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

No. 24-1234

In the

Supreme Court of the United States

__________________________________________

UNITED STATES,

Petitioner,

v.

ALI DANIAL HEMANI,

Respondent.

__________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

__________________________________________

BRIEF OF AMICUS CURIAE

CENTER FOR HUMAN LIBERTY IN SUPPORT

OF RESPONDENT AND AFFIRMANCE

__________________________________________

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae

January 30, 2026

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS ............................................ 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ................................................ 1

ARGUMENT ............................................................... 3

I.

The Best Interpretation of Our History and Tradition Is the One Adopted by the Fifth Circuit:

Only Those Actively Using Marijuana May Be

Disarmed. ............................................................ 3

II.

In the Alternative, History and Tradition At

Most Support the Temporary Disarmament of

those Marijuana Users Individually Determined

To Be Physically Dangerous. .............................. 8

III. Under the Nation’s Historical Tradition, Section

922(b)(3) Is Unconstitutional As Applied to Petitioner. ................................................................. 22

CONCLUSION .......................................................... 28

ii

TABLE OF AUTHORITIES

Cases

Page

Bradley v. ATF,

736 F.2d 1238 (8th Cir. 1984) ........................ 27

District of Columbia v. Heller,

554 U.S. 570 (2008)....................................... 1, 3

Kendall v. Ewert,

259 U.S. 139 (1922)......................................... 17

Massachusetts v. Whitney,

71 Mass. 85 (1855) .......................................... 12

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

597 U.S. 1 (2022) .............. 1, 3, 7, 18, 20, 22, 26

North Carolina v. Huntly,

25 N.C. 418 (1843) ............................................ 7

O’Neill v. Alabama,

16 Ala. 65 (1849) ............................................... 5

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ....................... 3, 4

United States v. Harris,

144 F.4th 154 (3d Cir. 2025) ............. 6, 8, 9, 12,

13, 18, 19

United States v. Rahimi,

602 U.S. 680 (2024)........... 3, 5, 7, 12, 17, 19, 21

United States v. Veasley,

98 F.4th 906 (8th Cir. 2024) ........... 4, 5, 7, 9, 13

iii

Statutes

18 U.S.C.

§ 922(g) ............................................................ 23

§ 925(c) ...................................................... 26, 27

1865–66 Ala. Acts 116 ............................................... 11

REVISED STATUTES OF ARIZONA (1887) ...................... 11

2 THE CODES AND STATUTES OF THE STATE OF

CALIFORNIA (Theodore H. Hittell ed., 1876) .. 11

ACTS AND LAWS, OF HIS MAJESTIES COLONY OF

CONNECTICUT IN NEW-ENGLAND

(Albert C. Bates ed., Hartford, 1919) ....... 10, 12

ACTS AND LAWS OF THE STATE OF CONNECTICUT,

IN AMERICA (Hartford, Elisha

Babcock 1786) ............................................. 5, 10

1 LAWS OF THE STATE OF DELAWARE (New Castle,

Samuel & John Adams 1797) ........................... 6

1884–85 Idaho Terr. Gen. Laws 200 ........................ 11

1867 Kan. Sess. Laws 25............................................. 6

LAWS OF THE STATE OF MAINE (1822) ........................ 16

1825 Me. Pub. Acts 1034 ........................................... 11

A DIGEST OF THE LAWS OF MARYLAND

(Thomas Herty ed., Balt., 1799) ....................... 6

5 THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF

THE PROVINCE OF THE MASSACHUSETTS BAY

(Boston, Wright & Potter 1886) ............... 20, 21

THE PERPETUAL LAWS OF MASSACHUSETTS

(Isaiah Thomas ed., Worcester,

1788) .................................................... 10, 15, 16

iv

2 ISAIAH THOMAS & EBENEZER T. ANDREWS, THE

PERPETUAL LAWS OF MASSACHUSETTS

(Boston, 1801) ................................................. 14

1 PRIVATE AND SPECIAL STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS (Boston,

Manning & Loring 1805) .......................... 20, 21

1878 Miss. Laws 175 ................................................... 7

Mo. Rev. Stat. § 1274 (1879) ....................................... 6

1881 Mont. Terr. Laws 81 ......................................... 11

1873 Nev. Stat. 189 ................................................... 11

SAMUEL BRAGG, CONSTITUTION AND LAWS OF THE

STATE OF NEW-HAMPSHIRE (Dover, 1805) ...... 10

THE LAWS OF THE STATE OF NEW HAMPSHIRE

(Concord, Isaac Hill 1811) .............................. 16

WILLIAM PATERSON, LAWS OF THE STATE OF

NEW-JERSEY (New Brunswick, Abraham

Blauvelt 1800) ........................................... 10, 11

5 THE COLONIAL LAWS OF NEW YORK

(Albany, James B. Lyon 1894) ......................... 4

5 LAWS OF THE STATE OF NEW YORK (1821)............... 16

ACTS OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENNSYLVANIA (1819) ................... 16

