIES

(continued)

Page(s)

Act of May 25, 1897, No. 155, § 8, 1897

Mich. Acts 191 ...................................................... 24

Act of May 3, 1676, reprinted in 5

Records of the Governor & Company

of the Massachusetts Bay in New

England 80 (Nathaniel v.

Shurtleffed, Boston, William White

1853) ............................................................... 16, 17

Act of Nov. 11, 1842, No. 28, tit. V, § 61,

1842 Vt. Acts & Resolves 27 ................................ 13

Act of Nov. 17, 1794, Laws of the State

of New-Jersey 125 (William Paterson

rev., Newark, Matthias Day 1800) ...................... 17

Act of Oct. 1727, The Public Records of

the Colony of Connecticut from May,

1727, to May, 1735, Inclusive 128

(Charles J. Hoadly ed., 1873) .............................. 12

Act of Sept. 8, 1835, ch. 26, § 1, Conn.

Acts & Laws 1855 (law passed 1835) .................. 19

Act of Sept. 29, 1773 (Ga.), in Robert

Watkins and George Watkins, A

Digest of the Laws of the State of

Georgia, 184 (1880) .............................................. 10

Act to Amend “an Act to Reduce into

One the Several Acts in Relation to

the Town of Harrodsburg,” ch. 33, §

23, 1860 Ky. Acts 241 .......................................... 20

-xTABLE OF AUTHORITIES

(continued)

Page(s)

Act to Amend the Criminal Laws of This

State, ch. 81, § 2, 1856 Tenn. Acts 92

(G.C. Torbett and Company) ............................... 20

Act to Amend Section 3736, No. 121, §

1, 1910 Vt. Acts & Resolves 125 .......................... 25

Act to Establish a Penal Code, § 1014, in

Revised Statutes of Arizona 753

(1887) .................................................................... 12

Act XII of Mar. 10, 1655 (Va.) ................................... 14

An Act for the Better Security of

Government, Laws of Md. 1777, ch.

20, § 2.................................................................... 18

1700-1797 Del. Laws 1055-1056 (1793).................... 17

1881 Fla. Laws 87 ..................................................... 17

In keepers, Ordinaries. Tipling,

Drunkenness, (1661) (Massachusetts

Colony), reprinted in Edward

Rawson, The General Laws and

Liberties of the Massachusetts Colony

81 (Cambridge, 1672) ........................................... 12

1867 Kan. Sess. Laws 25, ch. 12, § 1 ........................ 15

1883 Kan. Sess. Laws 159......................................... 17

Mass. Gen. Stat. ch. 165, § 25 ................................... 12

1799 Miss. Laws 35-38 .............................................. 17

N.H. Gen Stat. ch. 253, sec. 3 (1853) ........................ 12

1852 N.M. Laws 67, § 3 ............................................. 15

1788 N.Y. Laws 617 .................................................. 17

-xiTABLE OF AUTHORITIES

(continued)

Page(s)

New Orleans, Louisiana, Project of

Resolution art. 1 (Jan. 25, 1804) ......................... 15

New York, NY, Ordinances of the

Mayor, Aldermen and Commonality

of the City, ch. 13, § 6 (Chas. W.

Baker 1859) .......................................................... 20

1804 Ohio Laws 163-165 ........................................... 17

Ordinance as to Retailing Gun Powder,

Louisville, State and Municipal

Laws in Force and Applicable To

(Passed 1853) (C. Settle 1857) ............................. 19

Ordinance of Mar. 6, 1905, Part 6, ch.

72, § 1, Municipal Code of the City of

Albany (Albany 1910) .......................................... 26

1835 Pa. Laws 589..................................................... 11

Political Code of the State of California,

Tit. V, § 2170, 588 (1872) ............................... 24, 25

1865 R.I. Acts & Resolves 197, Act of

Mar. 15, 1865, ch. 562, § 1-2 ................................ 12

The Revised Statutes of the State of

New York 889 (1875) ........................................... 24

Scandia Kan. Ordinance No. 79,

Ordinance Relating to Crimes and

Punishments, in 23 Scandia J., Jan 5

1984 ...................................................................... 26

Statute of Northampton, 2 Edw. 3, 258

Ch. 3 (1328) .......................................................... 20

-xiiTABLE OF AUTHORITIES

(continued)

Page(s)

David Taylor, The Revised Statutes of

the State of Wisconsin 1099 (1872) ...................... 25

1869-70 Tenn. Pub. Acts 23-24, ch. 22, §

2 ............................................................................ 16

1870 Tex. Gen. Laws 63, ch. 46, § 1.......................... 15

1883 Wis. Sess. Laws 290, ch. 329, § 3 ..................... 15

Other Authorities

1792 Va. Ch. 54, 1 Samuel Shepherd,

Statutes at Large of Virginia from

October Session 1792, to December

Session 1806, Inclusive 163

(Richmond, 1835) ................................................. 17

A Compilation of the Penal Code of the

State of Georgia, with the Forms of

Bills of Indictment Necessary in

Prosecutions Under it, and the Rules

of Practice 21 (Howell Cobb ed.,

Macon, Joseph M. Boardman 1850) .................... 14

William Blackstone, Commentaries on

the Laws of England (ed. St. George

Tucker 1803) (Oxford, Clarendon

Press 1768) ......................................... 11, 12, 14, 20

Richard J. Bonnie & Charles H.

Whitebread II, The Forbidden Fruit

and the Tree of Knowledge: An

Inquiry into the Legal History of

American Marijuana Prohibition, 56

Va. L. Rev. 971 (1970) .......................................... 22

-xiiiTABLE OF AUTHORITIES

(continued)

Page(s)

Holly Brewer, By Birth or Consent:

Children, Law, and the AngloAmerican Revolution in Authority

(Chapel Hill: University of North

Carolina Press, 2005), 207 ................................... 18

David R. Buchanan, A Social History of

American Drug Use, 22 J. Drug

Issues 31, 40 (1992) .............................................. 22

Richard Burn, The Justice of the Peace

and Parish Officer 14-15 (3rd. ed.

1756) ....................................................................... 6

Magdalena, Cerda, et al., The Future of

the United States Overdose Crisis:

Challenges and Opportunities, 101

Millbank Q. 478 (2023) ........................................ 22

Saul Cornell, “Infants” and Arms

Bearing in the Era of the Second

Amendment: Making Sense of the

Historical Record, 40 Yale L. & Pol'y

Rev. Inter Alia 1, 15 (2021) .................................. 19

Saul Cornell, Common-Law Limits on

Firearms Purchases By Minors: The

Original Understanding, 173 U.

Penn. L. Rev. Online 133 (2025)........................ 3, 7

Saul Cornell, The Long Arc of Arms

Regulation in Public: From Surety to

Permitting, 1328-1928, 55 U.C.

Davis L. Rev. 2545 (2022) ................................ 7, 21

-xivTABLE OF AUTHORITIES

(continued)

Page(s)

Brian DeLay, The Myth of Continuity in

American Gun Culture, 113 Cal. L.

Rev. 1 (2025)..................................................... 4, 21

Elizabeth Kelly Gray, Habit Forming:

Drug Addiction in America, 17761914, 24 (2023) .................................................... 22

Matthew Hale, 1 Historia Placitorum

Coronae: The History of the Pleas of

the Crown (London, 1736).............................. 11, 18

Stephen Hargarten & Jennifer Tucker,

How Modern Bullets Maximize

Lethality, Vital City NYC (Sept. 10,

2025), https://perma.cc/2BRF-EHTL ..................... 4

John P. Hoffman, The Historical Shift

in the Perception of Opiates: From

Medicine to Social Menace, 22 J.

