Amicus Curiae Brief — Gabriel Gray, et al., Petitioners v. Kathy Jennings, Attorney General of Delaware, et al.

No. 24-309

In the Supreme Court of the United States

GABRIEL GRAY, et al.,

Petitioners,

V.

KATHY JENNINGS, in her official capacity as

Attorney General of Delaware, et al.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 17 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CALEB A. SECKMAN

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTION PRESENTED

Whether the infringement of Second Amendment

rights constitutes per se irreparable injury.

II

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ...................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 4

I.

Infringement Of The Second Amendment Right

Constitutes Per Se Irreparable Injury ....................... 4

A. The Second Amendment Enshrines A

Crucial Individual Right .......................................... 5

B. No Hierarchy Of Constitutional Rights

Exists ......................................................................... 9

II. Individuals Across The Country Have Been

Deprived Of Their Constitutional Rights ................. 14

Conclusion ........................................................................... 18

III

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ......................................................... 6

Aposhian v. Barr,

958 F.3d 969 (10th Cir. 2020) ......................................... 7

Baird v. Bonta,

81 F.4th 1036 (9th Cir. 2023) ................................... 9, 12

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) ......................................... 1

BST Holdings, LLC v. OSHA,

17 F.4th 604 (2021) ....................................................... 13

Caplin & Drysdale, Chartered v. United

States,

491 U.S. 617 (1989) ....................................................... 11

Dep’t of State v. Muñoz,

144 S. Ct. 1812 (2024) ................................................... 10

District of Colombia v. Heller,

554 U.S. 570 (2008) ..................................... 5, 6, 7, 11, 12

Duncan v. Bonta,

19 F.4th 1087 (9th Cir. 2021) ......................................... 3

Elrod v. Burns,

427 U.S. 347 (1976) ....................................................... 10

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ........................... 8, 9, 11, 12

Free the Nipple-Fort Collins v. City of Fort

Collins,

916 F.3d 792 (10th Cir. 2019) ....................................... 13

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Gordon v. Holder,

721 F.3d 638 (D.C. Cir. 2013) ...................................... 13

Harrel v. Raoul,

144 S. Ct. 2491 (2024) ..................................................... 1

Henry v. Greenville Airport Comm’n,

284 F.2d 631 (4th Cir. 1960) ......................................... 13

Hoop Culture, Inc. v. GAP Inc.,

648 F. App’x 981 (11th Cir. 2016) .................................. 5

Jolly v. Coughlin,

76 F.3d 468 (2d Cir. 1996) ............................................ 13

Jones v. Becerra,

498 F.Supp.3d 1317 (S.D. Cal. 2020) ..................... 15, 16

Jones v. Bonta,

34 F.4th 704 (9th Cir. 2022) ......................................... 16

McDonald v. City of Chicago,

561 U.S. 742 (2010) ..................................................... 1, 7

McDougall v. Cnty. of Ventura,

23 F.4th 1095 (9th Cir. 2022) ......................................... 7

Mock v. Garland,

No. 4:23-CV-00095-O, 2024 WL 2982056

(N.D. Tex. June 13, 2024) ...................................... 14, 15

Morehouse Enters., LLC v. Bureau of

Alcohol, Tobacco, Firearms &

Explosives,

78 F.4th 1011 (8th Cir. 2023) ....................................... 13

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Ng v. Bd. of Regents of Univ. of Minn.,

64 F.4th 992 (8th Cir. 2023) ......................................... 13

Nken v. Holder,

556 U.S. 418 (2009) ......................................................... 4

N.Y. State Rifle & Pistol Assoc. v. Bruen,

597 U.S. 1 (2022) ........................................................... 12

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012) ......................................... 13

Petrol. Expl. v. Pub. Serv. Comm’n of Ky.,

304 U.S. 209 (1938) ....................................................... 10

Plastino v. Koster,

No. 4:12-cv-01316, 2013 WL 1769088

(E.D. Mo. Apr. 24, 2013) .............................................. 17

Robertson v. Baldwin,

165 U.S. 275 (1897) ......................................................... 5

Second Amendment Found., Inc. v. ATF,

702 F.Supp.3d 513 (N.D. Tex. 2023) ..................... 14, 15

Siegel v. LePore,

234 F.3d 1163 (11th Cir. 2000) ..................................... 13

Silvester v. Becerra,

583 U.S. 1139 (2018) ....................................................... 9

Steffel v. Thompson,

415 U.S. 452 (1974) ....................................................... 10

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) ....................................................... 10

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Cruikshank,

92 U.S. 542 (1875) ........................................................... 7

Valley Forge Christian Coll. v. Ams.