1871 Pa. Laws 1301................................................... 11

ACTS AND LAWS OF HIS MAJESTIES COLONY OF RHODEISLAND, AND PROVIDENCE-PLANTATIONS IN

AMERICA (Boston, John Allen 1719) ....... 5, 9, 10

THE CHARTER, GRANTED BY HIS MAJESTY, KING

CHARLES II. TO THE GOVERNOR AND COMPANY

OF THE ENGLISH COLONY OF RHODE-ISLAND

v

AND PROVIDENCE-PLANTATIONS (Newport,

Samuel Hall 1767) ............................................ 4

THE PUBLIC LAWS OF THE STATE OF RHODE-ISLAND

AND PROVIDENCE PLANTATIONS

(Providence, Miller & Hutchens 1822) .......... 14

1865 R.I. Acts & Resolves 197 .................................. 11

THE PUBLIC LAWS OF THE STATE OF

SOUTH-CAROLINA: APPENDIX II

(Phila., R. Aitken & Son 1790) ............... 5, 6, 10

THE COMPILED LAWS OF THE TERRITORY OF UTAH

(1876)............................................................... 11

1 THE STATUTES AT LARGE; BEING A COLLECTION OF

ALL THE LAWS OF VIRGINIA, FROM THE FIRST

SESSION OF THE LEGISLATURE IN THE YEAR 1619

(William Waller Hening ed., New York, R. &

W. & G. Bartow 1823) ...................................... 4

JOSEPH TATE, DIGEST OF THE LAWS OF VIRGINIA

WHICH ARE A PERMANENT CHARACTER AND

GENERAL OPERATION (Richmond, Smith &

Palmer, 2d ed. 1841) ......................................... 6

SAMUEL BIRCH, A DIGEST OF THE LAWS OF THE

CORPORATION OF THE CITY OF WASHINGTON

(Washington, D.C., James Wilson 1823) ......... 6

1883 Wis. Sess. Laws 290 ........................................... 6

Other Authorities

1 THEODRIC BECK, ELEMENTS OF MEDICAL

JURISPRUDENCE (1823) .................................... 17

4 WILLIAM BLACKSTONE, COMMENTARIES (1770) ........ 9

vi

1 GEORGE DALE COLLINSON, A TREATISE ON THE LAW

CONCERNING IDIOTS, LUNATICS, AND OTHER

PERSONS NON COMPOTES MENTIS (1812) ....... 14

MICHAEL DALTON, THE COUNTRY JUSTICE

(London, Henry Lintot 1746)............................ 9

DANIEL DAVIS, A PRACTICAL TREATISE UPON THE AUTHORITY AND DUTY OF JUSTICES OF THE PEACE

IN CRIMINAL PROSECUTIONS (2d ed., Boston,

Hilliard, Gray, Little & Wilkins 1828) .......... 11

1 WILLIAM HAWKINS, TREATISE OF THE PLEAS OF

THE CROWN (Elizabeth Nutt 1716) ....... 9, 12, 14

JOHN W. JOY, THE CONNECTICUT CIVIL OFFICER

(18th ed. Hartford, E.E. Dissell

& Co. 1923) ..................................................... 11

2 JOSEPH STORY, COMMENTARIES ON EQUITY

JURISPRUDENCE (1839) ................................... 13

Letter from George Washington to the Pa.

Council of Safety (Dec. 15, 1776),

https://bit.ly/3EZbKN5 ................................... 20

1

INTEREST OF AMICUS 1

The Center for Human Liberty is a nonprofit organization dedicated to defending and advancing individual liberty and freedom, including the rights and

liberties protected by the Constitution. Consistent

with this purpose, the Center for Human Liberty engages in legal efforts, including the submission of amicus briefs, to promote the protection of liberty. Amicus

is interested in this case to ensure that federal regulation of firearms is consistent with the original meaning of the Second Amendment.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The right to keep and bear arms protected by the

Second Amendment is “exercised individually and belongs to all Americans.” District of Columbia v. Heller,

554 U.S. 570, 581 (2008). No one disputes that Respondent’s proposed course of conduct—possessing

commonly owned firearms—falls within the textual

embrace of that right. Under this Court’s precedent,

that places the burden on the Government to justify

its effort to disarm him under 18 U.S.C. Section

922(g)(3) “by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.” New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1, 24 (2022). Petitioner’s assertion that it has

blanket authority to disarm whole categories of people

it deems dangerous—without any individualized, ju1 Pursuant to SUP. CT. R. 37.6, Amicus certifies that no

counsel for any party authored this brief in whole or in part, no

party or party’s counsel made a monetary contribution to fund

its preparation or submission, and no person other than Amicus

or its counsel made such a monetary contribution.

2

dicial determination that they actually pose a physical

danger to anyone—strays far outside the boundaries

of our historical tradition, and the Fifth Circuit was

right to reject it.

The Government argues that those individuals in

the Founding Era most analogous to the marijuana

users disarmed by Section 922(g)(3) today were alcoholics. But the Founders’ treatment of alcoholics confirms the challenged provision’s unconstitutionality.

For as the Fifth Circuit concluded, under the 18thcentury surety and affray regimes and the scattered

American laws that specifically dealt with the problem of carrying arms while intoxicated, an alcoholic’s

right to keep and bear arms could be burdened only so

long as he was actually intoxicated.

There is, to be sure, some evidence of a broader

tradition—one that could potentially support the temporary disarmament of certain marijuana users even

during periods of sobriety. The Founders do appear to

have confined what they termed “common drunkards”

and “lunatics” in workhouses, prisons, or asylums—

groups that could conceivably be analogized to some

users of marijuana—but that confinement was based

on an individualized determination that the alcoholic

or mentally ill individual actually posed a risk of physical dangerousness. The Government’s assertion that

historical tradition supports the even broader authority to disarm people without such an individualized

determination is based on a misunderstanding of the

history. Even under this alternative understanding of

what the Founding-Era regulatory tradition allowed,

then, Section 922(g)(3) can constitutionally be applied

to marijuana users only if the Government demonstrates that a person’s marijuana use poses a threat

3

of physical danger. The Government’s assertion that

it can disarm people it deems dangerous without any

need for such an individualized judicial determination

is starkly at odds with “the history that the Constitution actually incorporated.” United States v. Rahimi,

602 U.S. 680, 723 (2024) (Kavanaugh, J., concurring).

ARGUMENT

I.

The Best Interpretation of Our History and

Tradition Is the One Adopted by the Fifth

Circuit: Only Those Actively Using Marijuana May Be Disarmed.

There is no dispute that Petitioner’s “proposed

course of conduct” falls within the Second Amendment’s “plain text.” Bruen, 597 U.S. at 32. “Marijuana

user or not, [he] is a member of our political community,” United States v. Connelly, 117 F.4th 269, 274

(5th Cir. 2024), and he simply wishes to “have weapons,” Heller, 554 U.S. at 582. Under this Court’s Second Amendment framework, that means that the Government bears the burden of “justify[ing] its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.”

Bruen, 597 U.S. at 24.

The Fifth Circuit was correct: under the best interpretation of our historical tradition, the Government cannot bear that burden. As Petitioner acknowledges, because the Founders “were not familiar with

drug use or the modern drug trade,” the closest

Founding-Era analogues to Section 922(g)(3)’s restriction on marijuana users are early-American “laws

restricting the rights of drunkards.” Pet.Br.18, 27

(cleaned up). But the clearest of these Founding-Era

restrictions applied only to “misuse of weapons while

4

intoxicated.” Connelly, 117 F.4th at 280. “Disarmament” of the drunkard even when not intoxicated, by

contrast, “was not an option” under these laws. United

States v. Veasley, 98 F.4th 906, 911 (8th Cir. 2024).