Psychoactive Drugs 53 (1990) .............................. 22

Francois Xavier Martin, A Collection of

Statutes of the Parliament of

England in Force in the State of

North Carolina, 60 (Newbern 1792).................... 21

Eric Monkkonen, Homicide: Explaining

America's Exceptionalism, 111 Am.

Hist. Rev. 76, 85 (2006).......................................... 4

David F. Musto, , The American

Experience with Stimulants and

Opiates, 2 Persps. on Crime & Just.,

51, 51 (1998) ............................................... 8, 22, 23

-xvTABLE OF AUTHORITIES

(continued)

Page(s)

John H. Parsons, Town of Montclair: An

Ordinance to Regulate the Carrying

of Concealed Weapons and to

Prohibit the Carrying of the Same

Except as Herein Provided, Montclair

Times, May 15, 1897, at 8.................................... 26

Randolph Roth, Why Guns Are and

Aren't the Problem: The Relationship

between Guns and Homicide in

American History, in A Right to Bear

Arms? The Contested Role of History

in Contemporary Debates on the

Second Amendment, 113 (Jennifer

Tucker et al. eds. 2019) .......................................... 7

1 Zephaniah Swift, A System of the

Laws of the State of Connecticut, 216

(Windham, 1795) .................................................. 18

Roseann B. Termini & Rachel MalloyGood, 50 Years Post-Controlled

Substances Act: The War on Drugs

Rages on with Opioids at the

Forefront, 46 Ohio N.U. L. Rev. 1

(2020) .................................................................... 23

U.S. Const. amend. II. ......................................... 1, 5, 7

U.S. Const. amend. XIV. ...................................... 5, 17

Vt. Constitution of 1786, ch. 2, art. 18

(1786) .................................................................... 18

-xviTABLE OF AUTHORITIES

(continued)

Page(s)

Megan Walsh & Saul Cornell, Age

Restrictions and the Right to Keep

and Bear Arms, 1791-1868, 108

Minn. L. Rev. 3049 (2024) ................................... 18

David Yassky, The Second Amendment:

Structure, History, and

Constitutional Change, 99 Mich. L.

Rev. 588 (2000) ..................................................... 13

INTEREST OF THE AMICI CURIAE

Amici are professors of History, Law, and English.

They have studied the history of criminal law and firearm regulation in the United States, as well as Founding era constitutionalism.1 Their scholarship has been

published by major university presses and in leading

law journals; awarded numerous prizes; and cited in

opinions of this Court, courts of appeal, and state

courts.

Amici submit this brief because Second Amendment doctrine places great weight on the history and

tradition of firearm regulation. It is critical, in such

cases, that the Court is presented with accurate and

reliable accounts of the key history and tradition. As

historians who have developed a deep knowledge of

the relevant practices, amici are well qualified to assist the Court in evaluating the historical record. In

addition to canvassing pertinent secondary scholarship, this brief makes reference to a wealth of primary

sources that are vital to understanding how the law

governing access to firearms actually functioned and

evolved throughout American history.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The statute at issue in this case, 18 U.S.C.

§ 922(g)(3), reflects a measured response to a serious

problem: It temporarily disarms those who use or are

addicted to illegal drugs. The statute’s restriction

rests on the legislature’s measured judgment that

those impaired by habitual use of illegal drugs pose a

1 A list of amici is included in the appendix to this brief. No coun-

sel for a party authored the brief in whole or in part. No person,

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

2

risk to themselves and others when they take up

arms. A quick glance through federal case law illustrates that this concern is well founded. See, e.g.,

Palmer v. Bagley, 330 F. App’x 92, 98 (6th Cir. 2009)

(while “under the influence of alcohol or LSD,” Palmer

shot victim but “did not remember pulling the trigger”

because he was in a state of “mass confusion”); Chandler v. Greene, 1998 WL 279344, at *2 (4th Cir. May

20, 1998) (defendant testified he shot the victim while

“under the influence of drugs and alcohol” and did not

have “the slightest idea” why he pulled the trigger);

Benson v. Terhune, 304 F.3d 874, 877 (9th Cir. 2002)

(“Benson, who admitted she was under the influence

of methamphetamine at the time, fatally shot Wright

as she lay in bed.”).

Respondent Ali Danial Hemani, an alleged drug

dealer and confessed drug addict, challenges Section

922(g)(3)’s restriction on his right to bear arms. U.S.

Br. 6-7. In accepting that challenge, the Fifth Circuit

committed reversible error. That court purported to

nod toward the history-and-tradition test this Court

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

v. Bruen, 597 U.S. 1 (2022), and United States v.

Rahimi, 602 U.S. 680 (2024), seeing a constitutional

problem because the Founding and Reconstructionera laws it considered were not “dead ringer[s]” for

Section 922(g)(3). Bruen, 597 U.S. at 30. But as this

Court has explained, that sort of close correspondence

is not necessary. Rather, modern-day laws need comport only with the “principles that underpin our regulatory tradition” (Rahimi, 602 U.S. at 692); the Constitution does not require a “historical twin” when

Congress is addressing modern-day problems that did

not exist at the Founding. Bruen, 597 U.S. at 30.

Three points are especially relevant here.

3

First, this case should be resolved by reference to

the history and tradition of restricting access to firearms by persons who threaten public safety. That inquiry must be made at a sufficiently high level of generality so that the law is not “trapped in amber”

(Rahimi, 602 U.S. at 691), taking into account understandings that were current at the Founding era, just

before and after Reconstruction, and that continued

without change into the twentieth century. The Court

also should be sensitive to the reality that many

Founding era practices were set by common law and

not memorialized in positive law (see Saul Cornell,

Common-Law Limits on Firearms Purchases By Minors: The Original Understanding, 173 U. Penn. L.

Rev. Online 133, 133 (2025)), and therefore are not

easily uncovered in the course of litigation despite

their significant impact on daily life.

Second, the historical analogues we highlight reflect the long-standing principle that Congress may

temporarily disarm those who threaten the public

peace or physical safety of others. Founding-era legislation routinely restricted individuals perceived to be

dangerous—whether from intoxication, mental illness, or youth and inexperience—so as to protect the

community. The same “why” undergirds Section

922(g)(3). The government imposed these restrictions

through a variety of means—including permanent

disarmament, imprisonment, civil commitment, confiscation of property, and bodily punishment—that operated with a much more severe “how” than the temporary disarmament effected by Section 922(g)(3).

Third, although the Founders and legislators in

the early nineteenth century certainly were familiar

with and took steps to limit dangerously irresponsible

behavior, they had no experience with the modern

4

forms of drugs, drug addiction, or gun violence.2 In

these circumstances, it would make no sense to look

for a historical “twin” of modern regulations directed

at those harms. But the government acted when these

issues arose. As drug addiction soared after the Civil

War, legislatures across the country enacted a variety

of restrictions against drug sales, consumption, and

arms use by drug addicts. Notably, legislatures modified the Founding era laws that are most analogous

here—those restricting habitual drunkards—to include drug users, showing without doubt that those

laws are relevant historical analogues that support

the constitutionality of Section 922(g)(3).

ARGUMENT

I.