United for Separation of Church &

State, Inc.,

454 U.S. 464 (1982) ......................................................... 9

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ....................................................... 10

Walters v. Kemp,

No. 1:20-CV-1624, 2020 WL 9073550

(N.D. Ga. May 5, 2020) ........................................... 16, 17

Winter v. NRDC,

555 U.S. 7 (2008) ............................................................. 4

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) ........................................ 9

Other Authorities

Beatrice Catherine Franklin,

Irreparability, I Presume? On

Assuming Irreparable Harm for

Constitutional Violations in

Preliminary Injunctions,

45 COLUM. HUM. RTS. L. REV. 623

(2014) ................................................................................ 2

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Bertrall L. Ross II,

Inequality, Anti-Republicanism, and

Our Unique Second Amendment,

135 HARV. L. REV. F. 491 (2022) ................................... 6

CHARLES ALAN WRIGHT, ARTHUR R.

MILLER & MARY KAY KANE,

FEDERAL PRACTICE AND PROCEDURE

(3d ed. 2013) .................................................................... 5

David B. Kopel, et al.,

The Human Right of Self-Defense,

22 BYU J. PUB. L. 43 (2007) .......................................... 6

David B. Kopel,

The Natural Right of Self-Defense:

Heller’s Lesson For The World,

59 SYRACUSE L. REV. 235 (2008)................................... 5

David Harmer,

Securing A Free State: Why The

Second Amendment Matters,

1998 BYU L. REV. 55 (1998) .......................................... 8

Douglas Walker, Jr.,

Necessary To The Security Of Free

States: The Second Amendment As The

Auxiliary Right Of Federalism,

56 AM. J. LEGAL HIST. 365 (2016) ................................. 6

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Joseph Blocher,

Categoricalism And Balancing In

First And Second Amendment

Analysis,

84 N.Y.U. L. REV. 375 (2009) ....................................... 11

Joseph E. Sitzmann,

High-Value, Low-Value, And No-Value

Guns: Applying Free Speech Law To

The Second Amendment,

86 U. CHI. L. REV. 1981 (2019) .................................... 12

ST. GEORGE TUCKER,

BLACKSTONE’S COMMENTARIES: WITH

NOTES OF REFERENCE TO THE

CONSTITUTION AND LAWS, OF THE

FEDERAL GOVERNMENT OF THE

UNITED STATES; AND OF THE

COMMONWEALTH OF VIRGINIA

(St. George Tucker ed., 1803) ........................................ 6

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

Some time ago, the Court reminded us of a basic truth:

the Second Amendment is not “a second-class right,

subject to an entirely different body of rules than the

other Bill of Rights guarantees.” McDonald v. City of

Chicago, 561 U.S. 742, 780 (2010) (plurality op.). For too

long, the Second Amendment had functioned as an

amendment in exile, offering only limited rights in a

narrow universe of cases. But the Court has worked to

restore the amendment to its rightful place among the

others, just as the Framers intended. At least at this level,

the right is now getting first-class treatment.

But while McDonald’s admonition is now more than a

decade old, and although the Court has repeated it from

time to time, courts below are still struggling to obey it.

Courts upholding local bans on so-called assault weapons

and large-capacity magazines have seemed especially

prone to “contorting” traditional constitutional principles

and subordinating Second Amendment interests. Harrel

v. Raoul, 144 S. Ct. 2491, 2492 (2024) (statement of

Thomas, J., concerning denial of certiorari). In those

courts, at least, the Second Amendment has become

uniquely “subject to the whimsical discretion of federal

judges.” Bianchi v. Brown, 111 F.4th 438, 483 (4th Cir.

2024) (Richardson, J., dissenting), petition for cert. filed

(Aug. 23, 2024).

That story plays out again here. The Third Circuit, too,

has decided that the Second Amendment is sui generis.

Although it agrees that a First Amendment violation

Under Supreme Court Rule 37.2, amici notified counsel of record

of their intent to file this brief.

*

2

presumptively causes irreparable harm, that’s not so for

the Second Amendment—not in Delaware. Thus, at least

in part of the country, the Second Amendment right is not

thought to be worth protecting in the same way as at least

some other constitutional rights. Challengers seeking to

preserve their right to bear arms in those places must

instead make a special factual showing of a non“generalized” nature, such that even sworn statements

from a person wishing to obtain now-prohibited firearms

won’t do. Pet.App.20a.

