Amicus Curiae Brief — Philip J. Marquis, Petitioner v. Massachusetts

No. 25-5280

In the

Supreme Court of the United States

─────────────

PHILIP MARQUIS

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

─────────────

On Petition for Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

─────────────

BRIEF OF AMICUS CURIAE GUN OWNERS’

ACTION LEAGUE, INC. IN SUPPORT OF

PETITIONER

─────────────

JOHN PARKER SWEENEY

Counsel of Record

JAMES W. PORTER, III

TIMOTHY R. WILLMAN

BRADLEY ARANT BOULT CUMMINGS LLP

1900 K STREET N.W., SUITE 800

WASHINGTON, DC 20006

(202) 719-8216

jsweeney@bradley.com

Counsel for Amicus Curiae

(Additional counsel listed on inside cover)

September 8, 2025

W. CHADWICK LAMAR, JR.

BRADLEY ARANT BOULT CUMMINGS LLP

1819 FIFTH AVENUE NORTH

BIRMINGHAM, AL 35203

(205) 521-8533

clamar@bradley.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT................................................................ 5

I.

The decision below conflicts with this

Court’s precedents and upholds the same

discretion struck down in Bruen. ..................... 5

A. Bruen forbade discretionary carrylicense regimes. ........................................... 5

B. The Nonresident Carry License

Regime defies Bruen by providing

licensing

officials

unfettered

discretion. .................................................... 6

C. The decision below defies the

“dangerousness” teachings of Bruen

and Rahimi. ............................................... 10

II.

The decision below worsens multiple

divisions of authority. ..................................... 14

A. Any regulation that even temporarily

“hinders” the bearing of arms

satisfies the plain-text inquiry.................. 14

B. Firearms restrictions must be

justified by Bruen’s text and history

standard—not this Court’s dicta. ............. 16

ii

III.

This case presents urgent questions of

exceptional

importance

requiring

correction of the decision below now. ............. 17

CONCLUSION .......................................................... 18

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Brown v. Davenport,

596 U.S. 118 (2022) .............................................. 17

Caetano v. Massachusetts,

577 U.S. 411 (2016) ................................................ 2

Commonwealth v. Donnell,

495 Mass. 471 (2025) ......................................... 6, 7

Dennis v. Chief of Police of Wareham,

105 Mass. App. Ct. 1134, 2025 WL

1693363 (2025) ..................................................... 10

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................ 16, 17

Dupras v. Deputy Chief of Police of Fall

River, No. 2173CV00881, 2025 WL

1085407 (Mass. Super. Feb. 12, 2025)................... 9

Frein v. Penn. State Police,

47 F.4th 247 (3d Cir. 2022) .................................. 14

McRorey v. Garland,

99 F.4th 831 (5th Cir. 2024) .......................... 15, 16

Md. Shall Issue, Inc. v. Moore,

116 F.4th 211 (4th Cir. 2024) (en

banc) ......................................................... 12, 15, 16

New York State Rifle & Pistol

Association, Inc. v. Bruen,

597 U.S. 1 (2022) ............ 2, 3, 5, 6, 7, 11, 12, 16, 17

iv

NLRB v. Noel Canning,

573 U.S. 513 (2014) ........................................ 17, 18

Ortega v. Grisham,

--- F.4th ----, 2025 WL 2394646 (10th

Cir. Aug. 19, 2025) ......................................... 15, 17

United States ex rel. Schutte v.

SuperValu Inc.,

598 U.S. 739 (2023) .............................................. 17

United States v. Peterson,

--- F.4th ----, 2025 WL 2462665 (5th

Cir. Aug. 27, 2025) ............................................... 16

United States v. Rahimi,

602 U.S. 680 (2024) ............................... 2, 8, 11, 12,

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) .............................. 17

Wilson v. Hawaii,

145 S. Ct. 18 (2024) ................................................ 8

Statutes

M.G.L. c. 140 § 121F................................................ 3, 6

M.G.L. c. 140 § 131 .................................................. 6, 8

M.G.L. c. 140 § 131F.................................................. 13

M.G.L. c. 269 § 10 (2024)............................................. 2

v

Other Authorities

Non-Resident Temporary License to Carry

Firearms, Mass. Dep't of Crim. Just. Info.

