Amicus Curiae Brief — Ivan Antonyuk, et al., Petitioners v. Steven G. James, In His Official Capacity as the Superintendent of the New York State Police, et al.

No. 24-795

In The

Supreme Court of the United States

————♦————

IVAN ANTONYUK, et al.,

Petitioners,

v.

STEVEN G. JAMES, in his official capacity as the

Superintendent of the New York State Police, et al.,

Respondents.

————♦————

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

————♦————

BRIEF OF THE NATIONAL RIFLE

ASSOCIATION OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

————♦————

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... iii

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

SUMMARY OF ARGUMENT ..................................... 2

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

I.

Lower courts are divided over whether 1791

or 1868 is the most relevant period for a

Second Amendment analysis. ............................... 3

A. Some courts have identified 1791 as the

most relevant period. ........................................ 3

B. Some courts consider evidence from 1868

to be equally relevant to, or more relevant

than, evidence from 1791. ................................. 5

C. Some courts focus on 1791 for federal laws

but 1868 for state laws, creating two

different Second Amendments. ........................ 7

II. Whether courts focus on 1791 or 1868 has led

to different results in similar cases. ..................... 9

III. This Court’s Second Amendment precedents

demonstrate that the original 1791

understanding of the right controls. .................. 10

A. Heller defined the Second Amendment

based on the Founding-Era understanding

of the right. ...................................................... 11

B. The City of New York dissent clarified that

state laws must be consistent with

Founding-Era regulations. ............................. 12

ii

C. Bruen emphasized that the significance of

historical evidence depends on its proximity

to the Founding. .............................................. 13

D. Rahimi confirmed the Court’s Founding-Era

focus in Second Amendment analyses. .......... 21

IV. This Court’s interpretations of other Bill of

Rights provisions confirm that the

Founding-Era understanding controls. .............. 22

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page

CASES

Antonyuk v. James,

120 F.4th 941 (2d Cir. 2024) .............. 2, 5, 10, 18, 19

Atkinson v. Garland,

70 F.4th 1018 (7th Cir. 2023) .................................. 8

Bevis v. City of Naperville, Ill.,

85 F.4th 1175 (7th Cir. 2023) .................................. 8

Crawford v. Washington,

541 U.S. 36 (2004) ............................................ 23, 24

Dimick v. Schiedt,

293 U.S. 474 (1935) ................................................ 14

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................... 11, 12, 13, 14, 15,

.................................................. 16, 17, 18, 19, 20, 21

Duncan v. Bonta,

695 F. Supp. 3d 1206 (S.D. Cal. 2023)..................... 9

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ................................................ 24

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) .................................... 8

Frey v. Nigrelli,

661 F. Supp. 3d 176 (S.D.N.Y. 2023) ....................... 6

Friedman v. City of Highland Park, Ill.,

784 F.3d 406 (7th Cir. 2015) .................................. 12

Funk v. United States,

290 U.S. 371 (1933) ................................................ 14

iv

Gamble v. United States,

587 U.S. 678 (2019) ................................................ 18

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .............................. 16

Hurtado v. California,

110 U.S. 516 (1884) ................................................ 14

Lara v. Comm’r Pennsylvania State Police,

91 F.4th 122 (3d Cir. 2024) ...................................... 7

Lara v. Comm’r Pennsylvania State Police,

125 F.4th 428 (3d Cir. 2025) ............................ 3, 4, 9

Malloy v. Hogan,

378 U.S. 1 (1964) .................................................... 23

Maryland Shall Issue, Inc. v. Montgomery Cnty.,

Maryland,

680 F. Supp. 3d 567 (D. Md. 2023) .......................... 6

May v. Bonta,

709 F. Supp. 3d 940 (C.D. Cal. 2023) ...................... 9

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................... 22, 23, 24

National Rifle Ass’n v. Bondi,

61 F.4th 1317 (11th Cir. 2023) .......................... 6, 10

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

597 U.S. 1 (2022) ............... 3, 4, 5, 7, 8, 9, 13, 14, 15,

...................................... 16, 17, 18, 19, 20, 21, 22, 24

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

New York,

590 U.S. 336 (2020) .......................................... 12, 13

Ocean State Tactical, LLC v. Rhode Island,

95 F.4th 38 (1st Cir. 2024) ....................................... 5

v

Paris v. Lara,

145 S. Ct. 369 (2024) ................................................ 7

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................ 22, 23

Reese v. Bureau of Alcohol, Tobacco, Firearms, &

Explosives,

127 F.4th 583 (5th Cir. 2025) .............................. 4, 9

Sprint Communications Co. v. APCC Services, Inc.,

554 U.S. 269 (2008) .......................................... 14, 17

Timbs v. Indiana,

586 U.S. 146 (2019) .......................................... 22, 23

United States v. Ayala,

711 F. Supp. 3d 1333 (M.D. Fla. 2024) .................... 8

United States v. Miller,

307 U.S. 174 (1939) .......................................... 11, 12

United States v. Perez-Garcia,

96 F.4th 1166 (9th Cir. 2024) .................................. 7

United States v. Rahimi,

602 U.S. 680 (2024) ........................................ 3, 5, 21

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) .................................. 5