This Case Should Be Resolved By Reference

To The Full Range Of Historical Practices

And Tradition That Reflects Restrictions On

Individuals Who Threaten Public Safety.

In Bruen, the Court articulated a “history and tradition” test in evaluating firearms restrictions. 597

U.S. at 17. Under that approach, the government

must “justify its regulation by demonstrating that it

is consistent with the Nation’s historical tradition of

firearm regulation” by pointing to “historical analogies” that are “relevantly similar.” Id. at 24, 27, 29.

This search for analogies involves two inquiries: “how

and why the regulations burden a law-abiding

2 See, e.g., Eric Monkkonen, Homicide: Explaining America’s Ex-

ceptionalism, 111 Am. Hist. Rev. 76, 85-86 (2006); Brian DeLay,

The Myth of Continuity in American Gun Culture, 113 Cal. L.

Rev. 1, 15-17 (2025); Stephen Hargarten & Jennifer Tucker, How

Modern Bullets Maximize Lethality, Vital City NYC (Sept. 10,

2025), https://perma.cc/2BRF-EHTL.

5

citizen’s right to armed self-defense.” Id. at 29 (emphasis added).

To satisfy this test, the government need identify

only a “historical analogue, not a historical twin.” 597

U.S. at 30. That is necessarily so if a regulation implicates “unprecedented societal concerns or dramatic

technological changes” (id. at 27), when the Constitution “can, and must, apply to circumstances beyond

those the Founders specifically anticipated.” Id. at 29.

In that context, courts must look to the principles that

underpin our regulatory tradition. Rahimi, 602 U.S.

at 691-692. This is crucial because, as this Court has

recognized, the right to bear arms does not “sweep indiscriminately.” Id. at 691.

In conducting the historical inquiry, time period

matters. Obviously relevant are the periods around

1791 and 1868, when the Second and Fourteenth

Amendments were adopted. Bruen, 597 U.S. at 4. But

the Court has taken a broader view. Sources that reflect “how the Second Amendment was interpreted

from immediately after its ratification through the

end of the 19th Century” are a “critical tool of constitutional interpretation.” Id. at 35 (quotation omitted).

And a “regular course of practice” may “liquidate” and

“settle” constitutional meaning. Ibid. (quotation omitted). This is important because “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Rahimi, 602

U.S. at 691-692. “Holding otherwise would be as mistaken as applying the protections of the right only to

muskets and sabers.” Id. at 692.

But conducting the historical inquiry, even for historians, is no simple task. As this Court recognized,

“historical analysis can be difficult.” Bruen, 597 U.S.

6

at 25 (cleaned up). Amici highlight three difficulties

relevant here:

First, centuries-old governing regulations—especially common law requirements—can be very hard to

identify. Attorneys searching for these regulations,

who are not trained historians and often lack access

to primary sources, may be forced to engage in a scavenger hunt that is, at best, hit-or-miss. Conducting a

proper inquiry requires access to an archive, comprehensive library, or complete online database that has

compiled all relevant historical regulations; a full understanding of the types of laws that are analogous to

the challenged regulation and how those laws worked

in practice; and ample time. And even when all of this

is present, there is no guarantee that a complete record will be generated.

This case illustrates the point. Although the

United States compiled a robust historical record in

defense of Section 922(g)(3), this amicus brief fills in

gaps in the United States’ historical presentation. In

particular, the United States’ brief does not identify

laws enacted immediately following the Civil War

that addressed the growing problem of drug addiction.

See Section III.A, infra. Yet those laws are relevant

here, as reflecting Reconstruction era solutions to the

evolving problem addressed in Section 922(g)(3). And

even this brief, offered by professional historians, does

not purport to present a complete record, but one focused on the specific laws that appear most relevant

to the Court’s immediate inquiry.

Second, the most significant Founding era restrictions appeared in the common law, much of which

was not codified or reflected in statutes or judicial decisions. For example, surety laws were administered

by the local justice of the peace. Richard Burn, The

7

Justice of the Peace and Parish Officer 14-15 (3rd. ed.

1756). These authorities were empowered to restrain

dangerous persons and restrict their gun ownership;

the Court has recognized that surety restrictions

therefore bear heavily on Second Amendment analysis. See Rahimi, 602 U.S. at 695-696; see generally

Saul Cornell, The Long Arc of Arms Regulation in

Public: From Surety to Permitting, 1328-1928, 55 U.C.

Davis L. Rev. 2545 (2022). But very little of this important record was memorialized or retained for posterity in published records, and what remains is difficult to locate and not easily accessible. See id. at 2589.

Third, this case exemplifies why, as the Court has

recognized, the historical inquiry must focus on principles, not historical twins. Rahimi, 602 U.S. at 692.

At the historically relevant time, neither gun use nor

drug abuse looked anything like they do now.

During the Founding and Reconstruction eras,

although firearms were available, the relatively primitive nature of then-existing technology meant that

guns were rarely used to commit homicides. See National Ass’n for Gun Rts. v. Lamont, 153 F.4th 213,

239 (2d Cir. 2025). In colonial times, guns were slow

to load and dangerous to operate; users had one shot

and then had to spend critical time reloading, a tedious, high-risk task. See Randolph Roth, Why Guns Are

and Aren’t the Problem: The Relationship between

Guns and Homicide in American History, in A Right

to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment, 113-33

(Jennifer Tucker et al. eds. 2019). This made “[m]uzzle-loading blackpowder weapons * * * ill-suited to impulsive acts of gun violence.” Cornell, Common-Law

Limits on Firearms Purchases By Minors: The Original Understanding 135.

8

Drug use was also uncommon. To be sure, some

drugs, such as opium, were known. But prior to Reconstruction, drugs were expensive, far more benign

than modern counterparts, and misunderstood. See

David F. Musto, The American Experience with Stimulants and Opiates, 2 Persps. on Crime & Just., 51, 51

(1998). And drug production and distribution networks looked nothing like they do today.

It is therefore unsurprising that few “dead ringers” exist between modern and Founding era laws regulating guns and drug users. Searching the historical

record, therefore, requires a more “nuanced approach”

that looks to the underlying principle that individuals

who pose a special danger may be disarmed. Bruen,

597 U.S. at 27; Rahimi, 602 U.S. at 692.

With that framework, we highlight the following

historical analogues: (1) Founding and Reconstruction

era laws restricting persons perceived to be dangerous, including “drunkards,” the mentally ill, minors,

and others perceived as threats to society; and

(2) post-Reconstruction laws that specifically targeted

drug use after it had become a more recognized social

ill. Based on these analogues, it is evident that Section

922(g)(3) fits comfortably within the Nation’s historical tradition of firearms regulation.

9

II. Section 922(g)(3) Is Consistent With Our Nation’s History And Tradition Of Restricting

Firearms Possession By Those Perceived To

Threaten Society.

There is a long-standing tradition of disarming, or

otherwise restricting access to firearms those who are

perceived to be dangerous, jeopardize the physical

safety of others, or threaten to disrupt the public

peace. E.g., Rahimi, 602 U.S. at 698 (“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”);

D.C. v. Heller, 554 U.S. 579, 626 (2008) (recognizing

“longstanding prohibitions on the possession of firearms by felons and the mentally ill”); Zherka v. Bondi,

140 F.4th 68, 88 (2d Cir. 2025) (“before, during, and

shortly after the Founding, legislative bodies regulated firearms by prohibiting their possession by categories of persons perceived to be dangerous”); United

States v. Harrison, 153 F.4th 998, 1030 (10th Cir.