A 1655 statute from Virginia, for example,

banned “shoot[ing] any gunns at drinkeing.” Act XII

of Mar. 10, 1655, reprinted in 1 THE STATUTES AT

LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA 401–02 (William Waller Hening ed., New York,

R. & W. & G. Bartow 1823). The law appears to have

been primarily motivated by the need to preserve gunpowder for defense against Indian attacks. Id. Likewise, a 1731 Rhode Island law forbad anyone to “fire

any Gun, or Pistol” within a town in the Colony “or in

any Tavern in the same, after Dark.” Act for Preventing Mischief, in THE CHARTER, GRANTED BY HIS MAJESTY, KING CHARLES II. TO THE GOVERNOR AND COMPANY OF THE ENGLISH COLONY OF RHODE-ISLAND AND

PROVIDENCE-PLANTATIONS 120 (Newport, Samuel

Hall 1767). And a 1771 New York law prohibited any

person from “fir[ing] or discharg[ing] any Gun, Pistol,

Rocket, Cracker, Squib or other fire Work” in certain

populated areas of the Colony in the days surrounding

New Years, due to the “many Mischiefs” and “great

Terror” caused “by persons going from House to

House, with Guns and other Fire Arms and being often intoxicated with Liquor” during New Years’ celebrations. Act of Feb. 16, 1771, ch. 1501, reprinted in 5

THE COLONIAL LAWS OF NEW YORK 244 (Albany,

James B. Lyon 1894).

These laws are scattered and somewhat equivocal—they come from only three Colonies, were enacted

before the Revolution, and do not appear to have entirely focused on the public-safety risks of mixing fire-

5

arms with alcohol. But they are consistent with the

two broader and well-established legal traditions of

firearm regulation recognized by this Court in

Rahimi: “ ‘going armed’ laws” and “surety laws.” 602

U.S. at 695–97. “Going armed” laws prohibited as a

species of “affray” the “offense of arming oneself to the

Terror of the People.” Id. at 697 (quoting THEODORE

BARLOW, THE JUSTICE OF THE PEACE: A TREATISE 11

(1745)) (cleaned up). They applied where a person

used arms “in such manner as to strike terror to the

people,” O’Neill v. Alabama, 16 Ala. 65, 67 (1849), and

almost certainly would have barred an intoxicated individual from using or brandishing his arms in a terrifying and dangerous manner due to his drunkenness, see Veasley, 98 F.4th at 917.

Surety laws, for their part, essentially “authorized magistrates to require individuals suspected of

future misbehavior to post a bond.” Rahimi, 602 U.S.

at 695. The surety system “could be invoked to prevent

all forms of violence,” id., and that included the risk of

violence due to intoxication. Late-eighteenth-century

and early-nineteenth-century laws in Rhode Island,

Connecticut, South Carolina, Virginia, Delaware,

Maryland, and the District of Columbia all required

those found drunk to provide sureties to guarantee the

peace. See An Act for Establishing Weights and

Measures throughout this Colony, in ACTS AND LAWS

OF HIS MAJESTIES COLONY OF RHODE-ISLAND, AND

PROVIDENCE-PLANTATIONS IN AMERICA 11 (Boston,

John Allen 1719); An Act Against Breaking the Peace,

reprinted in ACTS AND LAWS OF THE STATE OF CONNECTICUT, IN AMERICA 189 (Hartford, Elisha Babcock

1786); An Act for Repressing the Odious and Loathsome Sin of Drunkenness, § 6 (1606), in THE PUBLIC

LAWS OF THE STATE OF SOUTH-CAROLINA: APPENDIX II

6

at 26 (Philadelphia, R. Aitken & Son 1790); Act of Dec.

26, 1792, ch. 141, § 1, in JOSEPH TATE, DIGEST OF THE

LAWS OF VIRGINIA WHICH ARE A PERMANENT CHARACTER AND GENERAL OPERATION 756 n.2 (Richmond,

Smith & Palmer, 2d ed. 1841); Act of Dec. 16, 1812, in

SAMUEL BIRCH, A DIGEST OF THE LAWS OF THE CORPORATION OF THE CITY OF WASHINGTON 141 (Washington,

D.C., James Wilson 1823); Act Against Drunkenness,

Blasphemy, and to Prevent the Grievous Sins of Prophane Cursing, Swearing, and Blasphemy, ch. 67, §§

1–3, in 1 LAWS OF THE STATE OF DELAWARE 173–74

(New Castle, Samuel & John Adams 1797) (punishing

drunkenness and requiring drunks who abused arresting officers to be “bound to his or her good behaviour” as “breaker[s] of the peace”); A DIGEST OF THE

LAWS OF MARYLAND 206 (Thomas Herty ed., Baltimore, 1799). Under this application of the surety regime, “[d]runks had to promise not to break the peace,

lest they be locked up and thus disarmed.” United

States v. Harris, 144 F.4th 154, 159 (3d Cir. 2025).

Finally, these Founding-Era protections against

the danger posed by going armed while intoxicated are

likewise consistent with the handful of statutes enacted in the late nineteenth century that specifically

targeted the use of firearms by individuals under the

influence. Kansas barred “any person under the influence of intoxicating drink” from “carrying on his person a pistol, bowie-knife, dirk or other deadly

weapon.” 1867 Kan. Sess. Laws 25, ch. 12, § 1. Missouri and Wisconsin had similar laws. See Mo. Rev.

Stat. § 1274 (1879); 1883 Wis. Sess. Laws 290, ch. 329,

§ 3. And Mississippi made it unlawful to knowingly

sell certain weapons and ammunition to “any person

. . . intoxicated.” 1878 Miss. Laws 175, ch. 46, § 2. Because the meaning of the Second Amendment was

7

fixed in 1791 by those who ratified it, these nineteenth-century laws “do not provide as much insight

into its original meaning as earlier sources” and could

not support an interpretation of the Amendment “inconsistent with the original meaning of the constitutional text.” Bruen, 597 U.S. at 36 (cleaned up) (emphasis in original). These later statutes are in fact

broadly consistent with the Founding-Era restrictions

on the use of arms while intoxicated, however, and so

they provide “yet further confirmation” of that earlier

historical tradition. Id. at 20.

They also provide further confirmation of the

limits of that regulatory tradition: none of these regulations prevented anyone from keeping or carrying

arms while sober. The statutes specifically concerning

drunkenness—both before the Founding and after the

Civil War—were on their face limited to the use or carrying of firearms while in an active state of intoxication. And to the extent that Founding-Era affray law

incidentally criminalized carrying arms in a terrifying

manner due to intoxication, that prohibition likewise

lasted only so long as the intoxication—and thus the

alcohol-induced terrifying behavior—subsisted. See

North Carolina v. Huntly, 25 N.C. 418, 423 (1843); see

also Bruen, 597 U.S. at 45; Rahimi, 602 U.S. at 697–

98; Veasley, 98 F.4th at 917.