Virginia v. Moore,

553 U.S. 164 (2008) ................................................ 24

We the Patriots, Inc. v. Grisham,

697 F. Supp. 3d 1222 (D.N.M. 2023) ....................... 6

Wolford v. Lopez,

116 F.4th 959 (9th Cir. 2024) .............................. 7, 9

Worth v. Jacobson,

108 F.4th 677 (8th Cir. 2024) ............................ 4, 10

vi

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. II ................ 2, 3, 5, 6, 7, 8, 10, 13,

............................................ 15, 16, 17, 18, 19, 20, 24

U.S. CONST. amend. IV .............................................. 24

U.S. CONST. amend. V ............................................... 23

U.S. CONST. amend. VI ........................................ 22, 23

U.S. CONST. amend. VIII ........................................... 22

U.S. CONST. amend. XIV ......... 3, 6, 7, 8, 17, 19, 22, 23

STATUTES AND REGULATIONS

18 U.S.C. § 922(g)(8) .................................................. 21

1

INTEREST OF AMICUS CURIAE1

The National Rifle Association of America (NRA)

is America’s oldest civil rights organization and

foremost defender of Second Amendment rights. It was

founded in 1871 by Union generals who, based on their

Civil War experiences, sought to promote firearms

marksmanship and expertise amongst the citizenry.

Today, the NRA is America’s leading provider of

firearms marksmanship and safety training for both

civilians and law enforcement. The NRA has

approximately four million members, and its programs

reach millions more.

Many NRA members wish to carry firearms for

lawful purposes in the public places that New York

now deems gun-free zones. Additionally, the NRA has

a similar case challenging New York’s “Concealed

Carry Improvement Act” currently pending in the

Northern District of New York. The outcome of the

instant case may prove dispositive for many claims in

that case.

————♦————

1 All parties received timely notice of Amicus’s intent to file

this brief. No counsel for any party authored this brief in any part.

Only Amicus funded its preparation and submission.

2

SUMMARY OF ARGUMENT

The Second Circuit held that “1868 and 1791 are

both focal points” of a Second Amendment analysis

and that Reconstruction-Era evidence is “at least as

relevant as evidence from the Founding Era regarding

the Second Amendment itself.” Antonyuk v. James,

120 F.4th 941, 972, 988 n.36 (2d Cir. 2024). This

decision adds to a growing circuit split over which time

period controls—a split that results in disparate

outcomes in otherwise similar cases.

The Second Circuit’s holding—like similar

holdings by other courts—is contrary to this Court’s

precedents. This Court has strongly indicated that the

original 1791 understanding of the Second

Amendment controls and that the significance of

historical evidence depends on its proximity to the

Founding. Even modern regulations that would have

been unimaginable at the Founding require reasoning

by

analogy

to

the

Founding

generation’s

understanding of the right.

Three recent Supreme Court cases have

considered Reconstruction-Era evidence “secondary”

to Founding-Era evidence in Second Amendment

analyses. These decisions align with this Court’s

jurisprudence regarding other provisions of the Bill of

Rights, which are similarly pegged to their original

Founding-Era scope and understanding.

Nevertheless, lower courts continue to reach

divergent conclusions on whether the understanding

of the right from the Founding Era or Reconstruction

Era controls. This Court should grant the Petition for

Writ of Certiorari to clarify that the Founding Era is

3

the most relevant period in Second Amendment

analyses.

————♦————

ARGUMENT

I.

Lower courts are divided over whether 1791

or 1868 is the most relevant period for a

Second Amendment analysis.

This Court has left unresolved the question of

“whether courts should primarily rely on the

prevailing understanding of” the Second Amendment

from when it was ratified in 1791 or “when the

Fourteenth Amendment was ratified in 1868.” New

York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1, 37 (2022); see also United States v. Rahimi, 602 U.S.

680, 692 n.1 (2024). Lower courts have split over the

question, taking several conflicting approaches.

A. Some courts have identified 1791 as the

most relevant period.

Some courts have determined that the prevailing

understanding of the Second Amendment in 1791

controls.

The Third Circuit recently held that “the

constitutional right to keep and bear arms should be

understood according to its public meaning in 1791.”

Lara v. Comm’r Pennsylvania State Police, 125 F.4th

428, 441 (3d Cir. 2025). The Third Circuit recognized

that this Court “gave a strong hint” that the 1791

public understanding controls “when it observed that

there has been a general assumption ‘that the scope of

the protection applicable to the Federal Government

and States [under the Bill of Rights] is pegged to the

4

public understanding of the right when the Bill of

Rights was adopted in 1791.’” Id. at 440 (quoting

Bruen, 597 U.S. at 37) (brackets in Lara). The Third

Circuit also noted that this Court “interpreted the

bounds of the Sixth, Fourth, and First Amendments …

according to their public meaning at the founding” and

found no reason “for defining some rights according to

their public meaning in 1791 and others according to

their public meaning in 1868.” Id. at 440.

The Fifth Circuit also concluded that “[t]he scope

of the protection applicable to the Federal Government

and States is pegged to the public understanding of the

right when the Bill of Rights was adopted in 1791.”