2025) (“the founding generation and their English ancestors permitted legislatures to disarm those believed to pose a risk of future danger”); United States

v. Williams, 113 F.4th 637, 654 (6th Cir. 2024) (“Colonial governments frequently deemed entire groups too

dangerous to possess weapons.”); Kanter v. Barr, 919

F.3d 437, 451 (7th Cir. 2019), abrogated by Bruen, 597

U.S. at 1, (Barrett, J., dissenting) (“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people

from possessing guns.”).

The “why” of such restrictions is straightforward

and inarguable—preventing dangerous individuals

from harming themselves or others. E.g., Harrison,

153 F.4th at 1027. And the “how” reveals that regulations were closely analogous to, or more (often much

10

more) restrictive than, the statute at issue in this

case, a temporary ban on firearms carriage that is entirely within the individual’s control.

In this regard, it also bears emphasis that the gun

possessors at issue here are unlawful users of or addicted to controlled substances. 18 U.S.C. § 922(g)(3).

The colonial generation had no qualms about imposing much stricter penalties than firearms restrictions

on persons who violated the law, including capital

punishment or estate forfeiture. See, e.g., United

States v. Duarte, 137 F.4th 743, 756 (9th Cir. 2025).3

It follows that, if colonial legislatures imposed greater

restrictions on those who were perceived to be dangerous, the lesser restriction of temporary disarmament

fits within our historical tradition. Rahimi, 602 U.S.

at 682.

We highlight the following laws that reflect the

principle that legislatures may temporarily disarm individuals perceived to be dangerous: laws restricting

drunkards, the mentally ill, minors, and individuals

perceived to be threats to others.

3 See also Act of Feb. 21, 1788, ch. 37 (N.Y. Laws 664-665) (au-

thorizing the death penalty for theft of goods worth over five

pounds); Act of Sept. 29, 1773 (Ga.), in Robert Watkins and

George Watkins, A Digest of the Laws of the State of Georgia, 184

(1880) (providing that a horse or cattle thief “be publicly whipped

on his bare back three several times, and receive at each time

thirty-nine lashes, and also shall be branded on the shoulder

with the letter R”); Act of Mar. 24, 1787, ch. 65 (N.Y. Laws 499500) (authorizing “corporal punishment * * * by whipping” for

the fraudulent taking or carrying away of goods worth “five

pounds * * * or under”); Act of March 31, 1785, 1788, ch. 47 (N.Y.

Laws 106-107) (those convicted of obtaining funds by false pretenses were to be sentenced to “corporal punishment (not extending to life or limb or exceeding thirty-nine lashes)”).

11

A. Laws Restricting Alcohol Users Are Analogous To Section 922(g)(3).

At the Founding, alcohol consumption, unlike

drug use, was commonplace, and the Founders were

aware of the risk that alcohol could cause a lapse in

judgment. See generally Matthew Hale, 1 Historia

Placitorum Coronae: The History of the Pleas of the

Crown (London, 1736). For that reason, multiple

courts have found that historical laws regulating alcohol are “the next-closest ‘historical analogue’ that we

can look to” in assessing laws regulating drug users.

E.g., United States v. Contreras, 125 F.4th 725, 732

(5th Cir. 2025). Early American regulation restricted

drunkards, and other alcohol users, in a variety of

ways. These laws can be grouped into at least five categories.

First, the common law and colonial legislatures

severely restricted “habitual drunkards,” frequently

lumping them together with those of “unsound mind”

in recognition of the severe impact that alcohol can

have on decision-making, judgment, and control, and

the resulting threat to safety. The common law recognized drunkenness as a type of dementia, and that for

habitual drunkards, this disability could be long lasting. As Sir Matthew Hale wrote, “[t]he third sort of

dementia is that, which is dementia affectata, namely

drunkenness.” Hale, 32. Blackstone agreed. William

Blackstone, 4 Commentaries on the Laws of England

26, 64 (Dublin, 1770).

For example, an early post-colonial Pennsylvania

law permitted courts to commit “habitual drunkards”

or “lunatics” to “the custody and care” of a guardian,

reflecting a severe loss of rights for those deemed to

be mentally unsound from drink or mental illness.

1835 Pa. Laws 589. A later Virginia law is especially

12

notable as it permitted the court to commit not only

habitual drunkards, but also “opium eaters,” to a local

hospital and kept under treatment until it was “safe”

to allow them “to go at large.” 1876 Vir. Acts 248.

Other, similar laws permitted courts to commit habitual drunkards to “asylums,” reflecting a severe restriction on liberty.4 Numerous other laws imposed

terms of imprisonment on habitual drunkards.5

4 On lunacy and asylums, see, e.g., Blackstone, 1 Commentaries

on the Laws of England 304-305 (Oxford, Clarendon Press 1768);

Act of Mar. 30, 1876, ch. 40, § 8, 19 Stat. 10 (1876) (D.C.) (allowing imprisonment in an “asylum” for up to one year); Act of July

25, 1874, ch. 113, § 1, 1874 Conn. Pub. Acts 256 (same); Act of

Mar. 28, 1872, ch. 996, §§ 10-11, 1872 Ky. Acts, Vol. 2, at 523524 (allowing civil commitment of “any habitual drunkard”); Act

of Mar. 5, 1860, ch. 386, §§ 6-7, 1860 Md. Laws 607-608 (same);

Act of Mar. 27, 1857, ch. 184, § 10, 1857 N.Y. Laws, Vol. 1, 431

(same); Act of Feb. 1, 1866, No. 11, § 10, 1866 Pa. Laws 10 (same).

5 See, e.g., In keepers, Ordinaries. Tipling, Drunkenness, (1661)

(Massachusetts Colony), reprinted in Edward Rawson, The General Laws and Liberties of the Massachusetts Colony 81 (Cambridge, 1672) (authorizing imprisonment of drunks who

“abuse[d]” others “by striking or reviling” them); Act of Oct. 1727,

in The Public Records of the Colony of Connecticut from May,

1727, to May, 1735, Inclusive 128 (Charles J. Hoadly ed., 1873)

(permitting justice of peace to commit “common drunkards”);

Mass. Gen. Stat. ch. 165, § 25-27 (same); Act of May 14, 1718, ch.

15, in 2 Laws of New Hampshire 266 (Albert Stillman Batchellor

ed., 1913) (same); N.H. Gen Stat. ch. 253, sec. 3 (1853) (same);

Act of June 10, 1799, §§ 1, 3, Laws of the State of New Jersey

473-474 (1821) (providing for sentence of “hard labor for any time

not exceeding three calendar months”); Act to Establish a Penal

Code, § 1014, in Revised Statutes of Arizona 753-754 (1887) (allowing imprisonment for a time period “not exceeding ninety

days”); Act of Feb. 14, 1872, § 647, in 2 The Codes and Statutes

of the State of California 1288 (Theodore H. Hittell ed., 1876)

(same); 1873 Nev. Stat. 189-190, Act of Mar. 7, 1873, ch. 114, § 1

(same); Act of Feb. 18, 1876, § 378, in The Compiled Laws of the

Territory of Utah 647 (1876) (same); 1865 R.I. Acts & Resolves

13

Second, early legislatures flatly prohibited “common drunkards” from militia service, a severe punishment given that militia service was a rite of passage

for young American men and being banned from such

service would result in harsh societal judgment. E.g.,

Act of Apr. 20, 1837, ch. 240, 1837 Mass. Acts 273, 273

(excluding “common drunkards” from militia service);

see also David Yassky, The Second Amendment:

Structure, History, and Constitutional Change, 99

Mich. L. Rev. 588, 626–627 (2000) (discussing relationship between “virtue,” community ties, and militia

service). These laws frequently grouped “common

drunkards” together with “lunatics,” “vagabonds,” and

criminals, reflecting a commonsense approach that

persons disposed to excessive drinking could not be

entrusted with military service, which necessarily entailed handling guns.6 These laws are especially notable because they imposed a permanent ban, a recognition that “drunkards” were repeat drinkers who would

inevitably reoffend. See, e.g., Act of Jan. 1840, § 46,

1840 R.I. Pub. Laws 3, 17(reenacted 1843 R.I. Pub.

Laws 1 (June Session)) (“If any non-commissioned officer or private shall become a pauper, vagabond, or

common drunkard, or be convicted of any infamous

197 (January Session), Act of Mar. 15, 1865, ch. 562, §§ 1-2 (three

months); 1884-1885 Idaho Terr. Gen. Laws 200, Act of Feb. 4,

1885, § 1 (thirty days); 1825 Me. Pub. Acts 1034, Act of Feb. 22,

1825, ch. 297, § 4 (any term exceeding 48 hours).

6 See, e.g., Act of Apr. 20, 1837, ch. 240, 1837 Mass. Acts 273, 273;

Act of Jan. 1840, § 46, 1840 R.I. Pub. Laws 3, 17; (reenacted 1843

R.I. Pub. Laws 1 (June Session)); Act of Mar. 28, 1837, ch. 276,

§ 5, 1837 Me. Spec. Acts 421, 424; Act of Nov. 11, 1842, No. 28,

tit. V, § 61, 1842 Vt. Acts & Resolves 27, 37; Act of May 4, 1864,

sec. I, § 2, P.L. 221, in 2 A Digest of the Laws of Pennsylvania

1040 (Frederick C. Brightly, rev., Philadelphia, Kay & Brother

10th ed. 1873).

14

crime, he shall be forthwith disenrolled from the militia.”).

Third, as this Court recognized in Rahimi, American legislatures used surety laws—a form of preventative justice in which offenders or their family members were permitted to post bond to avoid being

jailed—to ensure public order. 602 U.S. at 695-96.

Surety laws were also used to restrict habitual drunkards, following long-standing common-law norms.7 As

with militia restrictions, these laws imposed restrictions that outlasted temporary inebriation, again

reflecting that drunkards had crossed a line and become a societal threat. See, e.g., A Compilation of the

Penal Code of the State of Georgia, with the Forms of

Bills of Indictment Necessary in Prosecutions Under it,

and the Rules of Practice 21 (Howell Cobb ed., Macon,

Joseph M. Boardman 1850) (“Justices of the peace

may bind over to the good behavior all * * * common

drunkards * * *).

Fourth, numerous laws disarmed those under the

influence, recognizing that alcohol, which impedes

judgment and self-control, is a dangerous combination

with guns.8 Some of these laws also restricted

7 Under the surety system, those posting bond were considered

“keepers” of the person at issue and their own fortunes would be

forfeited in case of a violation. 4 Blackstone, Commentaries, 249,

252-253. 1702 Conn. Acts & Laws 91 (“the Surety of the Peace or

good behavior, * * * may and shall be granted * * * against all

and every such person and persons * * * drunkards * * * and if

any such person or persons shall refuse to give surety for the

peace or good behavior, it shall be in the power of any Assistant

or Justice of the Peace, to commit such person or persons to the

common jail, there to remain till delivered according to Order of

Law”).

8 Act XII of Mar. 10, 1655 (Va.) (prohibiting “shoot[ing] any gunns

[sic] at drinkeing [sic]”); (Act of Feb. 16, 1771) in 5 Col. Laws of

15

possession of other weapons that were more commonly used at the time, including knives, daggers,

and sling-shots.9

Fifth, in further recognition that guns and intoxicating substances do not mix, legislatures often

banned guns and gunpowder from places where alcohol was sold or likely to be consumed, such as ballrooms.10

N.Y. 244-246 (1894) (prohibiting intoxicated persons from “discharg[ing] any Gun, Pistol, Rocket, Cracker, Squib or other fire

Work in any House Barn or Other Building or before any Door or

in any Garden, Street, Lane or other Inclosure on the said Ever

or Days within [specified jurisdictions]”); Pa. Cons. Stat., ch. 167,

§ 57 (1780) (forbidding one “appear with his arms and accoutrements in an unfit condition, or be found drunk”); 1867 Kan. Sess.

Laws 25, ch. 12, § 1 (“[A]ny person under the influence of intoxicating drink * * *who shall be found within the limits of this

State, carrying on his person a pistol, bowie-knife, dirk or other

deadly weapon, shall be subject to arrest upon charge of misdemeanor[.]”); 1 Mo. Rev. Stat. ch. 24, Art. I, § 1274, in 1 The Revised Statutes of the State of Missouri, 1879, at 224 (John A.

Hockaday et al. eds.,1879) (similar); 1883 Wis. Sess. Laws 290,

ch. 329, § 3 (“It shall be unlawful for any person in a state of

intoxication, to go armed with any pistol or revolver.”).

9 E.g., Ordinance of July 17, 1894, reprinted in Revised Ordi-

nances of the City of Huntsville, Missouri of 1894, at 58-59 (1894)

(prohibiting carrying any “fire arms, bowie-knife, dirk, dagger,

sling-shot, or other deadly weapon * * * upon or about his person

when intoxicated or under the influence of intoxicating drinks”).

10 New Orleans, Louisiana, Project of Resolution, Art. 1 (Jan. 25,

1804) (“No private persons, no matter what their standing or condition may be, officers, etc. will be allowed to enter the public ball

with any weapon, cane, or cudgel.”); 1852 N.M. Laws 67, § 3 (prohibiting “any person to enter said Ball or room adjoining said ball

where Liquors are sold, or to remain in said balls or Fandangos

with fire arms or other deadly weapons, whether they be shown

or concealed upon their persons”); 1870 Tex. Gen. Laws 63, ch.

46, § 1 (prohibiting carrying any “bowie-knife, dirk or butcher-

16

Putting these restrictions together reveals a key

principle that undergirds the “how” and “why” of Section 922(g)(3): Those who are mentally compromised

by consuming intoxicants threaten others and their

rights may be restricted, including through disarmament, to protect the community.

B. Laws Restricting The Mentally Ill Are

Analogous To Section 922(g)(3).

Founding-era legislatures also restricted persons

deemed dangerous by means of incompetence, including those with mental illnesses. Indeed, legislatures

required that people with mental illnesses be either

confined by the state or assigned a guardian to manage their persons, estates, and affairs.

Long before the Revolution, Massachusetts

adopted a law requiring that individuals deemed “distracted” and “unruly” be put under the supervision of

town selectmen to protect others from harm. Act of

May 3, 1676, reprinted in 5 Records of the Governor &

Company of the Massachusetts Bay in New England

80-81 (Nathaniel v. Shurtleffed, Boston, William

White 1853).

To ensure the safety of their communities, States

enacted similar laws that required either the appointment of a guardian to oversee mentally ill individuals

and their property, or confined those persons to a

knife, or fire-arms” at “a ball room, social party or other social

gathering composed of ladies and gentlemen”); 1869-70 Tenn.