Servs., Firearms Records Bureau (Revised

Mar. 2024) ............................................................ 13

Sup. Ct. R. 37.2 ............................................................ 1

Sup. Ct. R. 37.6 ............................................................ 1

U.S. CONST. amend II .................................................. 1

1

INTEREST OF AMICUS CURIAE 1

Gun Owners’ Action League, Inc. (“GOAL”)

formed in 1974, is a membership organization focused

on promoting and defending the fundamental right to

keep and bear arms for competition, recreation, and

self-defense. GOAL promotes shooting sports,

provides firearms safety training, educates the public

about firearms, and defends the Second Amendment

rights of ordinary citizens. GOAL’s primary endeavor

is to safeguard Americans’ constitutional rights,

including the fundamental right to keep and bear

arms, which is “necessary to the security of a free

State.” U.S. CONST. amend II. GOAL firmly believes,

as America’s Founders did, that the power of

government to act is justly limited by the fundamental

rights of the people, including the right to keep and

bear arms for lawful purposes including self-defense.

GOAL has a paramount interest in this case,

which impacts the fundamental right to keep and bear

arms. This Court’s precedents and our Nation’s

historical tradition of firearm regulation forbid

prosecution of a New Hampshire citizen for driving

into Massachusetts with his firearm in his vehicle

without first acquiring a nonresident license where he

lawfully carried his firearm under New Hampshire

law. GOAL submits this brief in support of Petitioner

because its non-Massachusetts resident members

1 Pursuant to Rule 37.6, counsel for amicus curiae certifies that

this brief was not authored in whole or in part by counsel for any

party and that no person or entity other than amicus curiae or

its counsel has made a monetary contribution to the preparation

or submission of this brief. Pursuant to Rule 37.2, counsel for all

parties received notice of amicus’ intention to file this brief at

least ten days before the due date.

2

wish to exercise their right to travel into the state with

their lawfully carried firearms without fearing

prosecution.

INTRODUCTION

Philip Marquis, a New Hampshire citizen,

lawfully carried his handgun in New Hampshire. The

Commonwealth of Massachusetts seeks to prosecute

and incarcerate him because he did not obtain a

Massachusetts nonresident carry license before he

drove into the Commonwealth with his handgun.

Massachusetts law prohibits a nonresident from

knowingly carrying a firearm on their person or in a

vehicle, loaded or unloaded, without first obtaining a

license from Massachusetts. Mass. Gen. Laws ch.

(“M.G.L. c.”) 269, § 10(a) (2024) (“Nonresident Carry

License Regime”). But the historical record yields no

comparable pre-condition on the right to keep and

bear arms. The Commonwealth’s statutory scheme

violates the Second Amendment under New York

State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S.

1 (2022).

The same court that necessitated this Court’s

intervention in Caetano v. Massachusetts, 577 U.S.

411 (2016) has, once again, issued a decision that

cannot be squared with precedent or history. The

Massachusetts Supreme Judicial Court rejected Mr.

Marquis’s facial challenge to the nonresident licensing

scheme by invoking irrelevant historical analysis from

United States v. Rahimi, 602 U.S. 680 (2024) and dicta

about licensing in Bruen without requiring the

Commonwealth to provide evidence of a justifying

tradition in the actual historical record.

3

The Court should grant Mr. Marquis’s Petition.

The decision below cannot be reconciled with this

Court’s precedents. Bruen forbade open-ended,

discretionary licensing regimes like the one at issue

here. The Nonresident Carry License Regime vests

discretion in the licensing official who may deny an

applicant as unsuitable for “behavior that suggests ...

the applicant may create a risk to public safety or a

risk of danger to self or others.” M.G.L. c. 140 §

121F(k). And both Bruen and Rahimi foreclosed any

construction of a “dangerousness” tradition that could

justify categorical ex ante disarmament.

Certiorari is also warranted because the

decision deepens conflicts of authority. The courts

disagree about whether the Second Amendment’s

plain text even covers arms-bearing conduct burdened

by licensing schemes. And they disagree about

whether this Court’s dicta rather than its holding

requiring courts to apply a text and history standard

should drive the Second Amendment analysis in

licensing scheme challenges.

SUMMARY OF ARGUMENT

Bruen prohibited carry-license regimes that

vest licensing officials with “discretion to deny

licenses based on a perceived lack of need or

suitability.” 597 U.S. at 13 (emphasis added). But

Massachusetts’ Nonresident Carry License Regime

provides its licensing officials broad and unrestricted

discretion to deny an application for suitability based

on undefined and amorphous language. And both onthe-ground accounts and judicial applications confirm

that, in Massachusetts, the Second Amendment has

been forced to yield to discretionary suitability

4

determinations. Although this is reason enough for

intervention, other justifications abound.