But the Third Circuit’s uniquely dismissive attitude

toward Second Amendment rights is wrong. Harms that

deprive individuals of their constitutional rights are

necessarily irreparable. Money cannot make up for a loss,

and there’s no way to undo the damage. All that can be

achieved is the restoration of the right. But for the time

that the right is deprived, the individual suffers. And it’s

especially harmful when the Second Amendment right is

impaired. The individual right to keep and bear arms in

self-defense is foundational to our system of government.

By design, the Second Amendment enshrines a natural

right upon which all other rights are predicated. Thus, the

right permeates every aspect of the nation’s constitutional

scheme.

The good news is that the fix here is relatively simple:

on a successful showing on the other preliminary

injunction factors, a plaintiff who alleges a loss of a

constitutional right—the Second Amendment right

included—should have irreparable harm presumed. That

approach won’t throw open the doors to preliminary relief,

as factors like the likelihood of success and the balance of

harms (not to mention standing) do real work. See

Beatrice Catherine Franklin, Irreparability, I Presume?

On Assuming Irreparable Harm for Constitutional

3

Violations in Preliminary Injunctions, 45 COLUM. HUM.

RTS. L. REV. 623, 666 (2014). But it will be a step toward

addressing the broader problem of enervated Second

Amendment rights.

And again, the problem is indeed a broad one. While

this case is one clean example, Amici States have seen

firsthand how courts across the country have stripped

individuals of their Second Amendment right. So “[i]f the

Second Amendment is ever going to provide any real

protection, something needs to change.” Duncan v.

Bonta, 19 F.4th 1087, 1160 (9th Cir. 2021) (VanDyke, J.,

dissenting), vacated and remanded by 142 S. Ct. 2895

(2022). The judicial isolation of the Second Amendment as

a right apparently unworthy of defense must end. The

Court should grant this Petition to remind the lower

courts (again) that the Second Amendment right is a

fundamental constitutional right that protects all other

rights. To infringe on the Second Amendment right is to

infringe on them all.

SUMMARY OF ARGUMENT

1. Harm is irreparable if—as the name suggests—it

cannot be undone or adequately compensated for after the

fact. Infringements of the Second Amendment right give

rise to one such harm. The Second Amendment effectively

codifies an indispensable natural right: the right to keep

and bear arms in self-defense. This right is critical to a

functioning democracy. Without the Second Amendment,

all other rights are threatened. No wonder, then, that the

Founders made it a cornerstone of the Bill of Rights.

There’s no principled basis to create a constitutional

pecking order like the one the Third Circuit imagined.

But even if there were cause to rank rights, there’s every

reason to believe that the Second Amendment is as

4

valuable as the First—which the Third Circuit placed

above all other rights. The First and Second Amendments

both protect rights that are instrumental to our nation and

system of government. The Founding Fathers made this

much clear, and this Court has repeated the same.

None of this logic is controversial. Most circuit courts

have recognized that constitutional harms are irreparable.

The Third Circuit’s view is in the minority, and this Court

should not allow its warped ruling on irreparability and

constitutional rights to stand as an invitation to other

circuits to take the same path.

2. In fact, reasoning like the Third Circuit’s can

already be seen in decisions across the country. Relying

on an incomplete understanding of the Second

Amendment’s importance, district courts are unclear as to

when such constitutional harms are irreparable. In cases

where laws are later overturned, plaintiffs achieve victory

but still suffer the indignity of having had their Second

Amendment right unjustifiably suspended. In short,

these concerns aren’t academic. The Court should thus

act to address them now.

REASONS FOR GRANTING THE PETITION

I.

Infringement Of The Second Amendment Right

Constitutes Per Se Irreparable Injury.

When a court considers whether to grant a preliminary

injunction, the risk of irreparable injury absent

preliminary relief is one of the two “most critical”

factors—likelihood of success on the merits being the

other. Nken v. Holder, 556 U.S. 418, 434 (2009). To show

this factor, a plaintiff must “demonstrate that irreparable

injury is likely in the absence of an injunction.” Winter v.

NRDC, 555 U.S. 7, 22 (2008). In some instances, even a

5

statutory violation can justify at least a presumption of

irreparable harm. See, e.g., Hoop Culture, Inc. v. GAP

Inc., 648 F. App’x 981, 985 (11th Cir. 2016). And “[w]hen

an alleged deprivation of a constitutional right is

involved … most courts hold that no further showing of

irreparable injury is necessary.” 11A CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,

FEDERAL PRACTICE AND PROCEDURE § 2948.1 (3d ed.