Reese v. Bureau of Alcohol, Tobacco, Firearms, &

Explosives, 127 F.4th 583, 600 (5th Cir. 2025) (quoting

Bruen, 597 U.S. at 37). The court deemed 19th-century

sources relevant only “to confirm and reinforce earlier

historical evidence contemporaneous with the

Constitution’s ratification.” Id. (citing Bruen, 597 U.S.

at 37).

The Eighth Circuit similarly focused on the 1791

understanding, recognizing that “Bruen strongly

suggests that we should prioritize Founding-era

history.” Worth v. Jacobson, 108 F.4th 677, 692 (8th

Cir. 2024). This made sense, the court reasoned,

because

“[o]therwise,

the

‘individual

rights

enumerated in the Bill of Rights and made applicable

against the States’” might have different scopes

against different governments. Id. at 692–93 (quoting

Bruen, 597 U.S. at 37).

The Sixth Circuit explained that under this

Court’s precedents, “courts must study how and why

the founding generation regulated firearm possession

5

and determine whether the application of a modern

regulation ‘fits neatly within’ those principles.” United

States v. Williams, 113 F.4th 637, 648 (6th Cir. 2024)

(quoting Rahimi, 602 U.S. at 698).

The First Circuit acknowledged that “[t]he

Supreme Court has indeed indicated that ‘foundingera historical precedent’ is of primary importance for

identifying a tradition of comparable regulation,”

Ocean State Tactical, LLC v. Rhode Island, 95 F.4th

38, 51 (1st Cir. 2024) (quoting Bruen, 597 U.S. at 27),

but added that late-19th-century and 20th-century

evidence “may have probative value if it does not

‘contradict earlier evidence,’” id. (quoting Bruen, 597

U.S. at 66 n.28) (brackets omitted).

B. Some courts consider evidence from 1868

to be equally relevant to, or more relevant

than, evidence from 1791.

Some courts have determined that the prevailing

understanding of the Second Amendment in 1868

controls, or that evidence from that period is at least as

significant as evidence from the Founding.

The Second Circuit in this case asserted that

“evidence from the Reconstruction Era regarding the

scope of the right to bear arms incorporated by the

Fourteenth Amendment is at least as relevant as

evidence from the Founding Era regarding the Second

Amendment itself.” Antonyuk v. James, 120 F.4th 941,

988 n.36 (2d Cir. 2024).

Similarly, the Eleventh Circuit, in a case now

being reheard en banc, held that “the Reconstruction

Era understanding of the right to bear arms—that is,

the understanding that prevailed when the States

6

adopted the Fourteenth Amendment—is what

matters.” National Rifle Ass’n v. Bondi, 61 F.4th 1317,

1322 (11th Cir.), reh’g en banc granted, opinion

vacated, 72 F.4th 1346 (11th Cir. 2023).

Maryland’s district court “agrees with the

Eleventh Circuit’s reasoning” and “conclud[ed] that

historical sources from the time period of the

ratification of the Fourteenth Amendment are equally

if not more probative of the scope of the Second

Amendment’s right to bear arms as applied to the

states by the Fourteenth Amendment.” Maryland

Shall Issue, Inc. v. Montgomery Cnty., Maryland, 680

F. Supp. 3d 567, 582, 583 (D. Md. 2023).

New Mexico’s district court also “agrees with the

Eleventh Circuit” and prioritizes Reconstruction-Era

evidence. We the Patriots, Inc. v. Grisham, 697 F. Supp.

3d 1222, 1234 (D.N.M. 2023); see also Frey v. Nigrelli,

661 F. Supp. 3d 176, 188 (S.D.N.Y. 2023) (deeming

historical sources from both “around when the Second

Amendment was adopted (1791) and when the

Fourteenth Amendment was adopted (1868) a[s]

particularly instructive”).

The Third Circuit, however, took issue with the

Eleventh Circuit’s approach:

Bondi overlooks that two generations of

Americans

ratified

the

Second

and

Fourteenth Amendments. If we are to

construe the rights embodied in those

amendments coextensively, as the Supreme

Court has instructed we must, and if there is

daylight between how each generation

understood a particular right, we must pick

7

between the two timeframes, and … the

better choice is the founding era.

Lara v. Comm’r Pennsylvania State Police, 91 F.4th

122, 134 n.14 (3d Cir.), cert. granted, judgment vacated

sub nom. Paris v. Lara, 145 S. Ct. 369 (2024).

C. Some courts focus on 1791 for federal laws

but 1868 for state laws, creating two

different Second Amendments.

This Court has “made clear that individual rights

enumerated in the Bill of Rights and made applicable

against the States through the Fourteenth

Amendment have the same scope as against the

Federal Government.” Bruen, 597 U.S. at 37.

Nevertheless, some courts have determined that 1791

is the most relevant period for federal laws while 1868

is the most relevant period for state laws. This

approach effectively creates two different Second

Amendments, depending on whether the federal

government or a state or local government enacts a

regulation.

When considering federal laws, the Ninth Circuit

focuses on Founding-Era evidence. See, e.g., United

States v. Perez-Garcia, 96 F.4th 1166, 1184 (9th Cir.