The Massachusetts Supreme Judicial Court

rejected Mr. Marquis’s facial challenge because a

tradition “restrict[ing] possession of firearms by

demonstrably dangerous persons” justified the

Commonwealth’s precondition to armed self-defense.

App.36. No such conclusion can be gleaned from a fair

reading of Bruen, Rahimi, or history, which

demonstrate that historical surety and affray laws

cannot support ex ante disarmament of citizens until

the citizen proves that he or she is not dangerous.

Without intervention, other courts will continue to

over-extend ahistorical dangerousness traditions.

The decision below deepens at least two

divisions of authority. For one, it furthers a deepening

division concerning whether and when the Second

Amendment’s plain text covers the keeping and

bearing of arms in cases challenging licensing

schemes. For another, it worsens a divide concerning

whether firearms restrictions must be justified by text

and history notwithstanding dicta about issues not

relevant to the case.

The Massachusetts Supreme Judicial Court’s

decision warrants this Court’s review.

5

ARGUMENT

I.

The decision below conflicts with this

Court’s precedents and upholds the same

discretion struck down in Bruen.

The Massachusetts Supreme Judicial Court’s

decision upholding the Nonresident Carry License

Regime conflicts with this Court’s Second Amendment

precedents. The Nonresident Carry License Regime

vests licensing officials with unfettered discretion to

deny an application for a handgun license. Bruen, in

no uncertain terms, declared such ahistorical and

burdensome regimes unconstitutional.

A.

Bruen forbade discretionary carrylicense regimes.

After Bruen, states can no longer deploy

licensing regimes that “grant[] licensing officials

discretion to deny licenses based on a perceived lack

of need or suitability.” 597 U.S. 1, 13, 38; see also id.

at 79 (Kavanaugh, J., concurring). “[L]icensing laws,

under which authorities have discretion to deny

concealed-carry licenses even when the applicant

satisfies the statutory criteria, usually because the

applicant has not demonstrated cause or suitability

for the relevant license,” are historically unsupported

and unconstitutional. Id. at 14–15.

A hallmark of unconstitutionally discretionary

regimes is that they allow licensing officials to

undertake “appraisal of facts, the exercise of

judgment, and the formation of an opinion,” rather

than conditioning armed self-defense on the

satisfaction of objective requirements. Id. at 38 n.9

(citation omitted). As Justice Kavanaugh explained in

6

his concurrence, these “discretionary licensing

regimes” are unconstitutional because they “grant[]

open-ended discretion to licensing officials.” Id. at 79.

B.

The Nonresident Carry License

Regime defies Bruen by providing

licensing

officials

unfettered

discretion.

The text of the Commonwealth’s Nonresident

Carry License Regime provides its licensing officials

with the same unconstitutional discretion that Bruen

rejected. Under the Nonresident Carry License

Regime, a licensing official may deny an applicant as

unsuitable if “the applicant has exhibited or engaged

in behavior that suggests that, if issued a permit,

card or license, the applicant may create a risk to

public safety or a risk of danger to themselves or

others.” M.G.L. c. 140 §§ 121F(k), 131(d) (emphasis

added). Moreover, the statutory text requires no real

standard of proof, only that an “unsuitability”

determination “be based on reliable, articulable and

credible information” of the applicant’s past

“behavior.” Id. § 121F(k). This low evidentiary

standard, coupled with the vague suitability criteria,

empowers discretionary application. See Bruen, 597

U.S. at 38 n.9.

The Massachusetts Supreme Judicial Court

struck the prior regime that gave the licensing official

“unfettered discretion” to deny a temporary nonresident license “based on such terms and conditions

as [the] colonel may deem proper.” Commonwealth v.

Donnell, 495 Mass. 471, 481 (2025) (applying preBruen non-resident licensing regime) (quotations

omitted; alteration in original). That regime was held

7

constitutionally infirm because, “[t]o be consistent

with the Second Amendment, the Commonwealth’s

nonresident firearm licensing scheme cannot vest an

official with the discretion to deny a license to a

qualified applicant.” Id. at 483. The court made clear

that “[l]icensing schemes that confer on officials the

unfettered discretion to deny licenses even where the

applicant is otherwise qualified do not find support in

this nation’s history of firearm regulations and cannot

be upheld.” Id. at 481.