2013).

Yet the Third Circuit found that an infringement on the

Second Amendment right, even if adequately

demonstrated, was insufficient to show irreparable harm.

That decision fails to appreciate the essential nature of the

Second Amendment right while inappropriately

minimizing its value relative to other constitutional rights.

The court should have instead evaluated whether a

constitutional violation was likely established here and

then proceeded accordingly on the harm factor.

A. The Second Amendment

Crucial Individual Right.

Enshrines

A

The Second Amendment right is an old one—in fact,

“[t]he right to arms … is not a right which is granted by

the Constitution.” David B. Kopel, The Natural Right of

Self-Defense: Heller’s Lesson For The World, 59

SYRACUSE L. REV. 235, 236 (2008). Rather, it “is a preexisting natural right which is recognized and protected

by the Constitution.” Id. “The very text of the Second

Amendment implicitly recognizes the pre-existence of the

right and declares only that it ‘shall not be infringed.’”

District of Colombia v. Heller, 554 U.S. 570, 592 (2008).

Thus, the Second Amendment does not espouse a “novel

principl[e]” but instead merely codifies a right “inherited

from our English ancestors.” Robertson v. Baldwin, 165

6

U.S. 275, 281 (1897). Indeed, the right to use arms in selfdefense has long been recognized around the world. See,

e.g., David B. Kopel, et al., The Human Right of SelfDefense, 22 BYU J. PUB. L. 43, 58 (2007) (“The

fundamental general principle of international law is the

personal right of self-defense.” (cleaned up)).

And the right to keep and bear arms’ natural law origin

portends its importance. Legal theorists such as William

Blackstone have described it as an “auxiliary” right that

“serve[s] principally” as a “barrier[] to protect and

maintain inviolate the three great and primary rights[] of

personal security, personal liberty, and private property.”

2 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES:

WITH NOTES OF REFERENCE TO THE CONSTITUTION AND

LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED

STATES; AND OF THE COMMONWEALTH OF VIRGINIA 140

(St. George Tucker ed., 1803); see also Alden v. Maine,

527 U.S. 706, 715 (1999) (citing Blackstone’s works as the

“preeminent authority on English law for the founding

generation”). In that way, the right to keep and bear arms

“serve[s] the purpose of protecting people against

governmental oppression or tyrannical usurpation of

power.” Douglas Walker, Jr., Necessary To The Security

Of Free States: The Second Amendment As The Auxiliary

Right Of Federalism, 56 AM. J. LEGAL HIST. 365, 368

(2016). Indeed, the right has sometimes been seen as a

protection for the States themselves from the same threat.

See Bertrall L. Ross II, Inequality, Anti-Republicanism,

and Our Unique Second Amendment, 135 HARV. L. REV.

F. 491, 497 (2022).

Because of its importance, since our nation’s founding,

the Second Amendment has sought to preserve the

“ancient right” to keep and bear arms. Heller, 554 U.S. at

599. And preservation is the amendment’s only goal: it

7

“has no other effect than to restrict the powers of the

national government.” United States v. Cruikshank, 92

U.S. 542, 553 (1875); see also McDonald, 561 U.S. at 750

(2010) (holding that “the Second Amendment right is fully

applicable to the States”). These restrictions are designed

to allow “individual self-defense,” which this Court has

explained is “the central component of the Second

Amendment.” McDonald, 561 U.S. at 767.

And there is “no doubt, on the basis of both text and

history, that the Second Amendment conferred an

individual right.” Heller, 554 U.S. at 595 (emphasis

added). In fact, based on the right’s origins, “it cannot

possibly be thought to tie … to militia or military service.”

Id. at 594 (citing and collecting authorities from the

Founding Era). This Court has emphasized the

individualized nature of the right, too, declaring that there

is no more “acute” need than the “defense of self, family,

and property.” McDonald, 561 U.S. at 767. Indeed, the

individual right to arms for self-defense is “deeply rooted

in this Nation’s history and tradition.” Id. at 767 (quoting

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). So

even in circuits where constitutional harm amounts to per

se irreparable harm only in “cases involving individual

rights” (rather than general constitutional violations),

infringements of the Second Amendment still fit the bill.

See, e.g., Aposhian v. Barr, 958 F.3d 969, 990 (10th Cir.