2024). But “at least when considering the ‘sensitive

places’ doctrine” under state law, the court “look[s] to

the understanding of the right to bear arms both at the

time of the ratification of the Second Amendment in

1791 and at the time of the ratification of the

Fourteenth Amendment in 1868.” Wolford v. Lopez,

116 F.4th 959, 980 (9th Cir. 2024).

Under the Seventh Circuit’s pre-Bruen doctrine,

the court determined that the 1791 understanding

8

controls in challenges to federal laws but reasoned

that “when state- or local-government action is

challenged, the focus of the original-meaning inquiry

is carried forward in time; the Second Amendment’s

scope as a limitation on the States depends on how the

right was understood when the Fourteenth

Amendment was ratified.” Ezell v. City of Chicago, 651

F.3d 684, 702 (7th Cir. 2011); see also id. at 705. It is

unclear whether Bruen altered the court’s approach.

Dissenting from a decision to remand a case in light of

Bruen, Judge Wood indicated that the court’s preBruen approach remained intact: “Bruen … adds that

the most persuasive analogous regulations are those

enacted or in place at the time the Second Amendment

was ratified (1791) or those that date from the

adoption of the Fourteenth Amendment (1868)

(presumably if the regulation at issue comes from a

state entity rather than the federal government).”

Atkinson v. Garland, 70 F.4th 1018, 1029 (7th Cir.

2023) (Wood, J., dissenting). Drafting the majority

opinion in Bevis v. City of Naperville, Ill., Judge Wood

noted “the Supreme Court’s insistence that the

relevant time to consult is 1791, or maybe 1868.” 85

F.4th 1175, 1194 (7th Cir. 2023); see also id. at 1199.

A Florida district court adopted the same

approach, explaining that “the pertinent time period

for a Second Amendment (compared to a Fourteenth

Amendment) challenge is the founding—not 1868.”

United States v. Ayala, 711 F. Supp. 3d 1333, 1342 n.4

(M.D. Fla. 2024); see also id. at 1340 (“To decide the

constitutionality of this federal statute, then, I must

ascertain the scope of the Second Amendment right

against the federal government in 1791.”).

9

II.

Whether courts focus on 1791 or 1868 has led

to different results in similar cases.

Courts considering similar issues have reached

different conclusions depending on whether the court

considers 1791 or 1868 to be the most relevant

historical period.

Despite this Court’s assurance that “the public

understanding of the right to keep and bear arms in

both 1791 and 1868 was, for all relevant purposes, the

same with respect to public carry,” Bruen, 597 U.S. at

38, courts focusing on 1868 have reached different

holdings in carry challenges than courts focusing on

1791.

For example, a California district court,

concluding that “[t]he most significant historical

evidence comes from 1791,” enjoined much of

California’s Bruen-response law prohibiting carry in

26 categories of public locations. May v. Bonta, 709 F.

Supp. 3d 940, 952 (C.D. Cal. 2023) (quoting Duncan v.

Bonta, 695 F. Supp. 3d 1206, 1237 (S.D. Cal. 2023)).

But the Ninth Circuit, providing 1868 evidence equal

weight, upheld nearly all the law. Wolford v. Lopez,

116 F.4th 959, 980 (9th Cir. 2024).

A similar divide has developed in cases involving

the rights of adults under 21. The Third, Fifth, and

Eighth Circuits held restrictions on 18-to-20-year-olds

unconstitutional when focusing on Founding-Era laws.

Lara, 125 F.4th at 444 (“the Commissioner cannot

point to a single founding-era statute imposing

restrictions on the freedom of 18-to-20-year-olds to

carry guns”); Reese, 127 F.4th at 600 (“The federal

10

government has presented scant evidence that

eighteen-to-twenty-year-olds’ firearm rights during

the founding-era were restricted in a similar manner

to the contemporary federal handgun purchase ban”);

Worth, 108 F.4th at 696 (“Minnesota’s proffered

founding-era analogues do not meet its burden to

demonstrate that the Nation’s historical tradition of

firearm regulation supports the Carry Ban” for adults

under 21). By contrast, the Eleventh Circuit upheld a

statute prohibiting 18-to-20-year-olds from purchasing

firearms while emphasizing that “historical sources

from the Reconstruction Era are more probative of the

Second Amendment’s scope than those from the

Founding Era.” Bondi, 61 F.4th at 1322.

In sum, lower courts are not only split over

whether 1791 or 1868 is the relevant period for a

historical analysis, but the split is leading to

conflicting holdings in similar cases.

III. This Court’s Second Amendment precedents

demonstrate that the original 1791

understanding of the right controls.

As discussed supra, the Second Circuit asserted

that Reconstruction-Era evidence is “at least as

relevant” as Founding-Era evidence in determining

the scope of the Second Amendment. Antonyuk, 120

F.4th at 988 n.36. But this Court has repeatedly

demonstrated that the original 1791 understanding of

the Second Amendment controls.

11

A. Heller defined the Second Amendment

based

on

the

Founding-Era

understanding of the right.

District of Columbia v. Heller began with a

“textual analysis” of the Second Amendment, 554 U.S.