The same is true of surety laws. The Government

disputes this—offering a different interpretation of

the surety tradition, which it puts forward as one of

the chief historical pillars of its argument—but it is

mistaken. The Government points to some FoundingEra treatises that described the surety laws as extending to all “drunkards,” and it concludes from this

that these laws “subjected habitual drunkards to

8

prophylactic restrictions that were not limited to exigent bouts of drunkenness.” Pet.Br.22. But even if

that is so, the meaningful burden imposed by surety

laws—forfeiture of the surety and, in some cases perhaps, imprisonment in the event that the individual

broke his pledge of good behavior—only kicked in if

his actual drunkenness caused him to actually pose a

threat of physical dangerousness. See Harris, 144

F.4th at 163. It is conceivable that someone bound to

sureties because of repeated, past drunkenness might

be found to have forfeited the sureties based on violent

behavior committed while sober. But in such an instance, the application of the surety law would have

nothing to do with intoxication—and would thus fail

to provide any historical support for Section 922(g)(3).

II.

In the Alternative, History and Tradition At

Most Support the Temporary Disarmament

of those Marijuana Users Individually Determined To Be Physically Dangerous.

Accordingly, as the court below found, the clearest historical tradition at the Founding at most justifies laws disarming individuals while they are under

the influence of alcohol (or, by analogy, marijuana),

but that tradition does not provide any historical basis

for disarming substance users even during periods of

sobriety. There is, however, some historical evidence

of a broader Founding-Era tradition of disarming

those whose addiction to alcohol rendered them dangerous even when not under the influence. The Court

could, in the alternative, rely on that tradition to uphold Section 922(g)(3) in some applications. See Harris, 144 F.4th at 158–65; Veasley, 98 F.4th at 912–18.

The Government claims to identify a broader tradition

still—one that would justify disarmament of all mari-

9

juana users apart from any individualized evidence of

dangerousness—but its reading is based on a mistaken understanding of several historical sources, and

this Court should not adopt it.

A. As the Third Circuit has recounted, there is

some evidence that magistrates at the Founding had

authority to imprison or otherwise confine individuals

whose intense addiction to alcohol placed them in the

juridical category of “common drunkards.” This tradition appears to have grown out of the English surety

system discussed above. In his celebrated Commentaries on the Laws of England, Blackstone wrote that

“common drunkards” were among the types of people

“that be not of good fame,” whom a justice could “bind

over to the good behaviour” with sureties. 4 WILLIAM

BLACKSTONE, COMMENTARIES *256 (1770). William

Hawkins’s Treatise of the Pleas of the Crown agreed,

adding that magistrates had “just Cause to suspect”

that “common Drunkards” were “dangerous, quarrelsome, or scandalous.” 1 WILLIAM HAWKINS, TREATISE

OF THE PLEAS OF THE CROWN 132 (Elizabeth Nutt

1716); see also MICHAEL DALTON, THE COUNTRY JUSTICE 289 (London, Henry Lintot 1746).

The Founders continued this regulatory tradition

on this side of the Atlantic. As the Government recounts, between 1719 and 1790, Rhode Island, Connecticut, and South Carolina enacted statutes authorizing local magistrates or justices of the peace to require drunkards to give sureties of good behavior. An

Act for Establishing Weights and Measures throughout this Colony, in ACTS AND LAWS OF HIS MAJESTIES

COLONY OF RHODE-ISLAND, supra, at 11; An Act

Against Breaking the Peace, reprinted in ACTS AND

LAWS OF THE STATE OF CONNECTICUT, supra, at 189;

10

An Act for Repressing the Odious and Loathsome Sin

of Drunkenness, § 6 (1606), in THE PUBLIC LAWS OF

THE STATE OF SOUTH-CAROLINA: APPENDIX II, supra, at

26.

Eighteenth-century American law also began

providing that “common drunkards” could be imprisoned or confined in a “workhouse” for a time. A 1727

statute in Connecticut, for example, authorized

county authorities to construct a “House of Correction” and charged local justices “to send and commit

unto the said House . . . all . . . Common Drunkards.”

Act of Oct. 12, 1727, ch. 1, in ACTS AND LAWS, OF HIS

MAJESTIES COLONY OF CONNECTICUT IN NEW-ENGLAND 344 (Albert C. Bates ed., Hartford, 1919). In

1788, Massachusetts similarly provided for the establishment of “houses of correction” and authorized

county justices of the peace to commit all “common

drunkards” there. Act of Mar. 26, 1788, in THE PERPETUAL LAWS OF MASSACHUSETTS 347 (Isaiah Thomas

ed., Worcester, 1788). A 1791 New Hampshire law

likewise authorized local authorities to build “a house

of correction” or “a workhouse,” and authorized justices of the peace to commit “common drunkards”

“unto the county house of correction, to be kept and

governed according to the rules and orders of such

house.” Act of Feb. 15, 1791, in SAMUEL BRAGG, CONSTITUTION AND LAWS OF THE STATE OF NEW-HAMPSHIRE 299 (Dover, 1805). And in 1799, New Jersey also

directed justices of the peace, upon conviction, to commit “disorderly persons,” including “common drunkards,” to the local “work house.” Act of June 10, 1799,

§§ 1, 3, in WILLIAM PATERSON, LAWS OF THE STATE OF

NEW-JERSEY 410 (New Brunswick, Abraham Blauvelt

1800).

11

This tradition continued into the nineteenth century, with ten states enacting similar statutes between 1825 and 1887. 2 And many justice of the peace

manuals in these States also echoed those provisions.

See, e.g., DANIEL DAVIS, A PRACTICAL TREATISE UPON

THE AUTHORITY AND DUTY OF JUSTICES OF THE PEACE

IN CRIMINAL PROSECUTIONS 255 (2d ed., Boston, Hilliard, Gray, Little & Wilkins 1828). Connecticut’s handbook offered an instructive description of the category

of “common drunkard” covered by this historical tradition, explaining that “[t]he crime of drunkenness is

distinct from that of being a common drunkard; the

former is punished by a fine of not more than twenty

dollars, or imprisonment not more than thirty days,

but in the latter case the offender may be sentenced to

the work-house.” JOHN W. JOY, THE CONNECTICUT

CIVIL OFFICER 531 (18th ed. Hartford, E.E. Dissell &

Co. 1923).