The Massachusetts Legislature recently

updated the text of the Nonresident Carry License

Regime to remove the explicit “may issue” phrasing,

but that update was, at best, form over function. The

current regime is an unconstitutional “may-issue”

regime cloaked in “shall-issue” language.

The Commonwealth’s regime continues to

authorize unconstitutional discretion under the guise

of updated text. The “suitability” language is

undefined, amorphous, and subject to the whims of the

licensing official. It empowers the chief of police, a

non-neutral decisionmaker, to make an “appraisal of

facts” about the applicant’s history, exercise judgment

about the applicant’s dangerousness, and form an

opinion about an applicant’s risk of danger. Bruen,

597 U.S. at 38 n.9. Each of these features renders the

Nonresident Carry License Regime indefinite and

unobjective—in other words, unconstitutionally

discretionary.

The fundamental constitutional defect of the

Nonresident Carry License Regime is that, as a

matter of statutory text, armed self-defense is

conditioned on a non-neutral arbiter’s judgment as to

8

the applicant’s dangerousness. It anticipatorily

disarms everybody, including all applicants who are

law-abiding citizens of good character. And, because

the decisionmaker is not a neutral third party, the

nonresident regime cannot be justified by historical

traditions requiring adjudication of an individual’s

dangerousness that this Court invoked in Rahimi, 602

U.S. at 693–700. This scheme empowers law

enforcement officials—based on the mere suggestion

that an applicant may be a risk—to deny Second

Amendment rights to those who have not been

adjudicated dangerous under any standard by a

neutral arbiter.2

Real-world accounts confirm the new

suitability standard is impermissibly discretionary.

One GOAL member, who is a police officer in

Massachusetts,3 proactively sought treatment for

mental illness in early 2025. The police chief

suspended his license to carry under the “suitability”

standard. The police officer successfully completed

treatment for his condition. He passed his fitness for

duty test, and two city-hired licensed psychologists

2 The Massachusetts Supreme Judicial Court refused to consider

Mr. Marquis’s as-applied challenge to the Nonresident Carry

License Regime. Although this refusal was error, Wilson v.

Hawaii, 145 S. Ct. 18, 20–21 (2024) (Thomas, J., statement

respecting the denial of certiorari), the outcome is no different

under a facial or as-applied challenge. Discretionary licensing

schemes are unconstitutional on their face and, when considering

the relevant facts and circumstances, the application of the

Nonresident Carry License Regime to Mr. Marquis is as

unconstitutional as it is to all law-abiding, responsible adult

citizens.

The licensing regimes for nonresidents and residents apply

identical suitability requirements. M.G.L. c. 140 § 131(d).

3

9

cleared him to return to duty as a police officer. But

the police chief denied reinstatement of his carry

permit. This active-duty police officer carries a

handgun for work but is prohibited from carrying for

self-defense when he is off the clock. Such an outcome

defies logic and, more importantly, the Second

Amendment, because it undeniably illustrates the

unfettered discretion of the licensing official.

A Massachusetts licensing official likewise

exercised unconstitutional discretion under the

current framework to deny an application on

suitability grounds based on the applicant’s drivingrelated misdemeanor plea from 25 years earlier. In

2000, the applicant was accused of driving while

ability impaired (“DWAI”). He took a plea deal that

resulted in a fine and suspended license for three

months to avoid incarceration. He had not had any

arrests or run-ins with the law prior to or after his

DWAI. Yet, in the view of the police colonel, the

applicant’s plea rendered him too dangerous to carry

a firearm for self-defense.

Massachusetts judicial decisions also show that

the discretionary “suitability” requirement has been

applied and upheld in questionable contexts. One

citizen had his license suspended after the licensing

official determined him “unsuitable,” based on

nothing more than improper storage of a firearm.

Dupras v. Deputy Chief of Police of Fall River, No.

2173CV00881, 2025 WL 1085407, at *3 (Mass. Super.

Feb. 12, 2025) (rejecting Second Amendment

challenge and affirming suspension). Another

affirmed an unsuitability determination based on

unsubstantiated criminal charges, even though the

underlying allegations had been recanted and the case

10

dismissed. See Dennis v. Chief of Police of Wareham,

105 Mass. App. Ct. 1134, 2025 WL 1693363 (2025).

In making suitability determinations, officials

are afforded broad discretion to deny applications

based on medical evidence unrelated to criminal or

dangerous conduct, “uncharged and untried criminal

conduct[,]” including unsubstantiated and unproven

allegations, and a decades-old plea for a misdemeanor

unrelated to firearms. Id. at *2. On the face of the text

and as applied in practice, carry licensing in

Massachusetts hangs on the unbridled discretion of a

police chief. That discretion—as Massachusetts case

law and on-the-ground experience make clear—has no

objective standard and may even be based on little or

even no evidence at all.

The Commonwealth’s discretionary licensing

framework violates the Second Amendment under

Bruen. This Court should grant certiorari.

C.

The decision below defies the

“dangerousness” teachings of Bruen

and Rahimi.

The Supreme Judicial Court held below that a

tradition of “restrict[ing] possession of firearms by

demonstrably dangerous persons” supports the

Commonwealth’s Nonresident Carry License Regime.

App.36. To get there, the court pointed to this Court’s

analysis in Rahimi. But the ex ante licensing precondition for all applicants at issue in this case is

determinatively distinct from the ex post

disarmament of an individual adjudicated dangerous

at issue in Rahimi. As Bruen and Rahimi

demonstrate, the surety and affray laws underlying

that dangerousness tradition cannot justify ex ante

11

disarmament

of

ordinary

citizens—like

Nonresident Carry License Regime does.

the

This Court held in Bruen that surety laws could

not justify generally applicable licensing schemes. 597

U.S. at 55. Unlike New York’s licensing scheme,

surety laws “were not bans on public carry” but,

rather, “targeted only those threatening to do harm.”

597 U.S. at 55 (emphasis in original). And Rahimi

explained that surety laws applied only to persons

“found to threaten the physical safety of another,” and

only after an individualized assessment of “cause

exist[ing] for the charge.” Rahimi, 602 U.S. at 697-98.

Those surety laws could not justify the licensing

scheme in Bruen, 597 U.S. at 55, but they helped

justify the individualized prohibition based on judicial

findings of domestic violence in Rahimi, 602 U.S. at

698. Bruen and Rahimi make clear that surety laws

cannot justify a “broad prohibitory regime” like the

Commonwealth’s Nonresident Carry License Regime.

See Rahimi, 602 U.S. at 700.

Bruen and Rahimi also addressed affray laws.

Bruen explained that affray laws barred “bearing

arms to terrorize,” rather than for ordinary selfdefense. 597 U.S. at 47. Rahimi likewise explained

that these laws “provided a mechanism for

punishing those who had menaced others with

firearms.” 602 U.S. at 697 (emphasis added). These

laws, Rahimi held, justified temporary disarmament

of a single individual determined by a neutral

third party to represent a credible threat of harm.

They do not justify pre-conditioning access to armed

self-defense by all ordinary citizens—or even a

discrete category such as non-residents traveling in

the state—on each individual proving that he is not

12

dangerous. Affray laws cannot justify the

Commonwealth’s scheme that “broadly restrict[s]

arms use by the public generally.” Id. at 698.

Under this Court’s precedents, surety and

affray laws can (at most) justify narrow ex post

prohibitions following individualized adjudications of

dangerousness. But the Commonwealth’s nonresident

carry-license regime is nothing of the sort: it is a broad

prohibitory regime, applying ex ante, that

categorically disarms every nonresident until they

prove that they are not dangerous. And, as explained

above, the right to carry is left to the unbounded

discretion of licensing officials. That scheme does not

pass constitutional muster.

As Judge Richardson of the Fourth Circuit

recently explained, licensing schemes cannot be

justified by dangerousness traditions because of “the

undeniable difference between the burdens on the

right imposed by ex ante disarmament of all citizens

and ex post punishment of a dangerous individual who

poses a threat.” Md. Shall Issue, Inc. v. Moore, 116

F.4th 211, 248 n.10 (4th Cir. 2024) (en banc)

(Richardson, J., dissenting).

To be sure, historical evidence shows that

reasonable regulations, like surety or affray laws, are

permissible in certain contexts. See Bruen, 597 U.S. at

5 (“the historical evidence from antebellum America

does demonstrate that the manner of public carry was

subject to reasonable regulation, but none of these

limitations on the right to bear arms operated to

prevent law-abiding citizens with ordinary selfdefense needs from carrying arms in public for that

purpose”). And, no doubt, a licensing scheme that does

13

not overburden or delay the applicant, or vest

discretion in the licensing official, may pass muster.

The Commonwealth’s nonresident regime, however,

crosses from the “reasonable regulation” threshold

into constitutional infirmity by functionally disarming

all nonresident travelers unless they first prove to the

colonel of the state police that they are “not

unsuitable.”

The Nonresident Carry License Regime

imposes gratuitous and greatly inconvenient burdens

on nonresidents who are legally entitled to carry in

their home jurisdictions. It onerously requires all

first-time applicants to pay a $100 fee, complete a

safety course from a state-certified instructor, appear

for an in-person appointment in Massachusetts, and

renew the license annually (with possible additional

in-person appearances that “may be required at the

discretion of the [Firearms Record Bureau]”). M.G.L.

c. 140, § 131F; see also Non-Resident Temporary

License to Carry Firearms, Mass. Dep’t of Crim. Just.

Info. Servs., Firearms Records Bureau (Revised Mar.

2024). This regime also is exceedingly timeconsuming: GOAL’s out-of-state members have

reported being forced to wait ten months after

applying to receive an in-person interview or waiting

six months or longer for the Commonwealth to process

their application, all for a temporary carry license that

only lasts for one year.

The regime’s perils are not far-fetched

hypotheticals. The facts of this case prove it. Ordinary

and law-abiding nonresident travelers who have not

obtained a Massachusetts license, like Mr. Marquis,

are subject to disarmament and incarceration under

the Nonresident Carry License Regime, despite their

14

lawful carry in their home state, merely because they

crossed state lines with a firearm.

There is no place in Second Amendment

jurisprudence for citizens to be stripped of their right

to bear arms—and subject to prosecution and

incarceration—because they failed to convince a

licensing official that they are suitable to exercise a

constitutional guarantee. Bruen put an end to preconditioning the exercise of Second Amendment rights

on the exercise of discretion by licensing officials.

II.

The decision below worsens multiple

divisions of authority.

A.

Any

regulation

that

even

temporarily “hinders” the bearing of

arms satisfies the plain-text inquiry.

The decision below implicates a division of

authority concerning whether and when the Second

Amendment’s plain text is satisfied in licensing

challenges. App.18 (“The type of regulated conduct at

issue falls within the ‘Second Amendment’s plain

text’”). The Tenth Circuit recently held that New

Mexico’s seven day waiting period for firearm

purchases triggered the Second Amendment’s plain

text, notwithstanding the state’s argument that

“minimal” and “temporary” burdens fall outside its

scope. Ortega v. Grisham, --- F.4th ----, 2025 WL

2394646, at *5–6 (10th Cir. Aug. 19, 2025). That

makes good sense. As the Third Circuit similarly

explained, the Second Amendment’s plain text

“forbids lesser violations that hinder a person’s ability

to hold on to his guns.” Frein v. Penn. State Police, 47

F.4th 247, 254 (3d Cir. 2022) (cleaned up). Although

Frein was not a licensing challenge, it demonstrates

15

that laws pre-conditioning access to armed selfdefense on satisfying licensing requirements triggers

the Second Amendment’s presumptive protections.

The en banc Fourth Circuit, however, recently

held the opposite. Md. Shall Issue, Inc., 116 F.4th at

229 (holding that Maryland’s handgun license

requirement does not implicate the plain text of the

Second Amendment). The Fifth Circuit has also held

that expanded background checks for prospective

firearm purchasers do not implicate the plain text of

the Second Amendment. See United States v. Peterson,

--- F.4th ----, 2025 WL 2462665, at *4–6 (5th Cir. Aug.

27, 2025) (holding that licensing regime with

extensive background-check requirements does not

implicate the plain text of the Second Amendment and

is a presumptively constitutional “shall-issue”

regime); see also McRorey v. Garland, 99 F.4th 831,

838 (5th Cir. 2024) (“The right to ‘keep and bear’ can

implicate the right to purchase. That is why the Court

prohibits shoehorning restrictions on purchase into

functional prohibitions on keeping. But such an

implication is not the same thing as being covered by

the plain text of the amendment.”).