570, 578 (2008), in which the Court defined every word

of the plain text based on the Founding-Era

understanding, see id. at 581 (determining “[t]he 18thcentury meaning” of “Arms”); id. at 584 (defining “bear

arms” based on “our review of founding-era sources”);

id. at 582 (consulting “written documents of the

founding period” to define “keep arms”); id. at 579

(considering how “the people” was used in the

“unamended Constitution and the Bill of Rights”); id.

at 595 (adopting the definition of “militia” from United

States v. Miller, 307 U.S. 174, 179 (1939), because it

“comports with founding-era sources”); id. at 597

(“security of a free State” in “18th-century political

discourse” meant “‘free country’ or free polity”); see

also id. at 586 (rejecting the argument that “bear

arms” connotes only the carrying of arms during

militia service because “no source … indicates that it

carried that meaning at the time of the founding”).

The Court then confirmed its interpretation of the

plain text by consulting “analogous arms-bearing

rights in state constitutions that preceded and

immediately followed adoption of the Second

Amendment.” Id. at 600–01.

Looking to history, the Court made clear that it

was “adopti[ng] … the original understanding of the

Second Amendment.” Id. at 625 (emphasis added).

Heller then held that common arms are protected by

the Second Amendment because the “traditional

12

militia” of the colonial and Founding eras “was formed

from a pool of men bringing arms ‘in common use at

the time.’” Id. at 624 (quoting Miller, 307 U.S. at 179).

Because handguns are common, the handgun ban at

issue was ruled unconstitutional. Id. at 629. Thus, as

the dissenting Justices acknowledged, the majority

indicated that the constitutionality of modern laws

depends on whether “similar restrictions existed in the

late-18th century.” Id. at 721 (Breyer, J., dissenting);

see also Friedman v. City of Highland Park, Ill., 784

F.3d 406, 417 (7th Cir. 2015) (Manion, J., dissenting)

(“Heller examined the right to keep arms as it was

understood in 1791 when the Second Amendment was

ratified.”).

The Court addressed evidence surrounding the

Fourteenth Amendment’s ratification for the first time

41 pages into the Heller opinion. But the Court

immediately cautioned that “[s]ince those discussions

took place 75 years after the ratification of the Second

Amendment, they do not provide as much insight into

its original meaning as earlier sources.” Id. at 614.

B. The City of New York dissent clarified that

state laws must be consistent with

Founding-Era regulations.

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

of New York, 590 U.S. 336 (2020), New York City

mooted a challenge to its rule prohibiting the transport

of firearms to a second home or shooting range outside

of the City by changing the law before this Court

issued its ruling. Nevertheless, the case further

demonstrates that the Founding Era is the relevant

timeframe for Second Amendment analyses, including

in challenges to state and local laws.

13

Justice Alito, joined by Justices Gorsuch and

Thomas, dissented and addressed the merits of the

case. Justice Kavanaugh, while joining the majority,

expressed in a concurrence that he “agree[d] with

Justice ALITO’s general analysis of Heller.” Id. at 340

(Kavanaugh, J., concurring). The dissent explained

that the Court “based [the Heller] decision on the scope

of the right to keep and bear arms as it was understood

at the time of the adoption of the Second Amendment.”

Id. at 364 (quoting Heller, 554 U.S. at 577–605, 628–

29) (emphasis added). The dissent then concluded that

New York City failed to justify its law because “[i]t

points to no evidence of laws in force around the time

of the adoption of the Second Amendment that

prevented gun owners from practicing outside city

limits.” Id. at 365 (emphasis added). Indeed, “neither

the City, the courts below, nor any of the many amici

supporting the City have shown that municipalities

during the founding era prevented gun owners from

taking their guns outside city limits for practice.” Id.

at 366 (emphasis added).

C. Bruen emphasized that the significance of

historical evidence depends on its

proximity to the Founding.

The Bruen Court considered evidence from five

historical periods and emphasized that the

significance of evidence from each period depended on

its proximity to the Founding. 597 U.S. at 34. Bruen

“categorize[d] these periods as follows: (1) medieval to

early modern England; (2) the American Colonies and

the early Republic; (3) antebellum America; (4)

Reconstruction; and (5) the late-19th and early-20th

centuries.” Id. The Court’s evaluation of evidence from

14

each period demonstrates the centrality of the

Founding Era.

(1) Medieval to early modern England.

Bruen deemed it acceptable to consider “English

practices that ‘prevailed up to the “period immediately

before and after the framing of the Constitution,”’” id.

(quoting Sprint Communications Co. v. APCC

Services, Inc., 554 U.S. 269, 311 (2008) (Roberts, C.J.,

dissenting)), but not to “rely on an ‘ancient’ practice

that had become ‘obsolete in England at the time of the

adoption of the Constitution’ and never ‘was acted

upon or accepted in the colonies,’” id. at 35 (quoting

Dimick v. Schiedt, 293 U.S. 474, 477 (1935)). Similarly,

“English common-law practices and understandings”

matter only if they reflect the understanding “at the

time of the separation of the American Colonies.” Id.

(quoting Hurtado v. California, 110 U.S. 516, 529

(1884)).

Thus, “in interpreting our own Constitution, ‘it [is]

better not to go too far back into antiquity for the best

securities of our liberties,’ unless evidence shows that

medieval law survived to become our Founders’ law.”

Id. (quoting Funk v. United States, 290 U.S. 371, 382

(1933)) (brackets in Heller).

When it came to the “initially limited” English

arms right, therefore, what mattered most was that

“‘by the time of the founding,’” it was “‘understood to

be an individual right protecting against both public

and private violence.’” Id. at 44–45 (quoting Heller,

554 U.S. at 594); see also Heller, 554 U.S. at 593 (“By

the time of the founding, the right to have arms had

become fundamental for English subjects.”). Likewise,

15

when it came to the Statute of Northampton, what

mattered most was that “it was no obstacle to public

carry for self-defense in the decades leading to the

founding.” Bruen, 597 U.S. at 45.

Having repeatedly confirmed that the analytical

baseline for English history is what the Founders

thought of it, Bruen’s analysis of English history

concluded with the understanding of English law at

“the time of the founding.” Id.

(2) The American Colonies and the early Republic.

Reaffirming the centrality of 1791, Bruen

consulted Heller’s plain text analysis—which defined

the Second Amendment based on Founding-Era

understandings—to determine that the plaintiffs were

part of “the people,” 597 U.S. at 31–32 (citing Heller,

554 U.S. at 580), that the handguns they desired to

carry were protected arms, id. at 32 (citing Heller, 554

U.S. at 627), and that the Second Amendment protects

“carry[ing] weapons in case of confrontation,” id.

(citing Heller, 554 U.S. at 592). Bruen then mandated

that courts begin every Second Amendment analysis

by consulting Heller’s 1791-focused textual analysis.

Id. at 24 (setting forth “the standard for applying the

Second Amendment,” which begins by determining

whether “the Second Amendment’s plain text covers

an individual’s conduct”).

Hence, the Bruen Court emphasized that

“‘[c]onstitutional rights are enshrined with the scope

they were understood to have when the people adopted

them,’” id. at 34 (quoting Heller, 554 U.S. at 634–35)

(emphasis Bruen’s), and that the Second Amendment’s

“meaning is fixed according to the understandings of

16

those who ratified it,” id. at 28; see also id. (“the Second

Amendment’s definition of ‘arms’ is fixed according to

its historical understanding”).

Accordingly, when it comes to colonial restrictions,

their relevance depends on their proximity to the

Founding. A law from “roughly a century before the

founding sheds little light on how to properly interpret

the Second Amendment.” Id. at 49. Likewise, whether

pocket pistols were uncommon in colonial America did

not matter since they gained commonality “by the

founding.” Id. at 48 n.13.

Not one law, circumstance, or source from the

Founding Era was disparaged in either Heller or

Bruen based on the date it was produced—unlike those

from every other period.

(3) Antebellum America.

The Bruen Court reiterated Heller’s assertion that

“evidence of ‘how the Second Amendment was

interpreted from immediately after its ratification

through the end of the 19th century’ represented a

‘critical tool of constitutional interpretation.’” 597 U.S.

at 35 (quoting Heller, 554 U.S. at 605). But in the same

breath, the Bruen Court warned that “[w]e must also

guard against giving postenactment history more

weight than it can rightly bear.” Id. Specifically, “‘postratification adoption or acceptance of laws that are

inconsistent with the original meaning of the

constitutional text obviously cannot overcome or alter

that text.’” Id. at 36 (quoting Heller v. District of

Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011)

(“Heller II”) (Kavanaugh, J., dissenting)) (emphasis in

Heller II).

17

Significantly, the Bruen Court dismissed an 1860

New Mexico law in part because it was enacted “nearly

70 years after the ratification of the Bill of Rights.” 597

U.S. at 55 n.22. Due to its distance from 1791, this

Court determined that “[i]ts value in discerning the

original meaning of the Second Amendment is

insubstantial.” Id. How it impacted the understanding

of the right when the Fourteenth Amendment was

ratified eight years later was irrelevant—the law’s

distance from the Founding determined its

significance.

(4) Reconstruction.

Bruen expressly called Reconstruction-Era

evidence “secondary” and useful as “mere

confirmation” of Founding-Era evidence:

As we recognized in Heller itself, because

post-Civil War discussions of the right to keep

and bear arms “took place 75 years after the

ratification of the Second Amendment, they

do not provide as much insight into its

original meaning as earlier sources.” 554 U. S.

at 614, 128 S.Ct. 2783; cf. Sprint

Communications Co., 554 U.S. at 312, 128

S.Ct. 2531 (ROBERTS, C. J., dissenting)

(“The belated innovations of the mid- to late19th-century courts come too late to provide

insight into the meaning of the Constitution

in 1787”). And we made clear in Gamble that

Heller’s interest in mid- to late-19th-century

commentary

was

secondary.

Heller

considered this evidence “only after surveying

what it regarded as a wealth of authority for

its reading—including the text of the Second

18

Amendment and state constitutions.” Gamble

[v. United States, 587 U.S. 678, 702 (2019)]

(majority opinion). In other words, this 19thcentury evidence was “treated as mere

confirmation of what the Court thought had

already been established.” Ibid.

Bruen, 597 U.S. 36–37 (brackets omitted).

Bruen, Gamble, and Heller all considered

Reconstruction-Era evidence “secondary” to FoundingEra evidence. But in the decision below, the Second

Circuit held that “evidence from the Reconstruction

Era … is at least as relevant as evidence from the

Founding Era” in determining the scope of the Second

Amendment. Antonyuk, 120 F.4th at 988 n.36

(emphasis added). That holding contradicts these

recent Supreme Court cases.

(5) The late-19th and early-20th centuries.

Bruen explained that “late-19th-century evidence

cannot provide much insight into the meaning of the

Second Amendment when it contradicts earlier

evidence.” Id. at 66. It is less insightful than earlier

evidence due to its “temporal distance from the

founding.” Id. In other words, the closer to the

Founding the greater the significance.

The Bruen Court thus refused to “stake our

interpretation on a handful of temporary territorial

laws that were enacted nearly a century after the

Second Amendment’s adoption.” Id. at 67–68. And the

Court declined to consider 20th-century evidence for

the same reason: “[a]s with their late-19th-century

evidence, the 20th-century evidence presented by

respondents and their amici does not provide insight

19

into the meaning of the Second Amendment when it

contradicts earlier evidence.” Id. at 66 n.28.

Bruen repeated Heller’s statement that “‘the

public understanding of a legal text in the period after

its enactment or ratification’ was ‘a critical tool of

constitutional interpretation.’” Id. at 20 (quoting

Heller, 554 U.S. at 605) (emphasis omitted). Given this

Court’s repeated rejections of late-19th-century

evidence, this statement is irreconcilable with the

Second Circuit’s holding that Reconstruction-Era

evidence is “at least as relevant” as evidence from

closer to the Second Amendment’s ratification.

Antonyuk, 120 F.4th at 988 n.36.

Other factors that the Bruen Court identified as

relevant considerations in Second Amendment

analyses revolve around the Founding Era.

First, the Bruen Court explained that “when a

challenged regulation addresses a general societal

problem that has persisted since the 18th century, the

lack of a distinctly similar historical regulation

addressing that problem is relevant evidence that the

challenged regulation is inconsistent with the Second

Amendment.” 597 U.S. at 26. By requiring that the

general societal problem be in existence “since the

18th century” for this evidence to be relevant, this

Court ensured that the problem be known to the

Founders. A problem known to the ratifiers of the

Fourteenth Amendment but unknown to the Founders

is insignificant—which would not be the case if “1868

and 1791 [were] both focal points” of Second

Amendment inquiries and thus entitled to equal

weight. Antonyuk, 120 F.4th at 972.

20

As Bruen noted,

Heller itself exemplifies this kind of

straightforward historical inquiry…. The

District in Heller addressed a perceived

societal problem—firearm violence in densely

populated communities—and it employed a

regulation—a flat ban on the possession of

handguns in the home—that the Founders

themselves could have adopted to confront

that problem. Accordingly, after considering

“founding-era historical precedent,” including

“various restrictive laws in the colonial

period,” and finding that none was analogous

to the District’s ban, Heller concluded that the

handgun ban was unconstitutional. Id., at

631, 128 S.Ct. 2783; see also id., at 634, 128

S.Ct. 2783 (describing the claim that “there

were somewhat similar restrictions in the

founding period” a “false proposition”).

597 U.S. at 27 (emphasis added). Likewise, in Bruen,

this Court “consider[ed] whether ‘historical precedent’

from before, during, and even after the founding

evinces a comparable tradition of regulation” as the

carry restriction at issue. Id. (quoting Heller, 554 U.S.

at 631) (emphasis added). After “find[ing] no such

tradition,” the Court held the law unconstitutional. Id.

Second, as for “modern regulations that were

unimaginable at the founding,” the “historical inquiry

that courts must conduct will often involve reasoning

by analogy.” Id. at 28 (emphasis added). This

reasoning by analogy, like the rest of the test

articulated in Bruen, must focus on the Founding Era.

Because “the Second Amendment is the ‘product of an

21

interest balancing by the people’” of the Founding

generation, id. at 29 n.7 (quoting Heller, 554 U.S. at

635) (emphasis omitted), “[a]nalogical reasoning

requires judges to apply faithfully the balance struck

by the founding generation to modern circumstances,”

id. (emphasis added).

D. Rahimi confirmed the Court’s FoundingEra focus in Second Amendment analyses.

In Rahimi, this Court clarified “the methodology

of our recent Second Amendment cases” by explaining

that “[t]hese precedents were not meant to suggest a

law trapped in amber,” 602 U.S. at 691, but instead

require “‘applying faithfully the balance struck by the

founding generation to modern circumstances,’” id. at

692 (quoting Bruen, 597 U.S. at 29) (brackets omitted).

Rahimi upheld 18 U.S.C. § 922(g)(8) because

Section 922(g)(8)(C)(i) “is ‘relevantly similar’ to those

founding era regimes [of surety and going armed laws]

in both why and how it burdens the Second

Amendment right.” Id. at 698. The Court did not

consider whether Section 922(g)(8) still accorded with

the understanding of the right at the time of the

Fourteenth Amendment’s ratification. That it was

analogous to Founding-Era laws is all that mattered.

Although this Court has thus far found it

“unnecessary” to “resolv[e] the dispute” over “whether

courts should primarily rely on” evidence from 1791 or

1868 when applying its Second Amendment test, id. at

692 n.1, this Court’s precedents clearly demonstrate

that 1791 is the focus. Certiorari should be granted to

resolve this dispute explicitly.

22

IV. This Court’s interpretations of other Bill of

Rights provisions confirm that the

Founding-Era understanding controls.

This Court has “made clear that individual rights

enumerated in the Bill of Rights and made applicable

against the States through the Fourteenth

Amendment have the same scope as against the

Federal Government.” Bruen, 597 U.S. at 37. And this

Court has “generally assumed that the scope of the

protection applicable to the Federal Government and

States is pegged to the public understanding of the

right when the Bill of Rights was adopted in 1791.” Id.

(emphasis added).

In Ramos v. Louisiana, this Court held that the

Sixth Amendment’s jury unanimity requirement

“applies to state and federal criminal trials equally”

because as “[t]his Court has long explained, …

incorporated provisions of the Bill of Rights bear the

same content when asserted against States as they do

when asserted against the federal government.” 590

U.S. 83, 93 (2020).

Similarly, in Timbs v. Indiana, this Court held

that the Eighth Amendment’s Excessive Fines Clause

is equally applicable to both states and the federal

government, because “[i]ncorporated Bill of Rights

guarantees are ‘enforced against the States under the

Fourteenth Amendment according to the same

standards that protect those personal rights against

federal encroachment.’” 586 U.S. 146, 150 (2019)

(quoting McDonald v. City of Chicago, 561 U.S. 742,

765 (2010)).

23

Indeed, this Court “has rejected the notion that the

Fourteenth Amendment applies to the States only a

watered-down, subjective version of the individual

guarantees of the Bill of Rights.” Malloy v. Hogan, 378

U.S.

1,

10–11

(1964)

(quotation

omitted)

(incorporating the Fifth Amendment’s protection

against self-incrimination). This is because “[i]t would

be incongruous to have different standards determine

the validity of a claim … depending on whether the

claim was asserted in a state or federal court.” Id. at

11. “Thus, if a Bill of Rights protection is incorporated,

there is no daylight between the federal and state

conduct it prohibits or requires.” Timbs, 586 U.S. at

150.

The scope of provisions of the Bill of Rights must

be

pinned

to

the

original,

Founding-Era

understanding. Neither the passage of the Fourteenth

Amendment nor the resulting incorporation of Bill of

Rights provisions changed the scope of those

provisions as applied against the federal government.

And because the scope must be the same against states

as against the federal government, Ramos, 590 U.S. at

93; Timbs, 586 U.S. at 150; McDonald, 561 U.S. at 765;

Malloy, 378 U.S. at 11, the Founding-Era scope must

control in all circumstances.

Again, the Court’s precedents confirm this

conclusion. In Crawford v. Washington, the Court

reviewed cases from 1794 through 1844 to determine

“the original understanding of the common-law right”

codified in the Sixth Amendment’s Confrontation

Clause. 541 U.S. 36, 49–50 (2004). It referenced

treatises from the second half of the 19th century only

to note that they “confirm” the earlier understanding.

24

Id. at 50. Throughout the Crawford opinion, the Court

repeatedly returned to how the Framers of the

Constitution would have understood the right. See e.g.,

id. at 53–54, 56, 59, 61, 66, 67–68; see also Virginia v.

Moore, 553 U.S. 164, 168 (2008) (“We are aware of no

historical indication that those who ratified the Fourth

Amendment understood it as a redundant guarantee of

whatever limits on search and seizure legislatures

might have enacted.”) (emphasis added).

Similarly, in Espinoza v. Montana Dep’t of

Revenue, this Court considered “the founding era and

the early 19th century” evidence to determine the

relevant scope of the Establishment Clause of the First

Amendment. 591 U.S. 464, 480 (2020). The Court

rejected later 19th-century evidence that contradicted

earlier sources because “such evidence may reinforce

an early practice but cannot create one.” Id. at 482.

Time and again, this Court has pegged the scope

of provisions of the Bill of Rights—against both federal

and state governments—to how those provisions were

understood by the Founding generation. Because the

right protected by the Second Amendment is “not ‘a

second-class right, subject to an entirely different body

of rules than the other Bill of Rights guarantees,’”

Bruen, 597 U.S. at 70 (quoting McDonald, 561 U.S. at

780), it too must be pegged to its Founding-Era scope

and understanding.

————♦————

CONCLUSION

For the foregoing reasons, the Court should grant

the Petition for Writ of Certiorari.

25

Respectfully submitted,

JOSEPH G.S. GREENLEE

Counsel of Record

ERIN M. ERHARDT

NATIONAL RIFLE ASSOCIATION

OF AMERICA – INSTITUTE FOR

LEGISLATIVE ACTION

11250 Waples Mill Road

Fairfax, VA 22030

(703) 267-1161

jgreenlee@nrahq.org