Because “[t]emporary imprisonment required

temporary disarmament,” Harris, 144 F.4th at 161,

the fact that this tradition burdened “common drunkards” with imprisonment or confinement provides

2 Act of Feb. 22, 1825, ch. 297, § 4, 1825 Me. Pub. Acts 1034;

Act of Mar. 15, 1865, ch. 562, §§ 1–2, 1865 R.I. Acts & Resolves

197; Act of Dec. 15, 1865, No. 107, § 1, 1865–66 Ala. Acts 116; Act

of June 2, 1871, No. 1209, § 2, 1871 Pa. Laws 1301–02; Act of

Feb. 14, 1872, § 647, in 2 THE CODES AND STATUTES OF THE STATE

OF CALIFORNIA 1288 (Theodore H. Hittell ed., 1876); Act of Mar.

7, 1873, ch. 114, § 1, 1873 Nev. Stat. 189–90; Act of Feb. 18, 1876,

§ 378, in THE COMPILED LAWS OF THE TERRITORY OF UTAH 647

(1876); Act of Feb. 22, 1881, § 1, 1881 Mont. Terr. Laws 81–82;

Act of Feb. 4, 1885, § 1, 1884–85 Idaho Terr. Gen. Laws 200; Act

to Establish a Penal Code, tit. XVII, § 1014, in REVISED STATUTES

OF ARIZONA 753–54 (1887).

12

some justification for “the lesser restriction of temporary disarmament” imposed by Section 922(g)(3),

Rahimi, 602 U.S. at 682. Importantly, however, this

burden was based on a particularized finding of dangerousness. The surety system obviously “involved judicial determinations of whether a particular defendant” posed a risk of breaching the peace, id. at 699,

and the workhouse statutes likewise authorized confinement only “[u]pon due Conviction of” the offense of

being a common drunkard, Act of Oct. 12, 1727, in

ACTS AND LAWS, OF HIS MAJESTIES COLONY OF CONNECTICUT, supra, at 344.

Moreover, the regulatory tradition burdened

“common drunkards” in this way because they posed a

risk of dangerousness. Hawkins’s treatise made that

clear, stressing that sureties could be required of a

common drunkard because of the “just Cause to suspect” that he was “dangerous.” HAWKINS, supra, at

132. And the workhouse laws were in accord: as Massachusetts’s highest court explained in an 1855 case

interpreting that state’s statute, a “common drunkard” was different from both a “habitual drunkard”

and a “drunkard” simpliciter because being a common

drunkard entailed “offence to the public peace and

good order.” Massachusetts v. Whitney, 71 Mass. 85,

87–88 (1855).

Accordingly, this regulatory tradition provides

some support for analogous modern laws temporarily

disarming those marijuana users who the government

finds, after an individualized proceeding, pose a risk

of dangerousness because of their marijuana use. But

it does not support the Government’s suggestion that

it has the blanket authority to disarm “categories of

persons who pose a special danger of misuse, includ-

13

ing habitual drug users” without any “individualized

showing[ ]” of dangerousness. Pet.Br.12, 40.

B. This understanding of the government’s authority to temporarily disarm specific marijuana users

who are found to pose a risk of danger is further confirmed by another potentially analogous regulatory

tradition: the treatment of those suffering from dangerous mental illness. As the Third and Eighth Circuits have explained, the “legal view of mental illness”

at the Founding was that it was “a transitory condition, just like intoxication.” Veasley, 98 F.4th at 913.

Indeed, “[t]hose who suffered from bouts of mental illness were called ‘lunatics,’ drawn from the Latin word

for the moon, on the belief that they ‘had lucid intervals, sometimes enjoying their senses, and sometimes

not, and that frequently depending on the change of

the moon.’ ” Harris, 144 F.4th at 160 (brackets omitted) (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES

*304). Legal regulation of the mentally ill thus provides a potentially apt analogy for regulation of those

who suffer temporary mental impairment due to marijuana use.

And the legal treatment of the mentally ill closely

tracked the treatment of common drunkards: it provided for government-enforced confinement only after

an individualized determination of dangerousness. As

Joseph Story explained, the mentally ill could be declared “lunatics” by a court of chancery only after a

full trial by jury. 2 JOSEPH STORY, COMMENTARIES ON

EQUITY JURISPRUDENCE § 365 (1839). That proceeding

provided the allegedly disabled person with the full

panoply of procedural protections, including the right

to be present at the trial, to know in advance the nature of the charges and evidence against him, to call

14

witnesses and present evidence, and to appeal. 1

GEORGE DALE COLLINSON, A TREATISE ON THE LAW

CONCERNING IDIOTS, LUNATICS, AND OTHER PERSONS

NON COMPOTES MENTIS 129–30, 160–62 (1812).

Moreover, the ill individual could be committed

to government custody—and consequently disarmed—

only if “dangerously insane,” or “so furiously mad as

to render it dangerous to the peace or the safety of the

good people” to leave the person free. See, e.g., An Act

vesting Justices of the Peace with certain powers in

Criminal Cases (1798, 1813, 1822), § 7, in THE PUBLIC

LAWS OF THE STATE OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS 149–50 (Providence, Miller &

Hutchens 1822). The confinement lasted only “till he

or she be restored to his right mind.” Act of Feb. 27,

1798, ch. 61, § 3, in 2 ISAIAH THOMAS & EBENEZER T.

ANDREWS, THE PERPETUAL LAWS OF MASSACHUSETTS

457 (Boston, 1801); accord HAWKINS, supra, at 2 (“a

dangerous Madman may be kept in Prison till he recover his Senses”).

The Founders’ treatment of the mentally ill thus

strongly confirms the conclusion reached above: while

our historical tradition of firearms regulation may be

said, by analogy, to support the temporary disarmament of individuals whose unlawful use of marijuana

renders them actually dangerous, it simply does not

cede the Government the power to disarm people

based on the Government’s mere assertion that this is

generally so—and without some form of individualized judicial determination, reached after due process,

that they are dangerous and likely to use their firearms to physically harm others.