2020), abrogated on other grounds by Garland v. Cargill,

602 U.S. 406 (2024).

And the Second Amendment right does not apply only

when there is occasion to use arms. For one thing, an

individual could not exercise their right to armed selfdefense if they had no right to obtain and keep arms in the

first place—and it’s impossible to predict when the need

to use the firearm will arise. See McDougall v. Cnty. of

8

Ventura, 23 F.4th 1095, 1112 (9th Cir. 2022), vacated en

banc by 26 F.4th 1016 (9th Cir. 2022) (“It is in these

unexpected and sudden moments of attack that the

Second Amendments’ rights to keep and bear arms

becomes most acute.”). But more importantly, keeping

arms acts as a deterrent against threats to life, liberty, and

all other guarantees in the Constitution. In this way, the

Second Amendment serves “intangible and unquantifiable

interests.” Ezell v. City of Chicago, 651 F.3d 684, 699 (7th

Cir. 2011). So depriving an individual of their Second

Amendment right to armed self-defense causes

irreparable harm by preventing them from exercising a

natural right that is foundational to our very system of

governance.

Though the Third Circuit might think this temporary

deprivation is harmless—after all, it is not inevitable that

an individual would need to actively defend themself or

their family during a case’s pendency—the inability to

protect life and liberty comes at the direct expense of all

Constitutional ideals. “The right of the people to keep and

bear[] arms is the ultimate guarantor of all their other

constitutionally recognized rights.”

David Harmer,

Securing A Free State: Why The Second Amendment

Matters, 1998 BYU L. REV. 55, 57 (1998). So its loss

creates a compounding effect; in other words, the loss of

the Second Amendment invites the loss of other rights,

too—the First Amendment included. And the loss of

those rights can in turn create its own irreparable harm.

Ultimately, any attack on the individual right of selfdefense is an attack on all the other promises of the

Constitution. Without the Second Amendment, those

promises are illusory. Thus, “[i]nfringements of [the

Second Amendment right] cannot be compensated by

damages” and must be treated like the irreparable harms

9

they are. Ezell, 651 F.3d at 699; see also Baird v. Bonta,

81 F.4th 1036, 1047 (9th Cir. 2023) (ruling in a Second

Amendment context that “even a brief deprivation of a

constitutional right causes irreparable injury”); cf. Wrenn

v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017)

(holding that, where the plaintiffs established a “certain”

First Amendment violation, that was enough to “stop” and

enter injunctive relief). The Court should make that clear

with this case.

B. No Hierarchy Of Constitutional Rights

Exists.

In deciding that infringements on the Second

Amendment right are not irreparable, the Third Circuit

relied on long-since-abandoned principles that treated the

Second Amendment as a “constitutional orphan.”

Silvester v. Becerra, 583 U.S. 1139, 952 (2018) (Thomas, J.,

dissenting from denial of certiorari). In fact, the court not

only failed to recognize the Second Amendment right’s

import but even went so far as to explicitly relegate the

right to some apparent second tier of constitutional values.

According to the Third Circuit, only “First Amendment

harms are [presumptively] irreparable.” Pet.App.18a. It

“w[ould] not extend” this baseline protection to the

Second Amendment, no matter how certain the

infringement. Pet.App.19a.

1. The decision below ignores a critical fact: this

Court has long denounced the idea that some rights are

more valuable than others. It has explained that there is

“no principled basis on which to create a hierarchy of

constitutional values.” Valley Forge Christian Coll. v.

Ams. United for Separation of Church & State, Inc., 454

U.S. 464, 484 (1982). Instead, they are all vital rights

“withdraw[n] … from the vicissitudes of political

10

controversy.” W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 638 (1943). Thus, “[o]ne’s right to life, liberty,

and property, to free speech, a free press, freedom of

worship and assembly, and other fundamental rights”—

such as the Second Amendment right—are beyond the

reach of both “majorities and officials.” Id. Each of these

rights is an equal “legal principle[] to be applied”—not

ranked—“by the courts.” Id. (emphasis added). The

sanctity of each right laid out in the Constitution is the

reason that courts apply strict scrutiny to any government

action that falls “within a specific prohibition of the

Constitution, such as those of the first ten Amendments.”

United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4

(1938); see also Dep’t of State v. Muñoz, 144 S. Ct. 1812,

1821 (2024) (“When a fundamental right is at stake, the

Government can act only by narrowly tailored means that

serve a compelling state interest.”).