Pub. Acts 23-24, ch. 22, § 2 (prohibiting “any person attending

any fair, race course, or other public assembly of the people” to

carry “any pistol, dirk, bowie-knife, Arkansas tooth-pick, or

weapon in form, shape or size, resembling a bowie-knife, or Arkansas tooth-pick, or other deadly or dangerous weapon”).

17

hospital.11 Only some of these laws allowed for the termination of the restrictions based on an understanding that the conditions may not be permanent.12 These

laws applied a severe restriction on the rights and liberties of individuals falling within their grasp, a much

greater imposition than disarmament alone.

By the time the Fourteenth Amendment was

adopted, several States had expanded the restrictions

to prohibit selling guns and other weapons to persons

“of unsound mind.”13 Such laws demonstrate that for

11 See, e.g., 1776-1789 N.H. Laws 235-237, An Act for the Relief

of Idiots and Distracted Persons (1776) (“if the person, said to be

an idiot * * * the said judge of probate shall assign and appoint

some suitable person or persons to be guardian or guardians of

such idiot, or non-compos, directing and impowering such guardian, or guardians to take care as well of the person, as estates,

both real and personal, of the said idiot or distracted person”);

1780-1788 Mass. Laws 135-136 (1784) (similar); 1788 N.Y. Laws

617, An Act Concerning idiots, lunaticks [sic], and infant trustees

(similar); 1700-1797 Del. Laws 1055-1056 (1793) (similar); Act of

Nov. 17, 1794, in Laws of the State of New-Jersey 125 (William

Paterson rev., Newark, Matthias Day 1800) (similar); 1799 Miss.

Laws 35-38 (similar); 1804 Ohio Laws 163-165 (Ohio) (similar);

1769 Va. Acts 13 (similar).

12 See, e.g., Act of May 3, 1676, reprinted in 5 Records of the Gov-

ernor & Company of the Massachusetts Bay in New England 8081 (Nathaniel V. Shurtleff ed., Boston, William White 1853)

(“also to take care & order the management of their estates in

the times of their distemperature”); 1785 Ky. Act for the Restraint, Maintenance and Cure of Persons Not of Sound Mind,

ch. 87, in 2 William Littell, The Statute Law of Kentucky 578

(1810) (“to retrain and take proper care of him or her, until the

cause of confinement shall cease”); 1792 Va. Ch. 54, in 1 Samuel

Shepherd, Statutes at Large of Virginia from October Session

1792, to December Session 1806, Inclusive 163 (Richmond, 1835)

(similar).

13 See, e.g., 1881 Fla. Laws 87; 1883 Kan. Sess. Laws 159; 1899

N.C. Pub. Laws 20-21.

18

individuals deemed unable to exercise sound judgment, disarmament was an appropriate response, either directly or through commitment.

C. Laws Restricting Minors Are Analogous

To Section 922(g)(3).

Similar concerns about minors carried over from

the English common law, which viewed minors as

lacking sound judgment.14

This view remained prevalent in the Colonies,

where “the prevailing legal understanding was that

those under the age of twenty-one were not able to

make mature, reasonable decisions.” Megan Walsh &

Saul Cornell, Age Restrictions and the Right to Keep

and Bear Arms, 1791-1868, 108 Minn. L. Rev. 3049,

3057 (2024).15 For instance, those under twenty-one

“did not vote or serve on juries, and the law limited

their ability to assert rights in court.” Id. at 3056-57.

Their ability to enter into oaths or binding contracts

was also limited. Id. at 3057.16

And while those between eighteen and twenty-one

could, in some States, serve in a militia, they did so

under a host of restrictions, including gun restrictions. For example, parents, guardians, masters,

or town officials supervised minors’ gun use for militia

14 1 Hale, 25; see also id. at 16-29.

15 See also Holly Brewer, By Birth or Consent 207 (2005).

16 See, e.g., 1 Zephaniah Swift, A System of the Laws of the State

of Connecticut, 216-217 (Windham, 1795); Vermont Constitution

of 1786, ch. 2, art. 18 (1786) (permitting only men over twentyone to take an oath to be entitled to all the privileges “of a freeman of this State”); An Act for the Better Security of Government, Laws of Md. 1777, ch. 20, § 2 (requiring “every free male

person within this state, above eighteen years of age” to take

oath to exercise his rights).

19

practice. Saul Cornell, “Infants” and Arms Bearing in

the Era of the Second Amendment: Making Sense of

the Historical Record, 40 Yale L. & Pol’y Rev. Inter

Alia 1, 15 (2021). It was therefore considered the responsibility of the “parents, master or guardians” to

supply weapons and ensure the young men training

for armed service or battle.17

These same concerns about the specific threat

posed by minors, especially with gun use, continued

after the Founding. Restraints on minors’ access to

firearms remained in place through the nineteenth

century, as States continued to enact laws to prevent

minors from obtaining, carrying, or using guns without supervision from a parent or guardian.18

17 Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1119-20 (11th Cir.

2025); see also Act of May 8, 1792 (1796) (Conn.), in Acts and

Laws of the State of Connecticut, in America 308 (Hartford, Hudson & Goodwin, 1796).

18 An Ordinance as to Retailing Gun Powder, Louisville, State

and Municipal Laws in Force and Applicable To (Passed 1853)

(C. Settle 1857) (“No person shall retail gunpowder to minors under fifteen years of age * * * without authority from his parent or

guardian”); Act of Sept. 8, 1835, ch. 26, § 1–2, Conn. Acts & Laws

1855 (law passed 1835) (“where any minor or apprentice shall be

guilty of any breach of the by-laws relating to the firing of guns,

pistols, crackers, or other fire-works, the parent, guardian, or

master of such minor or apprentice, shall be liable to pay the forfeitures incurred by said by-law”); Act of Mar. 2, 1885, ch. 51, §

1, 1855 Nev. Stat. 51 (“Every person under the age of twenty-one

(21) years who shall wear or carry any dirk, pistol, sword in case,

slung shot, or other dangerous or deadly weapon concealed upon

his person, shall be deemed guilty of a misdemeanor, and shall,

upon conviction thereof, be fined not less than twenty nor more

than two hundred ($200) dollars, or by imprisonment in the

county jail not less than thirty days nor more than six months,

or by both such fine and imprisonment.”); Act of Feb. 2, 1856, no.

26, § 1, 1856 Ala. Acts 17 (“[A]ny one who shall sell or give or

20

D. Laws Restricting Persons Perceived To

Be A Threat Are Analogous To Section

922(g)(3).

Early common law disarmed persons deemed a

threat or engaged in dangerous behavior prior to their

taking actions, laws that later continued to appear in

the Colonies and early States. As Blackstone noted,

“[P]reventive justice is upon every principle, of reason,

of humanity, and of sound policy, preferable in all respects to punishing justice.” 4 Blackstone, 248. For example, over 400 years after the Statute of Northampton was passed, prohibiting individuals from “rid[ing]

armed” through communal spaces punishable by disarmament (Statute of Northampton, 2 Edw. 3, 258 Ch.

3 (1328)), Virginia implemented a near-identical law

prohibiting riding armed in “terror of the Country.”

An Act Forbidding and Punishing Affrays, ch. 49,

1786 Va. Acts 35. Other States enacted similar laws,

with violation resulting in disarmament and imprisonment. Ibid.19 The term of imprisonment lasted until

lend, to any male minor, a bowie knife, or knife or instrument of

the like kind or description, by whatever name called, or air gun

or pistol, shall, on conviction be fined not less than three hundred, nor more than one thousand, dollars.”); An Act to Amend

the Criminal Laws of This State, ch. 81, §§ 2-3, 1856 Tenn. Acts

92, 92 (G.C. Torbett and Company) (similar); New York, New

York, Ordinances of the Mayor, Aldermen and Commonality of

the City, ch. 13, § 6 (Chas. W. Baker 1859) (similar); Ordinance

of Sept. 15, 1859, art. 9, § 4, in Charters and Ordinances of the

City of Memphis 265 (Bankhead rev., Memphis, Saunders,

Oberly & Jones 1860) (similar); An Act to Amend “an Act to Reduce into One the Several Acts in Relation to the Town of Harrodsburg,” ch. 33, § 23, 1860 Ky. Acts 241, 245 (similar).

19 See, e.g., An Act for the Punishing of Criminal Offenders, ch.

11, § 6, 1814 Mass. Laws 240, § 6 (1692)(“[A]nd upon view of such

justice or justices, confession of the party, or other legal conviction of such offence, shall commit the offender to prison, until he

21

the offender found another to pledge for his future behavior with sureties. Ibid.; See generally Cornell, The

Long Arc of Arms Regulation in Public: From Surety

to Permitting, 1328-1928, 2555-56. Other jurisdictions

disarmed persons who had been loyalists during the

Revolution. 20

These laws rest on the same basis as Section

922(g)(3): preventing the possibility of future harmful

behavior from individuals perceived to be a threat to

public order. And as noted, they often went far beyond, and subsumed, penalties like restriction of gun

ownership.

III. As Drugs Became A More Serious Problem,

Legislatures Responded In Ways That Were

Closely Analogous To Their Treatment Of

Other Threatening Behaviors.

A. Drug Use Was Not A Significant Social

Problem Prior To The Civil War.

As noted above, drug use was uncommon during

the Founding era and early Americans did not

find sureties for the peace and good behavior, and seize and take

away his armour or weapons, and shall cause them to be apprized and answered to the king as forfeited”); An Act for Establishing and Regulating Courts of Public Justice Within this Province, 1705 N.H. Laws 1 (same); Francois Xavier Martin, A Collection of Statutes of the Parliament of England in Force in the

State of North Carolina, 60-61 (Newbern 1792) (same).

20 4 Journals of the Continental Congress 205 (1776) (The Conti-

nental Congress “recommended to the several [colonies] * * *, immediately to cause all persons to be disarmed within their respective colonies, who are notoriously disaffected to the cause of

America”) (emphasis omitted); see also Brian DeLay, The Myth

of Continuity in American Gun Culture, 113 Cal. L. Rev. 1, 33-34

(2025) (noting twelve States engaged in disarming loyalists in

Revolutionary era).

22

understand drugs’ harmful effects. See generally 2

Musto, 51; Elizabeth Kelly Gray, Habit Forming:

Drug Addiction in America, 1776-1914, 24, 30 (2023);

Richard J. Bonnie & Charles H. Whitebread II, The

Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana

Prohibition, 56 Va. L. Rev. 971, 985-87, 1010-11

(1970). The harm was not appreciated until later in

the nineteenth and twentieth centuries. See David R.

Buchanan, A Social History of American Drug Use, 22

J. Drug Issues 31, 40 (1992).

This was for multiple reasons. For starters, the

menu of available drugs was limited and those that

did exist were, as a practical matter, available only to

the wealthy. See Gray, 24 (“[N]arcotics were priced beyond the reach of the poor.”).

Moreover, Founding era drugs were much less potent than modern synthetics, such as fentanyl and

crystal methamphetamine, which have led to an explosion of overdoses in recent years. Magdalena Cerda

et al., The Future of the United States Overdose Crisis:

Challenges and Opportunities, 101 Millbank Q. 478,

479 (2023) (discussing sharp increase in overdose

deaths since 2000); Buchanan, 40 (noting emergence

of intravenous drug use in mid-1800s).

The Founding era generation also lacked a scientific understanding of the impact of drugs on physical

health. Physicians initially believed that drugs offered

health benefits, prescribing narcotics to treat various

ailments—heroin for coughs, opium for pain management, and amphetamines for hay fever, melancholy,

and energy. 2 Musto, 56, 68 (heroin and amphetamines); John P. Hoffman, The Historical Shift in the

Perception of Opiates: From Medicine to Social Menace, 22 J. Psychoactive Drugs 53, 56-57 (1990)

23

(opiates). Coca-Cola famously contained cocaine and

was touted as a “brain tonic.” 2 Musto, 64 (quoting

Cecil Munsey, The Illustrated Guide to the Collectibles

of Coca-Cola 315-16 (1972)).

Reflecting this limited awareness, there was no

regulatory framework to address narcotics. The early

Republic permitted unlimited narcotic distribution

and there were no licensing requirements for physicians or pharmacists. Musto, 56-57; Gray, 24 (no age

restrictions or prescription requirements).

Because the Founders lacked a full appreciation

for the perils of drug use and addiction, it is unsurprising that few, if any, Founding era laws restricted

drug use, let alone possession of guns by drug users.

But as the drug problem ballooned and scientific understanding developed, legislatures stepped in, mirroring their earlier response to alcohol abuse and

other dangerous behaviors. We highlight statutory examples from shortly after the Civil War through the

1930s, reflecting the rise of opium use by Civil War

veterans and an increasing drug epidemic.

B. Drug Use Increased After The Civil War

And Legislatures Responded.

The Civil War ushered in a new era of drug use.

During the war, opium-derived morphine was used to

treat battlefield wounds and illness. See Buchanan,

40. Unsurprisingly, after the war ended in 1865, thousands of soldiers had become addicted. Roseann B.

Termini & Rachel Malloy-Good, 50 Years Post-Controlled Substances Act: The War on Drugs Rages on

with Opioids at the Forefront, 46 Ohio N.U. L. Rev. 1,

4-5 (2020). Opium addiction steadily grew after the

Civil War, reaching approximately 4.59 addicts per

24

thousand people by the end of the nineteenth century.

See Buchanan, 39.

As addiction grew, so too did the legislative response. Restrictions took several forms. Some jurisdictions, for example, required that opium and other

drugs be dispensed only by doctors or pharmacists for

legitimate medical issues.21 Others implemented licensing regimes.22 And other jurisdictions outright

prohibited the sale of opium.23

States also made use of existing tools. Several

States, for example, expanded restrictions aimed at

habitual drunkards to incorporate drug abusers.24

Other jurisdictions expanded civil-commitment laws

to include drug addicts.25 Civil commitment forms

21 Act of Feb. 8, 1882, ch. 75, § 3, 1882 Wyo. Acts 163.

22 Act of Mar. 13, 1885, ch. 121, § 1, 1885 N.D. Laws 179.

23 Act of Feb. 21, 1879, ch. 43, § 1, 1879 Dakota Terr. Acts 118.

24 Act of Apr. 6, 1936, No. 82, § 8, 1936 Ala. Gen. Laws 52 (listing

drug addicts alongside habitual drunkards); Act of Feb. 21, 1935,

ch. 63, § 6, 1935 Ind. Laws 161 (same); Act of June 11, 1931, No.