This Court should grant certiorari here to

resolve this important and deepening split. Doing so

would aid lower courts and state courts struggling to

determine what the Second Amendment’s plain text

covers, as well as whether licensing restrictions

trigger the government’s historical-tradition burden.

16

B.

Firearms restrictions must be

justified by Bruen’s text and history

standard—not this Court’s dicta.

The Massachusetts Supreme Judicial Court

relied heavily on Bruen’s dicta about shall-issue carrylicense regimes. App.21–23 (discussing Bruen, 597

U.S. at 38 n.9). This also deepens a division of

authority concerning whether firearms restrictions

can be justified by anything other than text and

history. Compare, e.g., Md. Shall Issue, Inc., 116 F.4th

at 219–22 (holding that Bruen’s dicta rendered many

licensing regimes “presumptively constitutional”),

Peterson, 2025 WL 2462665, at *4–6 (similar), and

McRorey, 99 F.4th at 838–39 (similar), with United

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

(holding that applying Heller’s dicta “uncritically

would be at odds with Heller itself”). As the Tenth

Circuit recently explained, lower courts have taken

“dicta” from this Court’s Second Amendment cases

and, without conducting “the exacting historical

scrutiny” mandated by Bruen, have “carried [it]

forward and enmeshed [it] into Second Amendment

jurisprudence.” Ortega, 2025 WL 2394646, at *7.

That cannot be. Bruen emphatically declared

that the Second Amendment “demands a test rooted

in the [constitutional] text, as informed by history.”

597 U.S. at 19. There is no room in that analysis for

reflexive invocation of dicta about issues that were not

before the Court. That is exactly why Heller reserved

“expound[ing] upon the historical justifications” of

exceptions to the right for future cases, District of

Columbia v. Heller, 554 U.S. 570, 635 (2008), and why

Bruen relied on what “the historical record yield[ed]”

17

for issues like the so-called “sensitive places” doctrine.

597 U.S. at 30.

This Court has cautioned against taking “stray

comments and stretch[ing] them beyond their

context—all to justify an outcome inconsistent with

this Court’s reasoning and judgments,” Brown v.

Davenport, 596 U.S. 118, 141 (2022), and against

“read[ing] a footnote” as “establish[ing] the general

rule” for a case. United States ex rel. Schutte v.

SuperValu Inc., 598 U.S. 739, 755 n.6 (2023). Yet

lower courts continue to “replace[] the Constitution’s

text with a new set of judge-made rules,” elevating

dicta over the text and history analysis. NLRB v. Noel

Canning, 573 U.S. 513, 614 (2014) (Scalia, J.,

concurring in the judgment). That practice is what

necessitated Heller and Bruen in the first place. This

Court should grant certiorari and make clear that the

text-and-history standard does not yield to dicta about

issues not relevant to the case.

III.

This case presents urgent questions of

exceptional

importance

requiring

correction of the decision below now.

The Court should grant certiorari because the

question and issues presented here are exceptionally

important. As demonstrated in Mr. Marquis’s Petition

and above, courts continue to find creative ways to

defy Bruen. There is no reason to believe that this will

stop without intervention by this Court.

The Commonwealth’s updated suitability

requirement continues to provide licensing officials

with unconstitutional discretion in circumvention of

Bruen and the Constitution itself. Mr. Marquis has

18

already been deprived of his right to bear arms and

will be deprived of his freedom if he is convicted and

incarcerated. The Commonwealth’s Nonresident

Carry License Regime burdens every nonresident

wishing to travel through the Commonwealth while

exercising their constitutionally guaranteed right to

bear arms. Granting certiorari and correcting the

decision below is urgently necessary.

CONCLUSION

For the foregoing reasons, amicus respectfully

requests this Court grant Mr. Marquis’s Petition for

Writ of Certiorari and reverse the decision below.

Respectfully submitted,

JOHN PARKER SWEENEY

Counsel of Record

JAMES W. PORTER, III

TIMOTHY R. WILLMAN

BRADLEY ARANT BOULT CUMMINGS LLP

1900 K STREET N.W., SUITE 800

WASHINGTON, DC 20006

(202) 719-8216

jsweeney@bradley.com

W. CHADWICK LAMAR, JR.

BRADLEY ARANT BOULT CUMMINGS, LLP

1819 FIFTH AVENUE NORTH

BIRMINGHAM, AL 35203

(205) 521-8533

Counsel for Amicus Curiae