C.1. The Government’s assertion that it can disarm marijuana users as a class—without providing

15

for any “individualized showings” of dangerousness,

Pet.Br.40—is based on the misinterpretation of several additional categories of historical laws that are in

fact not sufficiently analogous to justify Section

922(g)(3). The Government places prominent weight,

for example, on what it calls “civil-commitment laws”

that “provided for habitual drunkards to be committed

to asylums, placed in the custody of guardians, or

both, in the same manner as lunatics.” Id. at 20–21. It

is true that in addition to drunkards plano and “common drunkards” who could be confined if found dangerous, the Founders’ law recognized an additional

category of “habitual drunkards,” who could be placed

in guardianship and, in some cases, committed to an

asylum or workhouse, in the same manner as nondangerous lunatics. However, the justification (i.e.,

the “why”) for these regulations was totally disanalogous to Section 922(g)(3) (or the historical traditions

discussed above): rather than protecting the public

peace and safety, these laws were wholly designed to

protect the property of the habitual drunkard.

Massachusetts’s 1784 statute was typical. It began by noting that “excessive drinking” sometimes

caused individuals to “spend, waste or lessen [their]

estate[s], as thereby to expose [themselves], or [their]

famil[ies], or any of them to want for suffering circumstances, . . . [and] endanger or expose the town[s] to

which [they] belong[ ], . . . to charge or expense for the

maintenance or support of [them].” Act of Mar. 10,

1784, in THE PERPETUAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, supra, at 102–03. Accordingly, the statute authorized local officials to lodge a

complaint against such habitual drunkards to the

Judge of Probate, who after appropriate process,

“shall appoint . . . guardian or guardians to such per-

16

son” to manage their estates “under similar obligations for a faithful discharge of their trust, as guardians appointed for idiots, lunatics, or for persons non

compos mentis.” Id. Pennsylvania’s 1818 law was similar: it authorized the court of common pleas, after individualized process, to determine that a person “by

reason of habitual drunkenness, has become incapable of managing his or her estate, and is wasting and

destroying the same,” and to “appoint at least two persons, who shall not be heirs or next of kin to said person, to be guardians and trustees of the said person,”

who “shall have the care and management of the real

and personal estate of the said habitual drunkard.”

Act of Feb. 25, 1819, ch. XLIX, §§ 1–2, in ACTS OF THE

GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENNSYLVANIA 74–75 (1819). New Hampshire, Maine, and

New York all enacted similar “habitual drunkard”

laws in the Early Republic. See Act of Dec. 24, 1805,

in THE LAWS OF THE STATE OF NEW HAMPSHIRE 47

(Concord, Isaac Hill 1811); Act of Mar. 20, 1821, § 53,

in LAWS OF THE STATE OF MAINE 178–79 (1822); Act of

Mar. 16, 1821, ch. 109, §§ 1–4, in 5 LAWS OF THE STATE

OF NEW YORK 99–100 (1821). Several other States

passed similar statutes throughout the nineteenth

century. See Pet.Br.21 n.12.

Petitioner’s authorities themselves confirm that

the justification of these laws was preservation of

property, not public safety. This Court’s 1922 decision

in Kendall v. Ewert did indeed note that “in many

states statutes provide for placing [habitual drunkards] under a guardian or committee,” but the reason

for this “restraint,” the Court explained, was “to preserve their property, not less for themselves than for

those dependent upon them,” because “habitual

drunkards are not competent to properly transact

17

business.” 259 U.S. 139, 146 (1922). And Theodric

Beck’s 1823 treatise explained that New York’s statute “places the property of habitual drunkards under

the care of the chancellor, in the same manner as that

of lunatics,” pointing to an English case discussing a

habitual drunkard “who, when sober, was a very sensible man, but being in a constant state of intoxication, . . . was incapable of managing his property.” 1

THEODRIC BECK, ELEMENTS OF MEDICAL JURISPRUDENCE 376 (1823) (emphases added).

The Government notes that some historical statutes also provided for commitment of habitual drunkards to workhouses or asylums, and it concludes that

under Rahimi, “if ‘imprisonment was permissible’ ”

treatment of these individuals then “the lesser restriction of temporary disarmament” is also permissible. Pet.Br.20–21, 25–26 (quoting Rahimi, 602 U.S. at

699). This line of reasoning distorts the Court’s opinion in Rahimi by truncating the relevant passage.

Rahimi did not hold or imply that any historical tradition that included imprisonment as a penalty is perforce analogous to modern firearm regulations providing for disarmament. Instead, the opinion stated that

“if imprisonment was permissible to respond to the use

of guns to threaten the physical safety of others, then

the lesser restriction of temporary disarmament . . . is

also permissible.” Rahimi, 602 U.S. at 699 (emphasis

added). In other words, it is not imprisonment simpliciter, but imprisonment justified by a risk of physical dangerousness that provides analogous support to

a modern disarming regulation. To justify a modern

firearm regulation, a historical tradition must be “relevantly similar” in terms of both “how and why the

regulations burden a law-abiding citizen’s right to

18

armed self-defense.” Bruen, 597 U.S. at 29 (emphasis

added).

Here, to the extent the regulatory tradition

providing for “civil commitment” of “habitual drunkards” burdened their right to keep and bear arms at

all, Pet.Br.20–21, its “why” is not relevantly similar to

Section 922(g)(3)’s. This tradition was based on the

protection and preservation of the habitual drunkard’s property, not any risk to public safety. And moreover, the historical “habitual drunkard” regulations

all required an individualized judicial determination

that the person in question posed a risk of the relevant

kind; the “how” of these laws thus also does not support the Government’s claim that it can declare whole

“categories of . . . persons “to be “especially dangerous”

without “require[ing] individualized showings.” Id. at

40.

2. The Government also asserts that its interpretation of history is supported by the early-American

surety system. Id. at 22. That argument fails for the

reasons discussed above. See supra, pp. 7–8. Yes,

“[s]urety laws allowed justices of the peace to compel

anyone who posed a risk of future misbehavior . . . to

post bond,” and yes Founding-Era law “often required

drunks to post bonds for their good behavior.”

Pet.Br.22 (quoting Harris, 144 F.4th at 162). But

these surety laws only burdened the right to keep and

bear arms—by requiring forfeiture of the bond or, if it

came to it, “imprisonment,” id.—if the individual actually became intoxicated and broke the peace. See

Harris, 144 F.4th at 163. They thus do not justify disarming marijuana users when they are not using—and

they certainly provide no support for the Government’s assertion that it need not provide any “individ-

19

ualized showings” of danger before disarming marijuana users as a class. Pet.Br.40.