In the preliminary-injunction context, this Court

emphasized the value of constitutional rights by declaring

that their “loss … for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality op.); see also,

e.g., Steffel v. Thompson, 415 U.S. 452, 463 n.12 (1974)

(suggesting even before Elrod that “a showing of

irreparable injury might be made in a case where … an

individual demonstrates he will be required to forgo

constitutionally protected activity to avoid arrest”);

Petrol. Expl. v. Pub. Serv. Comm’n of Ky., 304 U.S. 209,

218-19 (1938) (“[T]he injury which flows from the threat of

enforcement of an allegedly unconstitutional, regulatory

state statute with penalties so heavy as to forbid the risk

of challenge in proceedings to enforce it, has been

generally recognized as irreparable and sufficient to

justify an injunction.”). And although Elrod dealt with the

First

Amendment,

there

is—as

discussed—

11

“no … hierarchy among[] constitutional rights.” Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617, 628

(1989). Elrod’s reasoning should apply here, too, and the

Third Circuit should have followed this Court’s lead and

given the Second Amendment the same respect due to all

constitutional rights.

2. Yet even if there were a constitutional ranking

system, there would be no good reason to put speech

rights in a higher category than the right to bear arms. To

the contrary, the two amendments “have often been

considered

close

cousins.”

Joseph

Blocher,

Categoricalism And Balancing In First And Second

Amendment Analysis, 84 N.Y.U. L. REV. 375, 379 (2009).

The two amendments each “codif[y] a ‘right of the

people’”—terminology used in the Constitution and Bill of

Rights only one other time in the Fourth Amendment.

Heller, 554 U.S. at 579. This “unambiguous[]” language

designates both the First and Second Amendments as

“individual rights, not collective rights, or rights that may

be exercised only through participation in some corporate

body.” Id. (cleaned up).

And both amendments “protect[] … intangible and

unquantifiable interests.” Ezell, 651 F.3d at 699. So in the

same way that the First Amendment protects speech and

its societal value, so too does the Second Amendment

safeguard the right to bear arms in self-defense and the

boons that such a right brings to a free society.

Additionally, the First and Second Amendments are both

the “product of an interest balancing by the people.”

Heller, 554 U.S. at 635 (cleaned up); see also id. at 582

(noting that the Second Amendment applies with just as

much force in modern settings as the First Amendment

does). As a result, both amendments already come with

the understanding that these rights are important enough

12

to outweigh the potential disadvantages of free speech or

keeping arms. Thus, any “debate” about the right’s value

is misplaced, and the Second Amendment—like the

First—must be treated like the fundamental right it is.

See id. at 634-35 (“Constitutional rights are enshrined

with the scope they were understood to have when the

people adopted them, whether or not future legislatures

or (yes) even future judges think that scope too broad.”).

All these similarities have led courts to “consistently

rely on the First Amendment for guidance in Second

Amendment cases.” Joseph E. Sitzmann, High-Value,

Low-Value, And No-Value Guns: Applying Free Speech

Law To The Second Amendment, 86 U. CHI. L. REV. 1981,

1993 (2019). Most recently, in New York State Rifle &

Pistol Association v. Bruen, the Court repeatedly (and

correctly), analogized the treatment of the Second

Amendment with the treatment of the First Amendment

and other constitutional rights. 597 U.S. 1, 24-25, 28, 70

(2022). The Third Circuit erred when it chose a different

path.

3. And to be clear, it’s not a controversial idea that

constitutional rights are treated equally in the

irreparable-harm context. It is the Third Circuit’s rule

that “constitutional harm is not necessarily … irreparable

harm” that’s the exception. Pet.App.17a (cleaned up).

The court even conceded that its “sister circuits have

presumed harm in various settings” involving

constitutional injury. Id. That’s putting it lightly.

As Petitioners note, at least two circuits, the Seventh

and Ninth, have explicitly found that Second Amendment

harms constitute irreparable injury. See Ezell, 651 F.3d

at 700; Baird, 81 F.4th at 1042. Another appears to have

presumed that the violation of the Second Amendment

right would constitute irreparable harm, but ultimately

13

concluded that the challengers had not shown that their

right would, in fact, be affected. Morehouse Enters., LLC

v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 78

F.4th 1011, 1017-18 (8th Cir. 2023).

But on top of that, most of the other circuits have at

least broadly said that constitutional harms are

irreparable. For example, the Second Circuit has said

that an “alleged violation of a constitutional

right … triggers a finding of irreparable harm.” Jolly v.

Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Likewise, the

Fourth Circuit declared that district courts have “no

discretion to deny relief by preliminary injunction” when

a plaintiff “clearly establishes by undisputed evidence that

he is being denied a constitutional right.” Henry v.