158, § 8, 1931 Pa. Laws 499 (same); Act of July 8, 1936, No. 14, §

2, 1936 P.R. Acts & Res. 128 (same); Act of Mar. 14, 1935, ch.

208, § 8, 1935 S.D. Laws 356 (same); Act of Mar. 23, 1935, ch.

172, § 8, 1935 Wash. Sess. Laws 601 (same); Act of Apr. 6, 1936,

No. 82, § 8, 1936 Ala. Laws 52, (Dangerous Weapons Act) (same).

25 See, e.g., Political Code of the State of California, Tit. V, § 2170,

at 588-89 (1872); Act of July 25, 1874, ch. 113, § 1, 1874 Conn.

Pub. Acts 256; The Revised Statutes of the State of New York

889 (1875); Act of June 18, 1881, ch. 546, §§ 8, 10, 1881 N.Y. Acts

787; Act of Apr. 14, 1881, ch. 67, §§ 1-2, 1881 Ind. Acts 545-46;

Act of Apr. 13, 1895, ch. 74, §§ 1-2, 1895 Colo. Acts 172; Act of

Apr. 17, 1895, ch. 286, § 3, 1895 Mass. Acts 292; 1895 Conn. Acts

561, Incorporating the Darien Home; Act of May 25, 1897, No.

155, § 8, 1897 Mich. Acts 191; Act of Apr. 30, 1901, No. 93, § 1,

1901 Mich. Pub. Acts 134; Act of June 30, 1902, Pub. L. No. 57106, ch. 1329 § 115f, 31 Stat. 524, 525; Act of Apr. 12, 1902, ch.

25

added questions regarding drug addiction. For example, California added questions regarding drug addiction to the forms used by medical examiners to determine whether to involuntarily commit an individual.

Political Code of the State of California, Title III,

§ 2170, at 588 (1872).26 These forms often linked alcohol consumption with drug use in determining a person’s sanity.27

C. As Awareness Of The Dangers Of Drug

Use Grew, Legislatures Restricted The

Sale Of Guns To Drug Addicts.

Over time, the danger of drug addiction became

more apparent and legislatures continued to respond.

Just those perceived to be dangerous could be disarmed to protect the peace, as legislatures saw the

link between drug addiction and gun violence, they

limited gun access for the same reason.

93, § 2, 1902 Iowa Acts 58; Act of Mar. 13, 1872, ch. 75 § 1713a,

56 Code of Va. 881; Act of Apr. 22, 1907 ch. 288, 1907 Minn. Acts

387 et seq.; An Act to Amend Section 3736, No. 121, § 1, 1910 Vt.

Acts & Resolves 125.

26 See, e.g., David Taylor, The Revised Statutes of the State of

Wisconsin 1099 (1872) (“Was the patient ever addicted to the intemperate use of intoxicating drinks, opium or tobacco, or any

improper habits?”); Political Code of the State of California, Title

III, § 2170, at 588 (1872); Act of Apr. 19, 1893, ch. 5 § 20, 1893

Minn. Acts 84, sec. 201 (similar); Act of Apr. 14, 1881, ch. 67, § 2,

1881 Ind. Acts 546 (“Fifteenth. Does, or has he, or she, habitually

used opium, chloral, or other narcotic, and if so, to what extent

and for what time?”); Act of Apr. 17, 1895, ch. 286, § 3, 1895 Mass.

Acts 292 (similar).

27 See, e.g., Political Code of the State of California, Tit. V, § 2170,

at 589 (1872); David Taylor, The Revised Statutes of the State of

Wisconsin 1099 (1872); Act of Apr. 19, 1893, ch. 5, § 20, 1893

Minn. Acts 84; Act of Apr. 17, 1895, ch. 286, § 3, 1895 Mass. Acts

292.

26

Many jurisdictions, for example, began imposing

licensing requirements for concealed carry, which included a good character requirement that likely excluded drug addicts.28 In the early twentieth century,

many States prohibited drug addicts from purchasing

or possessing guns.29

Increased drug use after the Civil War, combined

with greater scientific understanding, resulted in a

significant legislative response. Two important points

emerge: First, the absence of Founding era regulations restricting drug users’ access to guns reflects

that drug use did not become a significant social problem until after the Civil War. Second, as drug use

evolved, legislatures responded to prevent drug users

from harming themselves or others.

28 See, e.g., Act of June 5, 1925, ch. 3, § 7(a), 1925 W. Va. Acts 25;

Ordinance of Mar. 6, 1905, Part 6, ch. 72, §§ 1-5, in Municipal

Code of the City of Albany (Albany 1910) (allowing police to issue

licenses to carry concealed weapons if applicant is “proper and

law abiding person”); Scandia Kan. Ordinance No. 79, An Ordinance Relating to Crimes and Punishments, in 23 Scandia J., Jan

5 1984 (same); John H. Parsons, Town of Montclair: An Ordinance to Regulate the Carrying of Concealed Weapons and to Prohibit the Carrying of the Same Except as Herein Provided,

Montclair Times, May 15, 1897, at 8 (same).

29 See, e.g., Act of Apr. 6, 1936, No. 82, § 8, 1936 Ala. Gen. Laws

52; Act of June 19, 1931, ch. 1098, § 12, 1931 Cal. Stat. 23162317; Act of Feb. 21, 1935, ch. 63, § 6, 1935 Ind. Laws 161; Act of

Apr. 29, 1925, ch. 284, § 4, 1925 Mass. Acts & Resolves 324; Act

of Mar. 30, 1927, ch. 321, § 7, 1927 N.J. Acts 745; Act of June 11,

1931, No. 158, § 8, 1931 Pa. Laws 499; Act of July 8, 1936, No.

14, § 2, 1936 P.R. Acts & Res. 128; Act of Mar. 14, 1935, ch. 208,

§ 8, 1935 S.D. Laws 356; Act of Mar. 23, 1935, ch. 172, § 8, 1935

Wash. Sess. Laws 601; Act of Apr. 6, 1936, No. 82, § 8, 1936 Ala.

Laws 52 (Dangerous Weapons Act).

27

Section 922(g)(3) reflects these same aims and is

therefore well within the Nation’s history and tradition.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

CHARLES A. ROTHFELD

Counsel of Record

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

EUGENE R. FIDELL

Yale Law School*

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

MARK G. HANCHET

WHITNEY A. SUFLAS

NOELLE A. JOLIN

Mayer Brown LLP

1221 Avenue of the

Americas

New York, NY 10020

(212) 506-2500

December 2025

*The representation of amici by a Clinic affiliated

with Yale Law School does not reflect any institutitional views of Yale Law School or Yale University.

APPENDIX

INDEX

Page

LIST OF AMICI CURIA

E ................................ ...

1a

1a

APPENDIX

Amici are the following professors of History, Law,

and English:

Holly Brewer – Burke Chair of American Cultural

and Intellectual History and Associate Professor of History, University of Maryland

Saul Cornell – Paul and Diane Guenther Chair in

American History, Fordham University

Brian DeLay – Preston Hotchkis Chair in the History of the United States and Associate Professor, University of California at Berkeley

Randolph Roth – College of Arts & Sciences

Distinguished Professor, The Ohio State University

Simon Stern – Professor of Law and English, University of Toronto

Stephen Taylor – Professor in the History of Early

Modern England, Durham University

William Treanor – Agnes Williams

Sesquicentennial Professor of Constitutional Law and

History and Dean Emeritus, Georgetown University

Law Center