Opposition Brief — Christopher Paris, Commissioner, Pennsylvania State Police, Petitioner v. Madison M. Lara, et al.

NO. 24-93

In the

Supreme Court of the United States

________________

CHRISTOPHER PARIS, COMMISSIONER,

PENNSYLVANIA STATE POLICE,

Petitioner,

v.

MADISON M. LARA, et al.,

________________

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

________________

BRIEF FOR THE RESPONDENTS

________________

Joshua Prince, Esq.

CIVIL RIGHTS DEFENSE FIRM, P.C.

646 Lenape Road

Bechtelsville, PA

19505

David H. Thompson

Counsel of Record

Peter A. Patterson

John D. Ohlendorf

William V. Bergstrom

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Respondents

August 29, 2024

i

QUESTIONS PRESENTED

Does the Second Amendment permit Pennsylvania to restrict the firearm rights of 18-to-20-year-old

adults solely on account of their age?

ii

CORPORATE DISCLOSURE STATEMENT

No party to this brief has a parent company or a

publicly held company with a ten percent or greater

ownership interest in it.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

CORPORATE DISCLOSURE STATEMENT ........... ii

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 3

I.

Pennsylvania bans firearm carriage by

18-to-20-year-olds during declared

emergencies. ................................................ 3

II.

Respondents have been hurt

by the ban. ................................................... 4

III.

Proceedings below. ...................................... 4

SUMMARY OF ARGUMENT ..................................... 9

REASONS FOR DENYING THE PETITION .......... 12

I.

This case does not present a split

of authority. ............................................... 12

A.

Following Bruen, the circuit courts

have uniformly held that the Second

Amendment protects the rights of

18-to-20-year-old adults to carry

firearms for self-defense. .......................... 12

B.

Reconstruction-era and Founding-era

history tell the same story in this case. ... 17

II.

The decision below is consistent

with this Court’s Second Amendment

caselaw....................................................... 19

III.

This case is a poor vehicle. ........................ 27

iv

IV.

The Court should not GVR this case. ....... 29

CONCLUSION .......................................................... 32

v

TABLE OF AUTHORITIES

CASES

Page

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) ............................................ 29

Brown v. BATFE,

704 F. Supp. 3d 687 (N.D.W.V. 2023) ............ 15

Espinoza v. Mont. Dep’t of Rev.,

591 U.S. 464 (2020)......................................... 18

Firearms Policy Coalition v. McCraw,

623 F. Supp. 3d 740 (N.D. Tex. 2022) ...... 15, 16

Gamble v. United States,

587 U.S. 678 (2019)......................................... 22

Harrel v. Raoul,

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

Hirschfeld v. BATFE,

14 F.4th 322 (4th Cir. 2021) ........................... 16

Hirschfeld v. BATFE,

5 F.4th 407 (4th Cir. 2021) ............................. 16

Jones v. Bonta,

34 F.4th 704 (9th Cir. 2022) ......... 16, 17, 23, 25

Jones v. Bonta,

47 F.4th 1124 (9th Cir. 2022) ................... 16, 17

Lawrence ex rel. Lawrence v. Chater,

516 U.S. 163 (1996)................................... 31, 32

McDonald v. City of Chicago,

561 U.S. 742 (2010)......................................... 23

New York State Rifle & Pistol Association, Inc. v.

Bruen, 597 U.S. 1

(2022)............... 1, 6, 9, 14, 15, 18, 20, 21, 22, 26

vi

NRA v. BATFE,

700 F.3d 185 (5th Cir. 2012) .......................... 16

NRA v. Bondi,

61 F.4th 1317 (11th Cir. 2023) ................. 15, 19

NRA v. Bondi,

72 F.4th 1346 (11th Cir. 2023) ....................... 15

NRA v. McCraw,

719 F.3d 338 (5th Cir. 2013) .......................... 16

Planned Parenthood S. Atl. v. Kerr,

95 F.4th 152 (4th Cir. 2024) ........................... 31

Reese v. BATFE,

647 F. Supp. 3d 508 (W.D. La. 2022) ............. 15

Rocky Mountain Gun Owners v. Polis,

685 F. Supp. 3d 1033 (D. Colo. 2023) ............. 15

Tyler v. Cain,

533 U.S. 656 (2001)......................................... 29

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) ................................ 4

United States v. Rahimi,

144 S. Ct. 1889 (2024) .. 1, 18, 22, 25, 26, 30, 31

Worth v. Jacobson,

108 F.4th 677 (8th Cir. 2024) ....... 13, 14, 15, 19

STATUTORY AND REGULATORY PROVISIONS

18 PA. C.S.

§ 6106(a)(1) ....................................................... 3

§ 6106(b) ............................................................ 3

§ 6107 ................................................................ 3

§ 6109(b) ............................................................ 3

18 U.S.C. § 922(b)(1) ................................................. 28

vii

1881 Ill. Laws 73 ....................................................... 26

OTHER AUTHORITIES

John Bouvier,

1 INSTITUTES OF AMERICAN LAW (1851) .......... 27

S. Cornell & N. DeDino, A Well Regulated Right:

The Early American Origins of Gun Control,

73 FORDHAM L. REV. 487 (2004) ..................... 25

D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 CHARLESTON L. REV. 205 (2018) ...... 22

1

INTRODUCTION

As this Court is well aware, New York State Rifle

& Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022),

initiated an explosion of litigation across the country

over the textual and historical contours of the Second

Amendment. Two years later, some issues have

clearly divided courts and judges, with significant disagreement, for instance, over “what types of weapons

are ‘Arms’ protected by the Second Amendment,” Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (mem.)

(Thomas, J.), or when, if ever, the government can justifiably disarm for life individuals who have been convicted of felonies, see Suppl. Br. for the Federal Parties, Garland v. Range, No. 23-374 (June 4, 2024) (urging the Court to take multiple cases “to consider Section 922(g)(1)’s constitutionality across a range of circumstances that are fully representative of the statute’s implications”). In United States v. Rahimi, 144

S. Ct. 1889, 1889 (2024), recognizing some of these difficulties and disagreements, several justices of this

Court noted that it must provide additional help to the

lower courts in trying to apply Bruen to thorny cases.

This is, happily, not one of those cases. The issue—whether adults between 18 and 21 years old

have full Second Amendment rights—is undoubtedly

important. But the lower courts have had no trouble

deciding it under the Bruen standard and are in broad

agreement. The courts of appeals are 2–0 post-Bruen

in holding that 18-to-20-year-olds have full Second

Amendment rights and the district courts are (to the

best of Respondents’ knowledge) currently 4–1 on the

same issue, with several appeals (and one en banc reconsideration) still pending. The Court should not

grant certiorari to review at this stage but should

2

permit the ordinary percolation process to continue

and reserve its intervention for the point at which, if

it comes at all, the courts of appeals are actually divided.

That is especially true in this case, because the

decision below faithfully applied this Court’s precedents in concluding 18-to-20-year-olds cannot be

barred from carrying firearms for self-defense. The

Third Circuit’s textual analysis, which concluded that

18-to-20-year-olds are part of the group comprising

“all Americans” who presumptively have Second

Amendment rights, followed directly from this Court’s

decision in Heller. And its historical conclusion, that

the militia laws from the Founding era that required

18-to-20-year-olds to be armed and the corresponding

complete absence of any law cited by the Commissioner from that same period restricting their rights

to use firearms when not serving in the militia demonstrated that 18-to-20-year-olds are entitled to exercise

their Second Amendment rights on equal footing with

other adults, was a textbook application of the Bruen

framework.

For the same reason, this Court should not GVR

this case in light of Rahimi. While Rahimi provided

additional guidance on the appropriate application of

Bruen, and particularly warned against an unduly

stringent review of historical statutes in elucidating a

historical tradition of firearm regulation, this is not a

case where the Third Circuit required the Commissioner to find a “historical twin” before it would uphold

the Pennsylvania law at issue. Rather, the Commissioner lost below because he failed to find any Founding era support whatsoever. Rahimi would not have

3

made the slightest difference in the outcome of this

case and a GVR would be inappropriate.

STATEMENT

I.

Pennsylvania bans firearm carriage by 18to-20-year-olds during declared emergencies.

Pennsylvania generally requires a license to carry

a concealed firearm in public. 18 PA. C.S. § 6106(a)(1).

Though there are exceptions to this requirement, they

do not permit ordinary, law-abiding Pennsylvanians

to carry a concealed firearm lawfully without a license. 18 PA. C.S. § 6106(b). And 18-to-20-year-olds

are categorically ineligible for licenses. 18 PA. C.S. §

6109(b). While Section 6106’s licensing requirement

does not apply tfo open carriage of firearms and although there are exceptions, law-abiding 18-to-20year-olds who are unable to acquire a concealed carry

license are generally permitted to openly carry a firearm in at least some manner for purposes of self-defense.

There are, however, limitations even on open

carry and one such limitation is that Pennsylvania

prohibits open carriage “during an emergency proclaimed by a State or municipal government[ ] executive unless that person is” either “[a]ctively engaged”

in self-defense or possesses a license to carry concealed. 18 PA. C.S. § 6107. The upshot is that ordinary,

law-abiding 18-to-20-year-olds in Pennsylvania are

categorically barred from carrying firearms for selfdefense during any declared state of emergency, like

the nearly uninterrupted three-year state of emergency that was in effect when this case was filed.

Pet.App. 5a.

4

II.

Respondents have been hurt by the ban.

Respondents are two organizations that seek to

promote and defend the fundamental right to keep

and bear arms. Pet.App. 4a n.1; 53a n.1. When they

filed this suit in October 2020, Pennsylvania was in a

state of emergency and they were joined by three individuals, all aged between 18 and 20 years old, who

resided in Pennsylvania and would have carried a

handgun in public for self-defense, were it not for

Pennsylvania’s ban on them doing so. Id. By the time

that the Third Circuit issued its opinion, all three of

the original member plaintiffs had turned 21, but Respondents had identified an additional member with

standing to challenge Pennsylvania’s emergency carry

ban and the Third Circuit permitted Respondents to

supplement the record with his declaration. See Decl.

of George Pershall, Lara v. Comm’r Penn. State Police,

No. 21-1832, Doc. 71-2 (June 12, 2023); Order, Lara,

No. 21-1832, Doc. 76 (Jan. 18, 2024).

III.

Proceedings below.

A. Respondents filed this lawsuit on October 16,

2020. Pet.App. 54a. On December 1, 2020, they sought

a preliminary injunction and to expedite the trial on

the merits. Id. The Commissioner responded by moving to dismiss and opposing the request for preliminary injunctive relief. Id. Applying the then-applicable interest balancing test prescribed, in the Third

Circuit, by United States v. Marzzarella, 614 F.3d 85

(3d Cir. 2010), the district court dismissed Respondents’ complaint. Pet.App. 60a.

At the first step of the test, the district court described its task as “determin[ing] whether the restrictions forming the basis of Plaintiffs’ action fall

5

within the scope of the Second Amendment or, on the

contrary, fall within one of the ‘presumptively lawful

regulatory measures’ recognized by Heller and subsequent caselaw.” Pet.App. 61a. Finding that the ban on

carriage during emergencies was “limited to public

streets and public property” and contained an exception for those engaged in active self-defense, Pet.App.

62a, the district court stated that “the threshold question at bar is whether the relatively … limited restrictions imposed [here] facially implicate the Second

Amendment.” Pet.App. 67a.

The district court concluded that they did not, noting that “the established consensus of [pre-Bruen] federal appellate and district courts from around the

country is that age-based restrictions limiting the

rights of 18-to-20-year-olds” are “ ‘longstanding’ and

‘presumptively lawful’ measures recognized by the Supreme Court in Heller as evading Second Amendment

scrutiny.” Pet.App. 73a–74a. Similarly, the district

court noted that “licensing requirements”—including,

apparently, bars on acquiring a license—also “generally do not implicate the Second Amendment.”

Pet.App. 76a–77a. “The confluence of these two considerations … compel[led] the Court to conclude that

Pennsylvania’s age-based limitation on the issuance

of concealed carry licenses falls … outside the scope of

the Second Amendment.” Pet.App. 77a.

B. A panel of the court of appeals reversed.

1. Applying the test this Court laid out in Bruen,

which had been decided when the appeal was pending,

the majority held that Respondents’ claims fell within

the Second Amendment’s “plain text,” holding that

“the people” referenced in the Second Amendment includes “all adult Americans.” Pet.App. 11a. Noting

6

that this Court stated in Heller that “the people” refers, as in the case First and Fourth Amendments,

“ ‘to all members of the political community, not an

unspecified subset,’ ” and reiterated in Bruen that the

“ ‘Amendment guaranteed to ‘all Americans’ the right

to bear commonly used arms in public subject to reasonable, well-defined restrictions,’ ” the majority explained that “we have construed the term ‘the people’

to cast a wide net.” Pet.App. 11a–12a (first quoting

District of Columbia v. Heller, 554 U.S. 570, 580

(2008), then quoting Bruen, 597 U.S. at 70).

The court rejected the arguments, advanced by

the Commissioner, that because 18-to-20-year-olds

were considered “minors” at the Founding, they were

not part of “the people” with Second Amendment

rights, for three reasons. First, it would have excluded

from the scope of the Second Amendment’s protection

today anyone who lacked rights at the Founding, a

proposition that could limit the scope of the right today to white landowning men. Pet.App. 13a–14a. Second, even assuming being a minor at the Founding

carried some disability with respect to firearm rights

(an assumption the majority later showed had no basis in reality), “it does not follow that … they were ex

ante excluded from the scope of ‘the people.’ ” Pet.App.

14a (citing Kanter v. Barr, 919 F.3d 437, 453 (7th Cir.

2019) (Barrett, J., dissenting)). Third, the government’s argument would have given “the people” a different construction with respect to the Second Amendment than any other constitutional right. Pet.App.

14a–15a.

Turning to history, the panel majority first considered “which period—the Second Amendment’s ratification in 1791 or the Fourteenth Amendment’s

7

ratification in 1868—is the proper historical reference

point for evaluating the contours of the Second

Amendment as incorporated against the Commonwealth.” Pet.App. 17a. Noting that this Court has held

that the Bill of Rights means the same thing whether

applied against the states or the federal government

and has always treated the public understanding of

the Bill of Rights in 1791 as the touchstone for its interpretation, the majority held “that the Second

Amendment should be understood in according to its

public meaning in 1791.” Pet.App. 20a.

Looking to the Founding, the issue was clear. The

Commissioner’s purported analogues from the period

prior to the ratification of the Second Amendment did

not meaningfully restrict the right to carry a firearm

in public and did not apply differently to 18-to-20year-olds than to “any other subset of the Pennsylvania population.” Pet.App. 23a. “Against that conspicuously sparse record of state regulations on 18-to-20year-olds at the time of the Second Amendment’s ratification, [the panel] juxtapose[d] the Second Militia

Act,” which was effectively contemporaneous with the

Second Amendment’s ratification and required 18-to20-year-olds to be armed and to participate in militia

duty. Pet.App. 24a. While the duty to participate in

the militia did not confer Second Amendment rights

on 18-to-20-year-olds, the panel concluded that it was

“good circumstantial evidence of the public understanding at the Second Amendment’s ratification as to

whether 18-to-20-year-olds could be armed, especially

considering that the Commissioner cannot point us to

a single founding-era statute imposing restrictions on

the freedom of 18-to-20-year-olds to carry guns.”

Pet.App. 25a–26a.

8

2. Judge Restrepo dissented and would have held

that the Pennsylvania law forbidding carriage of firearms by 18-to-20-year-olds during declared emergencies did not even trigger Second Amendment scrutiny

because “at the Founding, people under 21 lacked full

legal personhood.” Pet.App. 37a. Suggesting that this

was part of the “plain text” of the Second Amendment,

Judge Restrepo nevertheless based this conclusion on

a variety of historical restrictions. For example, noting that “infants” at the Founding could not marry

without consent, had abridged contract rights, and

limited capacity to sue or be sued, he would have held

that “this legal incapacity controls in the context of

the Second Amendment.” Pet.App. 40a. He similarly

found it persuasive that some colleges acting “in loco

parentis” had regulations prohibiting possession of

firearms by students, Pet.App. 42a, and discounted

the fact that 18-to-20-year-olds served in the militia

with firearms by noting that some militia statutes required parents to ensure their children were equipped

with weapons for militia duty, arguing that under

Heller, “the militia” and “the people” “are distinct.”

Pet.App. 44a–45a.

Though Judge Restrepo would have resolved this

case as a matter of the Second Amendment’s plain

text, he also opined that history supports Pennsylvania’s restrictions on 18-to-20-year-olds. Conceding

that “the 1791 meaning of the Second Amendment

controls,” Pet.App. 48a, Judge Restrepo dismissed as

irrelevant the concern that there was no Founding-era

statutory support for his position because, in his view,

there was no need for such laws at the Founding when

18-to-20-year-olds “bore arms only at the pleasure of

their guardians, and they had no independent right to

petition [the] courts for redress,” Pet.App. 47a. He was

9

confirmed in this opinion by the existence of state laws

from the latter half of the 19th century that restricted

18-to-20-year-olds from purchasing or carrying certain arms. These laws, he said, showed that legislatures could “abrogate the arms privileges of infants.”

Pet.App. 48a.

3. The Commissioner petitioned for rehearing en

banc, which the Court denied. 84a. Judge Krause dissented, arguing that the panel majority had erred in

focusing on 1791 as the critical year for understanding

the scope of the Second Amendment. Judge Krause

also argued that en banc review should have been

granted both to resolve an alleged internal Third Circuit inconsistency regarding the weight of Reconstruction-era sources in interpreting the Constitution as

well as “for error correction” and to consider whether

the case implicates “unprecedented societal concerns

or dramatic technological changes.” Pet.App. 86a–88a

(quoting Bruen, 597 U.S. at 27).

SUMMARY OF ARGUMENT

I. A. This case is not deserving of certiorari because the circuit courts are currently unanimous in

holding that 18-to-20-year-olds have full Second

Amendment rights. In attempting to generate a dispute on this issue, the Commissioner tellingly resorts

to highlighting cases that were decided before Bruen

and that upheld such restrictions through the application of intermediate scrutiny. Obviously, pre-Bruen

interest-balancing cases cannot contribute to a circuit

split today. And considering the pre-Bruen cases that

did closely analyze the text and history of the Second

Amendment only emphasizes the degree to which the

lower courts that have looked at this issue through the

correct lens have been unified in their conclusions.

10

B. Lacking a split on the merits, the Commissioner tries to make this a case about the weight of

Reconstruction-era history in resolving Second

Amendment challenges. The problem with that argument is that Reconstruction-era history could not

change the result below, as shown by a recent decision

of the Eighth Circuit, which carefully analyzed laws

from that period and found them unsupportive of modern restrictions on 18-to-20-year-olds.

II. The decision below faithfully applied Supreme

Court precedent. The Commissioner offers several arguments to the contrary, but none are persuasive.

Starting with the text, the Commissioner complains

that the Third Circuit did not credit his argument that

because 18-to-20-year-olds were “minors” at the

Founding, they were not part of “the people” within

the meaning of the plain text of the Second Amendment. As the Third Circuit correctly noted below, this

is not a textual argument at all, but a historical one.

Under the “plain text” and Heller, 18-to-20-year-olds

are part of “the people” as much as any other American.

Turning to history, the Commissioner claims that

the court of appeals should have analyzed laws from

the latter half of the 19th century. But in Heller,

Bruen, and Rahimi, this Court has only ever used

such evidence to confirm the scope of historical traditions that were evident at the Founding. Here, where

there was no Founding-era evidence of any limitation

on the rights of 18-to-20-year-olds, there was nothing

to confirm and no need to consult later evidence.

The Commissioner’s other historical arguments

are equally unavailing. He claims the majority misunderstood the militia laws and argues that they

11

actually suggest that 18-to-20-year-olds were restricted in their exercise of their Second Amendment

rights, because some required parents to furnish their

children with arms and, when mustering for militia

duty, all militia members were subject to discipline.

But those arguments ignore the critical fact that the

militia laws prove that 18-to-20-year-olds were armed

at the Founding, and the Commissioner has not identified a single law from that period that would have

limited the exercise of their rights on account of their

age.

The failure to produce any relevant restriction

from the Founding era also gives lie to the Commissioner’s claim that the court below inappropriately required a “historical twin” to support the law. The

Commissioner has failed to identify even a sibling or

cousin of such a law. The fact is that the Commissioner failed to carry his burden under Bruen even according him the most generous possible reading of

Founding-era history.

III. Even if the decision below was incorrect in

some way (and it is not), this case is a poor vehicle for

assessing the rights of 18-to-20-year-olds. The Pennsylvania statute at issue is not representative of the

universe of laws targeting 18-to-20-year-olds’ rights

with firearms because it only applies during periods

of declared emergencies. Below, the Commissioner argued, and the Third Circuit rejected, that this case became moot when Pennsylvania no longer was subject

to a declared emergency. While the Third Circuit

rightly rejected the Commissioner’s mootness argument, if the Court were inclined to take a case addressing the Second Amendment rights of 18-to-20-

12

year-olds, it would be better to take a case that does

not include this potential mootness issue.

IV. The Commissioner opens his brief by requesting this court GVR in light of Rahimi. That would be

unwarranted. There is nothing in Rahimi that would

suggest a different result than the one that obtained

below. As already mentioned, this was not a case

where the Third Circuit required a “historical twin”

but rather, one in which the government failed to provide any Founding-era support for its law. Even looking, for the sake of argument, at the late-19th century

evidence the Commissioner relied on below, those

laws do not supply a “principle” underpinning our regulatory tradition that would support disarming legal

adults today.

REASONS FOR DENYING THE PETITION

I.

This case does not present a split of authority.

A. Following Bruen, the circuit courts

have uniformly held that the Second

Amendment protects the rights of 18to-20-year-old adults to carry firearms for self-defense.

This case is one of several at various stages of litigation throughout the federal courts raising the question of whether the government can curtail the rights

of law-abiding, adult 18-to-20-year-olds to possess and

carry firearms on account of their age. The Commissioner is therefore not wrong that this case presents

an important issue—but it is not an issue on which

this Court must weigh in, for the simple reason that

the circuit courts are, as yet, unified in answering the

question “no.” Pet. App. 27a. In addition to the Third

13

Circuit decision at issue here, the Eighth Circuit also

recently confronted this question and reached the

same conclusion, for much the same reasons. In Worth

v. Jacobson, the court applied the Bruen framework to

a Minnesota law that forbade sheriffs from granting

firearm carry licenses to otherwise eligible 18-to-20year-olds. 108 F.4th 677, 684 (8th Cir. 2024). Beginning with the text, Worth rejected the argument that

18-to-20-year-olds are not part of “the people” included within the Second Amendment’s text, holding

that

[o]rdinary, law-abiding, adult citizens that are

18 to 20-year-olds are members of the people

because: (1) they are members of the political

community under Heller’s ‘political community’ definition; (2) the people has a fixed definition, though not fixed contents; (3) they are

adults; and (4) the Second Amendment does

not have a freestanding, extratextual dangerousness catchall.

108 F.4th at 689. Similar reasoning motivated the

court below. See Pet.App. 11a–12a (citing Heller for

the proposition that “the people” “unambiguously refers to all members of the political community);

Pet.App. 13a (rejecting argument that “the first step

of a Bruen analysis requires excluding individuals

from ‘the people’ if they were so excluded at the founding”).

As to history, much like the Third Circuit below,

the Eighth Circuit focused on 1791 as the critical year

for understanding the scope of the Second Amendment, finding that “Bruen strongly suggests that we

should prioritize Founding-era history,” as do this

Court’s other precedents that have interpreted the

14

Bill of Rights according to “ ‘the public understanding

of the right when the Bill of Rights was adopted in

1791.’ ” Id. at 692–93 (quoting Bruen, 597 U.S. at 37).

After rejecting the claim that 18-to-20-year-olds could

be categorically disarmed as “dangerous,” id. at 693–

95, Worth analyzed three types of Founding-era

sources: “(1) the common law, (2) college gun rules,

and (3) municipal regulations,” and, like the court below, found that the Minnesota carry ban was unjustifiable because there was not one Founding era regulation that was similar in “how” and “why” it burdened

the right to keep and bear arms, id. at 695–96.

Indeed, the only significant difference between

the Eight Circuit’s approach and the decision below is

that, despite its misgivings about their usefulness, the

Eighth Circuit also analyzed the late-19th century

laws relied on by the Commissioner here. But that difference proved immaterial to the outcome as Worth

held that those laws had “ ‘serious flaws even beyond

their temporal distance from the founding,’ ” noting

that several barred only concealed carry, allowing 18to-20-year-olds to carry openly for self-defense, a limitation that this Court suggested in Bruen was acceptable when applied to the population generally. Id.

at 697 (quoting Bruen, 597 U.S. at 66). Other laws restricted the sale or furnishing of firearms, but such

laws usually permitted some way for 18-to-20-yearolds to acquire firearms and, once they had them, permitted them to carry on equal footing with other

adults. Id. Referencing specifically an 1856 Alabama

statute that was Minnesota’s (and the Commissioner’s) earliest analogue of this type, but offering a

criticism that applied to many of the 19th-century

laws at issue, the Court noted that the statute, on its

15

own terms, “targets only minors, a status not held by

18 to 20-year-olds in Minnesota.” Id. at 698.

That the only two circuits to assess the constitutionality of these laws post-Bruen have reached the

same conclusion on very similar reasoning is justification enough to deny the petition. But in fact, focusing

on the courts of appeals exclusively understates how

unnecessary this Court’s intervention is at this stage.

As the Commissioner indirectly acknowledges, three

district courts have also concluded, post-Bruen, that

laws targeting 18-to-20-year-olds are unconstitutional

in light of the text and history of the Second Amendment. See Pet. 18 (citing Fraser v. BATFE, 672 F.3d

118 (E.D. Va. 2023), appeal pending sub. nom. McCoy

v. BATFE, No. 23-2085 (4th Cir.); Rocky Mountain

Gun Owners v. Polis, 685 F. Supp. 3d 1033 (D. Colo.

2023), appeal pending No. 23-1251 (10th Cir.); Firearms Policy Coalition v. McCraw, 623 F. Supp. 3d 740

(N.D. Tex. 2022)). To that list, Respondents would add

a fourth. Brown v. BATFE, 704 F. Supp. 3d 687

(N.D.W.V. 2023), appeal pending No. 23-2275 (4th

Cir.). The other side of the alleged “split” is notably

weak, with the Commissioner forced to rely, see Pet.

18–19, for post-Bruen support on a single district

court decision (currently on appeal in the Fifth Circuit), Reese v. BATFE, 647 F. Supp. 3d 508 (W.D. La.

2022), appeal pending No. 21-30033 (5th Cir.), and a

panel opinion from the Eleventh Circuit that has been

vacated and is being reconsidered by the court sitting

en banc, NRA v. Bondi, 61 F.4th 1317 (11th Cir. 2023),

reh’g en banc granted, op. vacated, 72 F.4th 1346 (11th

Cir. 2023).

In a tacit acknowledgment of the weakness of its

split, the Commissioner looks to pre-Bruen cases to

16

find examples upholding restrictions on 18-to-20year-olds, see Pet. 17, but given that Bruen invalidated the lower courts’ reliance on intermediate scrutiny, it is questionable at best that such cases should

be considered. And even if they are, evidence of a circuit split over the textual and historical scope of the

Second Amendment is elusive. The only circuit court

to uphold such restrictions pre-Bruen was the Fifth

Circuit, and there the court couched its textual and

historical analysis in tentative terms and ultimately

held the laws at issue constitutional only through application of interest balancing. See NRA v. BATFE,

700 F.3d 185, 204 (5th Cir. 2012) (“[W]e face institutional challenges in conducting a definitive review of

the relevant historical record. … We ultimately conclude that the challenged federal laws pass constitutional muster even if they implicate the Second

Amendment guarantee.”); NRA v. McCraw, 719 F.3d

338, 347 (5th Cir. 2013).1

On the other side of the ledger, the two pre-Bruen

circuit court cases that most closely analyzed the text

and history of the Second Amendment came to the

same conclusion that the Third Circuit and Eight Circuit have after Bruen. See Hirschfeld v. BATFE, 5

F.4th 407, 440 (4th Cir. 2021) (“A review of the Constitution’s text, structure, and history reveals that 18year-olds are covered by the Second Amendment.”),

vacated as moot 14 F.4th 322 (4th Cir. 2021); Jones v.

1 The Fifth Circuit is now reconsidering the constitutional-

ity of the same law at issue in NRA v. BATFE in Reese, No. 2130033. The Texas law at issue in NRA v. McCraw was held unconstitutional in Firearms Policy Coalition, 623 F. Supp. 3d at

756, a decision which became permanent when Texas dismissed

its own appeal.

17

Bonta, 34 F.4th 704, 723 (9th Cir. 2022) (“[O]ur historical analysis leads us to conclude that young adults

have a Second Amendment right to keep and bear

arms.”), op. vacated on reh’g, 47 F.4th 1124 (9th Cir.

2022). Although “Hirschfeld and Bonta were decided

before Bruen,” and “Hirschfeld was vacated as moot

because the plaintiff turned 21” while “Bonta was vacated and remanded to the district court for consideration in light of Bruen,” both hewed close to the analysis that this Court eventually clarified in Bruen, and

the court below found both “nevertheless instructive.”

Pet.App. 15a n.12.

Taken together, far from demonstrating a split,

the Commissioner’s collected cases demonstrate uniformity among courts that have considered the issue

in light of Bruen, and significant agreement even with

courts pre-Bruen who looked at the issue through an

appropriate textual and historical lens. They also

highlight the fact that, absent this Court’s intervention, additional cases raising this issue are currently

pending in the Fourth, Fifth, Tenth, and Eleventh Circuits which promise to further air these issues. Lacking a split, there is simply no good reason, at this juncture, not to permit those courts to weigh in.

B.

Reconstruction-era and Founding-era

history tell the same story in this case.

Lacking a division of authority on the merits, the

Commissioner attempts to make this a vehicle to resolve a doctrinal question that this Court has flagged

twice: whether the Second Amendment’s meaning is

pegged to the public understanding of its scope at its

ratification in 1791 or the Fourteenth Amendment’s

ratification in 1868. Pet. 13–14.

18

The Commissioner tries to set up a split between

the Third Circuit below, which did not consider laws

from the mid-to-late 19th century, and courts that

have at least given the time period some weight, but

the division of authority is immaterial here. This

Court has already acknowledged that this question

has yet to be explicitly addressed. Bruen, 597 U.S. at

37. But even as it acknowledged this important issue

in both Bruen and Rahimi, this Court had the opportunity to address that question and declined to do so

because it was unnecessary as “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” the questions at issue. Id.; see

also Rahimi, 144 S. Ct. at 1898 n.1.

The same is true here. Although the majority declined to consider mid-to-late-19th century laws, the

fact of the matter is, even if it had looked at those

laws, the Commissioner had offered just three, from

Alabama, Kentucky, and Tennessee, that were enacted prior to 1870. Pet.App. 20a–21a n.15. Three

statutes are not enough to “establish an early American tradition.” Espinoza v. Mont. Dep’t of Rev., 591

U.S. 464, 482 (2020) (rejecting suggestion that laws of

“more than 30 States” enacted “in the second half of

the 19th century” evidenced a tradition informing the

scope of the First Amendment). And as Worth demonstrated, even if every 19th-century statute relied on

by the Commissioner is analyzed closely, there is more

than just the date of enactment that prevents those

laws from identifying a historical tradition of regulation that would excuse Pennsylvania’s ban.

The Commissioner objects that Bondi, which also

dealt with the Second Amendment rights of 18-to-20-

19

year-olds and reached a different result while focusing

on the Reconstruction period as “the most relevant to

our inquiry on the scope of the right to keep and bear

arms,” demonstrates that this debate does matter

here. Pet. 15 (quoting Bondi, 61 F.4th at 1321). But

Bondi has been vacated and is no precedent at all. And

even leaving that aside, it is unpersuasive as its analysis is considerably less detailed than Worth’s, see 108

F.4th at 697–98, and the Bondi court entirely ignores

the fact that the historical laws targeted only minors

whereas modern restrictions on 18-to-20-year-olds affect adults, a serious disconnect in both “how” and

“why” the laws impact the right to keep and bear

arms, see 61 F.4th at 1326–27.

II.

The decision below is consistent with this

Court’s Second Amendment caselaw.

It should be no surprise, given the broad agreement among courts to consider the question, that the

Third Circuit’s conclusion that the Second Amendment’s text and history require holding special restrictions on the rights of 18-to-20-year-olds unconstitutional resulted from a faithful application of this

Court’s precedents. The Commissioner claims otherwise but his arguments are not well taken.

A. Beginning with the text of the Second Amendment, the Commissioner argues that the panel erred

when it “simply presumed textual coverage and required the Commissioner to rebut that presumption”

and compounded the problem when it “held that the

Commissioner could not rely on any historical evidence to defeat that presumption” at the textual level.

Pet. 20–21 (emphasis in original). The Commissioner’s arguments miss the mark. The panel majority

did not “presume” an answer to the textual question

20

under Bruen, but rather recognized that it was bound

to follow this Court’s binding interpretation of the text

in Heller, which stated that “there is ‘a strong presumption that the Second Amendment [right] … belongs to all Americans.’ ” Pet.App. 11a–12a (quoting

Heller, 554 U.S. at 581). As Bruen would later make

explicit, the purpose of the textual analysis is to determine what acts and people are presumptively protected by the Second Amendment. 597 U.S. at 17

(“[W]hen the Second Amendment’s plain text covers

an individual’s conduct, the Constitution presumptively protects that conduct.”). The majority was not,

therefore, presuming the text covered “all people,” but

applying Heller’s holding that it does (and that with

the actual textual coverage comes the presumption of

unconstitutionality). It therefore appropriately put

the onus on the Commissioner to distinguish this case

from Heller

The majority was also right to reject the Commissioner’s assertion that historical evidence that 21 was

the normal age of majority at the Founding had bearing on the “plain text” of the Second Amendment.

Pet.App. 11a, 13a. As the majority explained, such evidence does not bear on who are “the people” but on

whether certain people, who are minors, could also

have their firearm rights curtailed. Id. And that is a

historical, not a textual question, appropriate for consideration at the final stage of Bruen’s analysis. If in

fact people were disarmed because they were “minors”

(and they were not), that would possibly be relevant

to restrictions that are similar both in “how” and

“why” they limit the exercise of the right today, but

that would say nothing about who are “the people” referred to in the Constitution. See Pet.App. 13a.

21

In counterargument, the Commissioner claims

Heller itself supports consideration of such evidence

as a matter of the plain text, because Heller examined

“a variety of legal and other sources to determine the

public understanding” of the Second Amendment. Pet.

21 (quoting Bruen, 597 U.S. at 21). There is no inconsistency here. While Heller looked to dictionaries,

treatises, cases, and other historical sources to see

how the words in the Amendment were used in context at the time of the Founding, the Commissioner’s

attempt to read alleged historical limitations on the

right into the text, not as an element of its inherent

meaning but because it supposes those restrictions existed at the Founding, is categorically different. In

fact, it is exactly what courts are tasked with doing

under Bruen’s historical analysis, where the burden is

unmistakably on the Commissioner. The Commissioner’s argument “conflates Bruen’s two distinct analytical steps,” and the court of appeals rightly rejected it. Pet.App. 13a.

B. Turning to history, the Commissioner argues

that the Third Circuit erred in giving no weight to his

proffered analogues from after 1850. Pet. 21. As discussed above, if the court had considered that later

evidence, it would have made no difference to the outcome of the case. But even accepting for the sake of

argument that it could have made a difference, there

was nothing inappropriate with how the Third Circuit

treated 19th-century history.

The Commissioner claims that the panel’s decision to set aside 20 laws, dating at the earliest to 1856,

but mostly coming from the final quarter of the 19th

century, in its assessment of the historical scope of the

right, conflicts with this Court’s own approach, which

22

“consistently looks to [the mid-to-late 19th century] to

confirm its understanding of the Second Amendment.”

Pet. 21. But this language demonstrates the sleight of

hand that the Commissioner is attempting here. It is

true that in Heller, Bruen, and Rahimi, this Court

looked to post-ratification sources to confirm the understanding of the Second Amendment it had arrived

at from analyzing the Founding. But in each case, the

relevant traditions of regulation were evidenced by

Founding-era restrictions, and later sources merely

demonstrated their continued vivacity long after the

Second Amendment’s ratification.

For example, the Commissioner points to this

Court’s discussion of “sensitive places” in Bruen as

“particularly instructive on this score,” because this

Court noted that “there were ‘relatively few 18th- and

19th-century sensitive places where weapons were altogether prohibited’ ” and referenced laws that largely

post-dated the ratification of the Fourteenth Amendment. Pet. 22 (quoting Bruen, 597 U.S. at 30). But in

that case there indisputably were such laws at the

Founding, see, e.g., D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 CHARLESTON L. REV. 205,

235–36 (2018), and the later laws merely confirmed

what was evidenced by earlier sources. The same was

true of Heller’s historical work regarding the individual right to own firearms, where “19th-century treatises were treated as mere confirmation of what the

Court thought had already been established” by earlier sources. Gamble v. United States, 587 U.S. 678,

702 (2019) (emphasis added). And in Rahimi, the

Court focused on Founding era (and earlier) history,

with discussions of later history largely limited to confirming that earlier restrictions had been accepted as

part of American legal framework. 144 S. Ct. at 1901.

23

The Commissioner is right that in McDonald the

Court did look closely at 19th century sources, see Pet.

22, but that made sense in context because McDonald

did not attempt to determine what the content of the

Second Amendment was, but rather whether it was

considered, at both the Founding and the ratification

of the Fourteenth Amendment, to be one of the “fundamental rights necessary to our system of ordered

liberty.” McDonald v. City of Chicago, 561 U.S. 742,

778 (2010). McDonald was, therefore, not undertaking

the same analysis exemplified in Heller, Bruen, and

Rahimi, and its example is much less relevant.

Here, unlike in Heller, Bruen, or Rahimi, there

are zero laws at the Founding or before that limited

the Second Amendment rights of adults (or 18-to-20year-olds) on account of their age. In fact, once the majority set aside late-19th century laws, all that was left

was a single 1721 Pennsylvania statute “focused on

preventing Pennsylvanians from hunting on their

neighbors’ land,” and “to the extent the statute did

burden the right to carry a gun in public, it did so

without singling out 18-to-20-year-olds, or any other

subset of the Pennsylvania population.” Pet.App. 22a–

23a.

Indeed, the landscape at the Founding is substantially worse for the Commissioner than the discussion

so far has suggested, since “there is not just a vacuum

at the founding era: instead, the founding-era evidence of militia membership [of 18-year-olds] undermines” the Commissioner’s position. Jones, 34 F.4th

at 722. As the Court below noted, “[t]hat young adults

had to serve in the militia indicates that founding-era

lawmakers believed those youth could, and indeed

should, keep and bear arms.” Pet.App. 24a. Following

24

that conclusion, there is nothing to “confirm” with

later history, and so the Third Circuit’s decision to disregard it is perfectly consistent with this Court’s approach in Heller, Bruen, and Rahimi.

C. The Commissioner takes issue with the Third

Circuit’s reliance on these militia laws, parroting

Judge Restrepo’s criticism of the panel opinion as

“based exclusively on 18th-century militia laws.” Pet.

24 (quoting Pet.App. 86a). But that claim gets Bruen

backwards. The Third Circuit’s holding was based on

a finding that the text of the Second Amendment extended to cover 18-to-20-year-old adults, and on the

Commissioner’s failure to provide any historical justification for treating them differently than the text

would suggest. Plaintiffs did not need to prove, with

the militia laws, that the Second Amendment reaches

18-year-olds, the Commissioner needed to prove the

reverse. Furthermore, the panel did not treat the militia laws as somehow conferring the right to keep and

bear arms on 18-to-20-year-olds. Rather, they provided “circumstantial evidence of the public understanding at the Second Amendment’s ratification as to

whether 18-to-20-year-olds could be armed” that

aligned with what was already evident from the Commissioner’s failure to cite “a single founding-era statute imposing restrictions on the freedom of 18-to-20year-olds to carry guns.” Pet.App. 26a.

The Commissioner disagrees with that conclusion,

but he misunderstands the importance of the militia

laws. He suggests that they “actually demonstrate the

Founding generation’s view that under-21-year-olds

should have access to deadly weapons only under appropriate adult supervision” because such laws required parents to ensure their children were

25

adequately outfitted for militia duty and because,

“once properly mustered, militiamen were subject to

fines, strict discipline, and punishment, and their

arms were subject to periodic inspection.” Pet. 24–25.

The panel correctly rejected the first of these claims.

“[E]ven though there were founding-era militia laws

that require parents or guardians to supply arms to

their minor sons, nothing in those statutes says that

18-to-20-year-olds could not purchase or otherwise acquire their own guns.” Pet.App. 26a. As for the second,

there is nothing to it. That 18-to-20-year-olds were

subject to discipline in the militia was not unique to

their age class—all militia members were subject to

these rules. See S. Cornell & N. DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 FORDHAM L. REV. 487, 510 (2004). And of

course, musters were only occasional events; whenever the militia was not mustering, that disciplinary

structure did not apply. This demonstrates one of the

most powerful implications from these laws, which is

precisely the opposite of the argument the Commissioner lays out: at the time of the Founding, 18-to-20year-olds were required to have firearms, and there

was not a single law that would have restricted in any

way their lawful use of those arms on account of their

age when not actively mustering for militia duty. See

Jones, 34 F.4th at 721.

D. The Commissioner claims that the majority below “demand[ed] that the Commissioner produce historical twins from the Founding era” and that its approach to historical analogues was generally more

stringent than Rahimi, which this Court decided after

the decision below was issued, would have permitted.

Pet. 22–23. Not so. Though it predated Rahimi, the

decision below was fully consistent with this Court’s

26

instruction that courts must ask “whether the challenged regulation is consistent with the principles

that underpin our regulatory tradition.” 144 U.S. at

1898 (citing Bruen, 597 U.S. at 26–31). While the

Commissioner castigates the court below for demanding a Founding era twin, as mentioned above, the

Commissioner failed to cite a single Founding era law

that singled out 18-to-20-year-olds (or any other age

group, for that matter) for any form of infringement of

the right to keep and bear arms on account of their

age.

Even if the Court were to consider the Commissioner’s too-late analogues from the latter half of the

19th century, that would not change the result of this

case under Rahimi. As Rahimi stressed, the purpose

of the historical analysis is to determine “the principles that underpin our regulatory tradition,” and modern laws are permissible only to the extent they are

consistent with those same principles. Rahimi, 144 S.

Ct. at 1898. Although the Commissioner claims that

“between 1856 and 1897 20 jurisdictions enacted laws

specifically curtailing the gun rights of under 21-yearolds—most of which were significantly more restrictive than the Pennsylvania law under review here,”

Pet. 2, as he notes elsewhere in his petition, most individuals under 21 at those earlier periods were “minors.” Indeed, the laws the Commissioner cites almost

all explicitly state that they apply to “minors” (and for

those that do not say so explicitly, that is still, in effect, what they did). See, e.g., 1881 Ill. Laws 73 (prohibiting anyone other than the father, guardian or

employer of “the minor herein named” to provide “any

minor within this state” with a pistol or other enumerated weapon). So, under Rahimi, the appropriate

principle to draw from these laws is that states have,

27

at times, curtailed the Second Amendment rights of

minors. But 18-to-20-year-olds are not minors today,

and the historical principle that undergirds even the

Commissioner’s best possible case cannot reach 18-to20-year-old adults today. See John Bouvier, 1 INSTITUTES OF AMERICAN LAW 148 (1851) (Upon reaching

the age of majority, “every man is in the full enjoyment of his civil and political rights.”).

E. Finally, even if one of the Commissioner’s foregoing objections to the Third Circuit’s application of

this Court’s precedents did have some merit—and to

be clear, none do—that would not be sufficient to justify a grant of certiorari. Given the lack of a split of

authority on any significant question in this case, the

Commissioner is left to rely on the fact that this case

will have other impacts “within the Third Circuit.”

Pet. 25. Indeed, concerns with the Third Circuit’s internal consistency were motivating factors for Judge

Krause in dissenting from denial from rehearing en

banc. Pet.App. 87a–88a. But those concerns were not

even significant enough to attract a majority of the

Third Circuit, the court directly impacted by the precedential nature of the opinion below. It should certainly not attract the attention of this Court.

III.

This case is a poor vehicle.

That there is no split of authority on this issue and

the decision below faithfully applied Bruen is reason

enough to deny the petition. But if more is required,

this case supplies it. Attempting to underscore the importance of this case, the Commissioner points out

that several other states have laws that, in some way,

single out 18-to-20-year-olds for differential treatment with respect to the right to keep and bear arms.

See Pet. 19 n.13 (collecting laws). Respectfully, the

28

presence of so many other laws is a reason to deny the

petition, not grant it. If, in fact, 18-to-20-year-olds

have no share in the fundamental right to armed selfdefense, then those laws provide many other opportunities to establish a split of authority requiring this

Court’s intervention. Indeed, as Respondents pointed

out above, several such laws are being considered now

in courts around the country.

It is also worth noting that in comparison to many

of the other cases being litigated today, the Pennsylvania law at issue here burdens the right in an odd

way, that is not broadly representative of the other

laws cited by the Commissioner. For example, the law

that was the subject of NRA v. BATFE and Hirschfeld

and is currently at issue in the Reese, Brown, and

McCoy cases is a flat ban on 18-to-20-year-olds acquiring a handgun in the regulated commercial market.

See 18 U.S.C. § 922(b)(1). It is broadly similar to other

laws restricting the purchase of firearms by 18-to-20year-olds, like the one at issue in Bondi. And the law

that was at issue in NRA v. McCraw and Firearms

Policy Coalition was a straightforward bar on 18-to20-year-olds acquiring licenses to carry handguns, in

the same way that some other state laws do. But here,

Pennsylvania permits open carry by 18-to-20-yearolds under most circumstances but suspends that ability during declared states of emergency. While neither

party has focused on the unusual nature of this limitation on the right, it does mean that this case will

map less cleanly onto future cases than others that

this Court might consider taking (if a split arises) in

the future.

The fact that the law at issue only impedes exercise of Second Amendment rights during declared

29

states of emergency also makes this case a poor vehicle for this Court’s review. Below, the Commissioner

argued that this case became moot when Pennsylvania ceased to operate under a series of declared states

of emergency. The Commissioner may raise those arguments again before this Court, and even if he does

not, because mootness is jurisdictional, this Court

would have to address that issue itself. While Respondents firmly believe that the Third Circuit was

correct to hold that this case is not moot under the

“capable of repetition, yet evading review” exception,

Pet.App. 28a–29a, the presence of the mootness issues

adds complexity to this case and potentially could impede the Court’s ability to answer the question presented if it were to determine, despite Respondents’

arguments to the contrary, that this case is moot. See

Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4–5 (2023).

Therefore, if this Court were to determine that it is

appropriate to grant review in a case addressing the

Second Amendment rights of 18-to-20-year-olds, it

would be preferable to do so in a case challenging a

law that more sweepingly restricts the ability of members of that group to possess or carry firearms, without the question of mootness arising from temporally

bounded bans such as those, like here, that are based

on a state of emergency.

IV.

The Court should not GVR this case.

This Court has previously explained that GVR is

appropriate only where there is “a reasonable probability” that the lower court’s view of the case will

change in light of an “intervening development.” Tyler

v. Cain, 533 U.S. 656, 666 n.6 (2001). Here, the Commissioner claims that this Court’s decision in Rahimi

is such a development, see Pet. 12, arguing that the

30

Third Circuit required the Commissioner to put forward a “historical twin” to justify the 18-to-20-yearold emergency carry ban, and that Rahimi repudiated

that approach. But as discussed above, the Court below did no such thing and even considering all the

Commissioner’s evidence, without respect to its proximity to the Founding, he has failed to elucidate any

“principle” underpinning those historical regulations

that would permit disarming adults today. Rahimi,

144 S. Ct. at 1898.

The Commissioner points out that this Court issued GVR orders in several Second Amendment cases

following Rahimi and argues that “[t]he GVR order in

Range [v. Garland, No. 23-374 (U.S. July 2, 2024)]” is

“particularly instructive” because “[t]he panel here

was required to follow [the now-vacated decision in]

Range.” Pet. 12–13. But those cases were all pending

before this Court at the time that Rahimi was decided

and almost all of them involved other provisions of 18

U.S.C. § 922, which were much more closely related in

both relevant history and effect to the law at issue in

Rahimi than is Pennsylvania’s emergency carry ban.

Even if there was some “reasonable probability” that

Rahimi would bear on them, there is no reason to

think the same is true here.

In fact, there is unusually strong evidence in this

case that Rahimi would not change the result below.

The Eighth Circuit’s Worth decision was issued after

Rahimi and, as discussed above, the court below and

the Worth court reached the same conclusion on

nearly the same reasoning, with no hint whatsoever

that Worth approached the question differently because it had the benefit of Rahimi. And this all makes

sense, given that Rahimi itself was clear that it was

31

not altering the historical test laid out in Bruen and

merely sought to correct recent misunderstandings of

the methodology of those cases by courts that had too

rigidly applied the Bruen test. Rahimi, 144 S. Ct. at

1897. Because the Third Circuit’s application of Bruen

was faithful to this Court’s dictates, there is no reason

to expect that Rahimi should have resulted in the

Worth court reaching a different result.

As for the fact that the Court below relied on

Range, the majority only cited the case a handful of

times, discussing it most significantly in its analysis

of the textual scope of “the people,” where Range

clearly carried less weight than Heller’s dispositive interpretation of that term to mean “all Americans.” See

Pet.App. 12a. And in any event, the Commissioner is

overreading the Range GVR. “As several courts have

recognized, the issuance of a GVR does not speak to

the underlying merits of the case and does not necessitate an automatic reversal.” Planned Parenthood S.

Atl. v. Kerr, 95 F.4th 152, 164–65 (4th Cir. 2024) (collecting cases from the First, Sixth and D.C. Circuits).

The GVR order in Range does not mean that it was

wrongly decided, and particularly does not invalidate

its straightforward application of Heller’s textual

analysis of the Second Amendment. It therefore

should not cast the slightest doubt on the panel’s opinion either.

Finally, as this Court has previously cautioned,

the decision of whether to GVR depends “[up]on the

equities of the case,” and “if the delay and further cost

entailed in a remand are not justified by the potential

benefits of further consideration by the lower court, a

GVR order is inappropriate.” See Lawrence ex rel.

Lawrence v. Chater, 516 U.S. 163, 167–68 (1996) (per

32

curiam). Here, in addition to the fact that a remand is

unlikely to change anything, further delay is particularly inappropriate because the restriction at issue

impacts Pennsylvanians only within a relatively narrow age range. For individuals who are 18-to-20-years

old today, justice delayed is well and truly justice denied, as an order to vacate and remand for another

round of briefing in the court of appeals would

threaten to ensure that the identified member of the

organizational Respondents would never experience

the benefit of a court ruling in his favor, just as the

original plaintiff members never did.

CONCLUSION

The Court should deny the petition for certiorari.

Respectfully submitted,

Joshua Prince, Esq.

CIVIL RIGHTS DEFENSE FIRM, P.C.

646 Lenape Road

Bechtelsville, PA

19505

David H. Thompson

Counsel of Record

Peter A. Patterson

John D. Ohlendorf

William V. Bergstrom

Cooper & Kirk, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Respondents