Greenville Airport Comm’n, 284 F.2d 631, 633 (4th Cir.

1960). And the Fifth Circuit made it clear that “the loss of

constitutional freedoms for even minimal periods of

time … unquestionably constitutes irreparable injury.”

BST Holdings, LLC v. OSHA, 17 F.4th 604, 618 (2021). In

the the Sixth Circuit, “[w]hen constitutional rights are

threatened or impaired, irreparable injury is presumed.”

Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.

2012). The Eighth Circuit agrees that “the denial of a

constitutional right is a cognizable injury and an

irreparable harm.” Ng v. Bd. of Regents of Univ. of

Minn., 64 F.4th 992, 998 (8th Cir. 2023). Much the same

from the Tenth Circuit: there, “[a]ny deprivation of any

constitutional right” is an “irreparable” injury. Free the

Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792,

806 (10th Cir. 2019). Finally, the D.C. Circuit has

explained that “a prospective violation of a constitutional

right constitutes irreparable injury for … purposes” of

“seeking equitable relief.” Gordon v. Holder, 721 F.3d

638, 653 (D.C. Cir. 2013). But see, e.g., Siegel v. LePore,

234 F.3d 1163, 1177 (11th Cir. 2000) (en banc) (rejecting

14

the argument “that a violation of constitutional rights

always constitutes irreparable harm”).

So although only two circuits have definitively held

Second Amendment harms irreparable, many circuits at

one time or another have suggested that all constitutional

harms meet that standard. Thus, this Court should

reverse the Third Circuit’s minority position that some

rights are more important than others.

II.

Individuals Across The Country Have Been

Deprived Of Their Constitutional Rights.

The Third Circuit’s mistake reflects a real problem,

too. The States and their citizens have suffered under the

mistaken presumption that Second Amendment violations

are somehow fixable after the fact. Constitutional

violations have been allowed to continue in pending cases

simply because lower courts believe there’s no harm in

doing so. But rights are important, and no compensation

can make up for their loss. This Court should correct the

mistaken presumption otherwise.

A. Take Second Amendment Foundation, Inc. v.

ATF, 702 F.Supp.3d 513 (N.D. Tex. 2023), as an example.

In that case, the district court denied plaintiffs a

preliminary injunction in part because it was “unclear

whether allegations of Second Amendment violations

alone are sufficient to establish irreparable harm.” Id. at

543. It wasn’t until a year later when—in a nowconsolidated case—another district judge granted

summary judgment that plaintiffs were able to exercise

their rights again. See Mock v. Garland, No. 4:23-CV00095-O, 2024 WL 2982056 (N.D. Tex. June 13, 2024),

appeal filed in Mock v. Garland, No. 24-10743 (5th Cir.

Aug. 15, 2024). And although the district court in Mock

did not rule on the constitutionality of the ATF’s rule, it

15

still found the rule was arbitrary and capricious under the

APA. Id. at *6. Thus, the initial reviewing court in Second

Amendment Foundation allowed the plaintiffs there to be

deprived of their constitutional rights by a rule that was

improper in the first place. That deprivation had serious,

real-world effects—the rule in question banned pistol

braces, an assistive device that many disabled and elderly

individuals require to make any use of their firearms.

And the district judge acknowledged this loss of rights by

a vulnerable population would not have happened if the

rights infringed upon were First Amendment rights. See

Second Amendment Foundation, 702 F.Supp.3d at 543

(“It is widely accepted that allegations of First

Amendment violations can sufficiently show likely

irreparable harm.”).

Such a disparity between

constitutional rights has no proper basis and should not be

allowed to continue.

B. And in Jones v. Becerra, 498 F.Supp.3d 1317 (S.D.

Cal. 2020), the court there similarly undervalued the

Second Amendment right when refusing to enjoin an age

restriction on the purchase of guns. In its order denying

a preliminary injunction, the court in Jones said that the

plaintiffs’ alleged “deprivation of [Second Amendment]

rights” was not “sufficient to demonstrate irreparable

harm.” Id. at 1331. The court reasoned that it didn’t

matter whether plaintiffs’ rights were being violated

because there was a “delay” before the preliminary

injunction was sought. Id. But a delay by a plaintiff does

not change the fact that rights are being deprived. And

though the court found there was no likelihood of success

on the merits, it was clear that “[e]ven if Plaintiffs [had]

show[n] a likelihood of success on the merits, they have

not demonstrated irreparable harm” by the “deprivation

of their rights.” Id. at 1330-31. Here again, the net effect

16

was that another vulnerable group—younger citizens—

were deprived of their Second Amendment rights.