The Government disputes this, claiming that

“Rahimi treated the burden imposed by ‘surety bond,’

. . . as analogous to ‘temporary disarmament.’ ” Id. at

26 (quoting Rahimi, 602 U.S. at 699). That is a misreading of this Court’s decision. Rahimi did conclude

that “[t]he burden Section 922(g)(8) imposes on” persons who pose a risk of domestic violence was relevantly similar to the surety laws in two specific respects: both “involved judicial determinations of

whether a particular defendant” posed a risk of danger, and both imposed burdens “of limited duration.”

602 U.S. at 698–99. But the Court never asserted that

the burden of merely posting a surety was a relevantly

similar penalty to temporary disarmament. To the

contrary, the only aspect of our regulatory tradition

that the Court found to support “the penalty . . . of

temporary disarmament” was the affray or “going

armed” laws—which provided for the even greater

penalty of “imprisonment.” Id. at 699.

3. The Government also attempts to support the

claim that it may disarm whole “categories of persons”

it deems dangerous by pointing to Revolutionary-Era

laws disarming loyalists and Early-American laws

disarming rebels. Pet.Br.14–15. These historical laws

are plainly inapt. Those who had forfeited their rights

of citizenship by adhering to a foreign enemy or engaging in insurrection were not disarmed simply because they posed a risk of danger, they were disarmed

because they were understood as falling outside of the

rights-holding political community altogether.

It is not difficult to understand why most States

disarmed loyalists during the Revolutionary War: af-

20

ter siding with the British invaders during the very

war by which the American States sought to achieve

political independence, these loyalists could scarcely

then lay claim to the rights of citizens of those new

States. The mass disarmament of “non-associators”

(those who refused to swear allegiance and give military support to the patriot cause) was justified on similar grounds—and for the additional reason that the

measure provided the Continental Army with a source

of much-needed armament. 3 See also Bruen, 597 U.S.

at 63 n.26 (dangerous to rely on “military dictates” not

“designed to align with the Constitution’s usual application during times of peace”). And the early disarmament of actual rebels and insurrectionists—such as

those who participated in Shays’ Rebellion—was cut

from the same cloth.

Indeed, in all of these cases, the groups whose

arms were seized were also denied the exercise of

many other fundamental constitutional rights, such

as the right to vote or hold office. 4 That conclusively

shows that the justification for all of these laws was

that the groups in question were understood to have

no constitutional rights in the first place—not that the

Second Amendment somehow gives the government a

Letter from George Washington to the Pa. Council of

Safety (Dec. 15, 1776), https://bit.ly/3EZbKN5. The impressment

of arms from Quakers by some States during this period was justified on similar grounds.

3

4 See, e.g., Act of Mar. 14, 1776, ch. 21, §§ 1–5, in 5 THE

ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVINCE OF

THE MASSACHUSETTS BAY 479–82 (Boston, Wright & Potter 1886)

(loyalists and non-associators); Act of Feb. 16, 1787, §§ 1–3, in 1

PRIVATE AND SPECIAL STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS 145–47 (Boston, Manning & Loring 1805) (Shays’

Rebels).

21

blank check to “disarm[ ] . . . categories of persons” it

deems dangerous. Pet.Br.14.

To the extent the Government cites these laws as

supporting a broader tradition—providing for disarmament not only of those who have alienated themselves from the American political community but also

of those who are merely politically unpopular—any

such tradition is part of “the history that the Constitution left behind.” Rahimi, 602 U.S. at 723 (Kavanaugh, J., concurring). Pre-Revolutionary English

law, it is true, sanctioned the disarmament of “political opponents and disfavored religious groups. By the

time of the Founding, however, state constitutions

and the Second Amendment had largely eliminated

governmental authority to disarm political opponents

on this side of the Atlantic.” Id. at 694 (majority). The

Government thus cannot rely on this discarded part of

our history to support Section 922(g)(3).

4. Finally, the Government seeks to shore up the

case for the challenged provision by noting that “state

and territorial legislatures started to prohibit drug

addicts or drug users from possessing, carrying, or

purchasing handguns in the 1920s and 1930s.”

Pet.Br.29. But those twentieth-century laws arose far

too late in our history to provide any insight into the

Second Amendment’s original meaning. The task this

Court set in Bruen is designed to determine “the

scope” that the Second Amendment was “understood

to have when the people adopted [it].” 597 U.S. at 34.

Because the substantive right to keep and bear arms

was ratified in 1791, Amicus submits that the relevant time period is the Founding Era. Others propose

looking to the period surrounding the right’s incorporation by way of the Fourteenth Amendment in 1868;

22

and the Court has consistently maintained from Heller through Bruen that history throughout the nineteenth century can be used as a confirmatory analytic,

to support conclusions drawn from the Founding history itself. Id. at 36–37. But under any theory, laws

that did not begin to appear until the 1920s come too

late. Indeed, Bruen did not even deign to “address any

of the 20th-century historical evidence” cited by New

York. Id. at 66 n.28.

As explained above, the American historical tradition in the eighteenth and nineteenth centuries at

most justifies disarming marijuana users during periods when they are actually impaired. And there is a

case to be made that it also supports disarming them

for longer periods, including periods of sobriety, if

there is an individualized determination that they are

actually physically dangerous even when not under

the influence. The Government cannot establish a different regulatory tradition that conflicts with this

one—and that would allow disarmament without any

individualized determination whatsoever—based entirely on laws that did not appear until “the 1920s and

1930s.” Pet.Br.29.

III. Under the Nation’s Historical Tradition,

Section 922(b)(3) Is Unconstitutional As Applied to Petitioner.

A. The historical principles developed above

have important implications for Petitioner’s constitutional challenge to the application of Section 922(b)(3)

in this case. As explained in Part I, the best interpretation of the history is that the most analogous individuals at the Founding—those under the influence of

alcohol—could only be disarmed temporarily, during

the duration of their intoxication. On that under-

23

standing of our historical tradition, Respondent’s asapplied challenge to Section 922(g)(3) should be sustained, and the court of appeals’ decision should be affirmed.

Section 922(g)(3) provides, as relevant here, that

“It shall be unlawful for any person . . . who is an unlawful user of . . . any controlled substance . . . to . . .

possess in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g). Respondent’s challenge is best understood as asserting that the application of the phrase “unlawful user of . . . any controlled

substance” is unconstitutional in his circumstances.