The Ninth Circuit rebuked the Jones court’s

irreparable harm conclusions as “error.” Jones v. Bonta,

34 F.4th 704, 732 (9th Cir. 2022), vacated by Jones v.

Bonta, 47 F.4th 1124, 1125 (9th Cir. 2022) (vacating both

the Ninth Circuit’s opinion and the district court’s order

denying a preliminary injunction and remanding “for

further proceedings consistent with [Bruen]”). The

appellate court reminded the district court that

“exceptions” to a law that otherwise represents a Second

Amendment violation “do not alleviate” the law’s “burden

on Second Amendment rights.” Jones, 34 F.4th at 732.

Indeed, any law that does not allow a plaintiff “to exercise

their core Second Amendment right” is irreparable. Id.

This is true regardless of the harm’s duration, as “a harm

need not last indefinitely to be irreparable.” Id. And

although that opinion has been vacated after Bruen—

whose heightened protections seem likely to result in a

similar outcome to the first appeal—it demonstrates the

problem that district courts do not understand the

irreparable nature of Second Amendment harms.

C. Yet another example can be seen in Walters v.

Kemp, No. 1:20-CV-1624, 2020 WL 9073550 (N.D. Ga. May

5, 2020). There, the plaintiffs challenged a state probate

judge’s order issued during the start of the COVID

pandemic that entirely suspended the ability of individuals

to obtain a weapon license necessary to carry a handgun

on their person. Id. at *1. The district court denied

plaintiffs a preliminary injunction in part because “[e]ven

if [they] were likely to succeed on their Second

Amendment claim, neither the Eleventh Circuit nor the

Supreme Court has held that the Second Amendment’s

17

protections are of the sort that, when violated, trigger a

presumption of irreparable harm.” Id. at *11.

Thus, the court in Walters saw no issues with taking

away Second Amendment rights as long as there were

other “lawful options” to carry some types of weapons—

though not handguns on one’s person. Walters, 2020 WL

9073550, at *11. The court further suggested that the

Second Amendment’s protections can surely be taken

away unless a plaintiff makes a showing that the

government will never give them their rights back. Id.

(“There is nothing in the record to suggest that the

probate judges will not resume processing [weapon

license] applications” sometime later.).

And the

government did return plaintiffs’ Second Amendment

rights eventually, leading to the case being voluntarily

dismissed and thereby incapable of correction. See Not.

of Dismiss. of All Defs., Walters v. Kemp, No. 1:20-CV1624 (N.D. Ga. June 1, 2020), ECF No. 62. This Court

should take notice though and ensure that district courts

do not wantonly disregard Second Amendment rights

merely because the infringements are not absolute or are

of unclear duration.

D. In a similar case, the plaintiffs in Plastino v.

Koster, No. 4:12-cv-01316, 2013 WL 1769088 (E.D. Mo.

Apr. 24, 2013), were likewise denied a preliminary

injunction against a Second Amendment restriction

pertaining to concealed carry. The court there “[f]irst and

foremost” based its decision on the fact that the case did

not “implicate a First Amendment right.” Id. at *3.

Without such an implication, the court believed there was

no irreparable harm, as only First Amendment freedoms

are apparently worthy of such a finding. It refused “to

extend” those protections to the Second Amendment. Id.

And once again, the law changed during this lawsuit,

18

allowing plaintiffs to exercise their Second Amendment

rights and mooting the case—but only after the plaintiffs

were left without constitutionally granted protections for

months on end. See Mot. for Voluntary Dismiss., Plastino

v. Koster, No. 4:12-cv-01316 (E.D. Mo. Oct. 10, 2013), ECF

No. 51. This concerning pattern should not be allowed to

continue.

***

When an individual’s Second Amendment rights are

infringed upon, there is constitutional harm that cannot be

compensated for or undone. That is irreparable harm.

And it’s happening far too often to tolerate.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CALEB A. SECKMAN

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

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ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

ANDREW BAILEY

Attorney General

State of Missouri

TIM GRIFFIN

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

CHRIS CARR

Attorney General

State of Georgia

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL LABRADOR

Attorney General

State of Idaho

GENTNER DRUMMOND

Attorney General

State of Oklahoma

BRENNA BIRD

Attorney General

State of Iowa

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

MARTY JACKLEY

Attorney General

State of South Dakota

LIZ MURRILL

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN REYES

Attorney General

State of Utah

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BRIDGET HILL

Attorney General

State of Wyoming