Id. Because the Government concedes that its evidence does not establish that Respondent was actively

under the influence of marijuana while in possession

of a firearm, Pet.App.2a, prosecuting him under Section 922(g)(3) is not consistent with our historical tradition of firearm regulation, and the indictment

should be dismissed. 5

B. In Part II, Amicus offered an alternative interpretation of our historical traditions—one that, we

submit, is inferior to the interpretation offered in Part

I but that nonetheless has some support in the Founding-Era history. According to this alternative understanding of our history, the regulatory tradition bearBecause Respondent’s facial challenge to Section

922(g)(3) was denied by the district court and he has not sought

this Court’s review of that denial, no facial challenge is before

this Court. Under this disposition of Respondent’s as-applied

challenge, however, the provision would presumably be facially

unconstitutional as well, since no textually discrete portion of

Section 922 disarms individuals based on the constitutionally

relevant criterion: whether they are actively under the influence

of a controlled substance and thus dangerous.

5

24

ing on the intoxicated and mentally ill (and, by analogy, those under the influence of substances like marijuana) sanctioned their disarmament not only during periods of active intoxication or “lunacy” but also

when their minds were clear—if and only if the government could establish, including in an individualized proceeding with appropriate process, that the individual in question posed an actual risk of physical

dangerousness. If the Court adopts this alternate approach, it may be possible for the Government to show

that Respondent should be disarmed, and the decision

below should be reversed.

The critical criterion, under this reading of historical tradition, is actual dangerousness, rather than

active intoxication. If the Government can establish

that an individual marijuana user is actually dangerous because of his substance abuse, disarming him

under Section 922(g)(3) could be constitutional. While

the Government intimates in its brief before this

Court that Respondent should not be trusted with

firearms, it has not argued or attempted to prove that

Respondent, individually, is actually dangerous. See

Pet.Br.6–7.

It has argued, however, that habitual marijuana

users as a class pose an acute risk of danger. Id. at

23–25, 32–35. If the Court is persuaded by this evidence—or if it believes that the Government may be

able to make such a showing in further proceedings

before the district court or the Court of Appeals—that

would provide another potential route to upholding

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

Government establishes that habitual marijuana users as a class pose a sufficiently serious risk of danger,

and if it establishes through individualized proceed-

25

ings that Respondent is a habitual user of marijuana,

it follows that the key historical element—actual risk

of danger—would be presumptively satisfied, and the

application of Section 922(g)(3) could be constitutional. Put differently, showing that Respondent is a

habitual user of marijuana would, under this approach, entail that he presumptively poses a sufficient

risk of danger to disarm him.

It is important to note, however, that Section

922(g)(3) bars the possession of firearms by both those

who are “addicted to” marijuana and by those who are

“unlawful users of” marijuana. Under this alternative,

in this case it would not suffice for the Government to

show that those addicted to marijuana pose a sufficiently serious risk of danger, because the Government has not shown that Respondent belongs to that

class. Rather, the Government would be required to

show that mere unlawful use of marijuana (if that

term even has a discernable meaning, see Resp.Br.15–

24), short of addiction poses the requisite danger.

Because the key that unlocks Section 922(g)(3)’s

constitutionality remains an actual, particularized

finding of a risk of dangerousness, however, this approach also demands that individuals charged with violating the provision must be allowed to challenge

that application, in court, as unconstitutional in their

particular circumstances. Even if habitual marijuana

use means that a defendant presumptively poses a

risk of danger, it would not mean that the presumption can never be rebutted; it seems quite possible, for

instance, that someone who uses marijuana occasionally and only as a physician-prescribed treatment for

chronic pain could convincingly show that she in particular does not pose any risk of danger. Our historical

26

tradition of firearm regulation, which is keyed to actual dangerousness, requires that she be given the opportunity. And a system of judicial review of as-applied Second Amendment challenges to Section

922(g)(3) provides an appropriate mechanism for implementing this aspect of our historical tradition.

The Government suggests that any “constitutional concerns” about Section 922(g)(8)’s application

in such “marginal cases” are adequately addressed by

“the recently revitalized mechanism under 18 U.S.C.

925(c)” for the discretionary restoration of firearm

rights, without the need for judicial review of as-applied challenges. Pet.Br.40. It contends that the Section 925(c) process is an adequate substitute for “the

individualized dangerousness determination made by

the justices of the peace” in the Founding-Era system,

and that “[g]iven the opportunity for relief under Section 925(c), there is no sound basis for requiring the

government . . . to make a further individualized

showing about the risks that the defendant poses.” Id.

at 42. This contention is badly mistaken.

While Section 925(c)’s discretionary restoration

process is laudable in its place, it is no adequate substitute for an as-applied Second Amendment challenge for multiple reasons. To begin, an individual

seeking the restoration of his Second Amendment

rights bears the burden of establishing that he meets

the standard for rights restoration, see 18 U.S.C.

§ 925(c)—unlike in a Second Amendment challenge,

where “the Government bears the burden of proving

the constitutionality of its actions,” Bruen, 597 U.S. at

24 (quotation marks and citation omitted). Further,

restoration is not a legal entitlement; it is ultimately

a discretionary matter of executive grace—entrusted

27

to the nation’s top, politically appointed law-enforcement officer. And further still, since Section 925(c) directs the Attorney General to consider whether restoration would “not be contrary to the public interest,”

the statute does not even focus her discretion exclusively on the constitutionally relevant consideration:

actual dangerousness. Finally, the fact that the entire

process was moribund for over 30 years and began to

be reinvigorated only months ago starkly illustrates

the politically unstable nature of the process. While

the current administration appears committed to its

robust use, the next administration could eliminate it

with a flick of the pen.

The Government notes that the Attorney General’s discretionary determination is subject to limited

judicial review, Pet.Br.41, but that is no panacea. For

courts review the determination only for abuse of discretion, see Bradley v. ATF, 736 F.2d 1238, 1240 (8th

Cir. 1984)—as befits a statutory scheme that entrusts

a politically appointed officer to determine whether “it

is established to [her] satisfaction” that restoration

“would not be contrary to the public interest,” 18

U.S.C. § 925(c). Section 925(c)’s discretionary, politically charged restoration process simply cannot be

said to obviate the need for plenary judicial review of

an individual’s claim that he poses no risk of danger.

Accordingly, for Section 922(g)(3) to fall within our

historical tradition—even under this alternate, somewhat broader interpretation—judicial review of such

individual challenges must remain available.

28

CONCLUSION

For these reasons, the Court should affirm the

judgment of the Fifth Circuit.

January 30, 2026

Respectfully submitted,

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae