Stupid Arguments before the Supreme Court

The Rahimi case has brought out all the normal infringers, along with a number of lesser known groups and people. They filed numerous amicus curiae briefs. I had intended to do a brief look through them all. Nope, no, forget it. Too much pain. What follows is a sampling of the first few, along with a couple of others I found interesting. Most of the text came from the table of contents. Take it for what you will.

(2300 words, mostly theirs)

If you want to go read these yourself, they are all on the Supreme Court’s webpage under the Rahimi case.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-915.html

American’s Against Gun Violence

1. Bruen’s “text and history” test, applied in Rahimi, relied on two deeply flawed assumptions
   1. Both Bruen and Heller are based on the false premise that the text and history of the Second Amendment established an individual right to own a gun
      1. The “well regulated militia” clause refers to the right to possess and use firearms in connection with militia service
      2. The “keep and bear arms” clause refers to a right to possess firearms if needed for and in relation to military activities
      3. The Second Amendment did not codify any right inherited by English ancestors because no such individual right to own firearms ever existed
      4. The drafters of the Second Amendment knowingly did not include language to provide for an individual right to possess firearms for self-defense
      5. Heller and Bruen improperly departed from this Court’s interpretation of the Second Amendment
   2. Bruen’s framework is also improper because it compels a foregone conclusion and perpetuates the myth that gun ownership is important for individuals’ safety and self-defense
2. Heller and its progeny “threaten the breakdown of law and order” as Justice Breyer warned in the Heller dissent
   1. Gun related deaths have been significantly increasing since Heller
   2. Gun ownership conveys a greater risk than benefit
   3. Gun related deaths in the United States far exceed those of any other high-income country

American Medical Association

1. Amici’s physician members have firsthand knowledge of the deadly consequences of allowing domestic abusers to have access to firearms
2. Preventing Abusers who are subject to domestic violence restraining orders from possessing firearms saves lives
3. Section 922(g)(8) complies with the Second Amendment

The Domestic Violence Legal Empowerment and Appeals Project

1. Domestic Violence with Firearms is a Public Health Crisis for Children
   1. Children are Frequently Murdered by Abusers with Guns
   2. Children are Traumatized When a Parent is Murdered by an Intimate Partner with a Gun
   3. Non-Fatal Firearm Abuse Also Causes Children Severe Trauma
2. Limiting Domestic Violence Offenders’ Access to Firearms Protects Children

Prosecutor and Law Enforcement Associations and Office

1. Armed Domestic Violence Perpetrators Are a Major Threat to Public Safety
   1. Armed Perpetrators Pose a Serious Threat to Intimate Partner Victims, Their Families, and Third Parties.
   2. Law Enforcement Officers Face Especially Serious Risks When Responding to Domestic Violence Calls
2. Once Domestic Violence Perpetrators Are Subject to a Protective Order, Restricting Their Access to Firearms Is Essential to Avoid Further Violence
   1. Domestic Violence Perpetrators Are Likely to Escalate Violence After Victims Seek Protective Orders
   2. Civil Protective Orders Provide an Appropriate Basis for Restricting a Perpetrator’s Access to Firearms
   3. Barring Use of Protective Orders to Restrict Firearms Access Would Undermine the Life-Saving National Instant Background Check System
3. Civil Protective Orders Are an Essential Complement to Criminal Prosecution of Domestic Violence
   1. Prosecutors Rely on Civil Protective Orders to Provide Timely Protection for Domestic Violence Victims
   2. Civil Protective Orders Can Help Prosecutors Persuade Victims to Engage with the Criminal Process
   3. Protective Orders That Provide the Basis for Restricting a Perpetrator’s Access to Firearms Reduce the Likelihood of Witness Intimidation in Criminal Prosecutions of Domestic Violence

Everytown for Gun Safety

1. Second Amendment Historical Analysis Should Focus on the Reconstruction Era Rather than the Founding Era
   1. For Cases Challenging The Constitutionality Of A State Law, Focusing On 1868 Is Necessary To Answer The Originalist Question
   2. Because The Right As Applied Through The Fourteenth Amendment Is Invested With 1868 Meaning, Focusing On 1868 In Federal Challenges Is In Keeping With Bruen’s Commitment To Equivalent State and Federal Standards
2. Even if 1791 Were The Appropriate Lodestar of Second Amendment Meaning In Federal Challenges, Later Evidence Continues to be Relevant in Elucidating the 1791 Public Understanding

Houston Area Women’s Center

1. In Domestic Violence Cases, Defense of the Home Requires Protection from Firearms
   1. Women face higher risks at home when their abuser possesses a gun
   2. Children face higher risks at home when their abuser possesses a gun
   3. The public faces higher risks when abusers possess a gun
   4. Firearm restrictions for persons under domestic violence protective orders are essential to public safety
2. Historical Analogues Need Not be Perfect to Uphold Modern Safety Protections
   1. Dangerous persons may be disarmed
   2. Bruen allows room to uphold modern safety protections

Professor Mary Anne Franks

1. This Court’s Approach In Dobbs Establishes That There Is No Text, History, Or Tradition that Supports An Individual Constitutional Right To Gun Possession
   1. Neither the text of the Constitution, nor history and tradition, support an individual right to gun possession
      1. The Second Amendment makes no reference to an individual right to bear arms
      2. The Constitution provides no other source for an individual right to possess arms supported by history and tradition
         1. There is no support for an individual right to possess firearms elsewhere in the text of the Constitution
         2. There is no support for a constitutional individual right to possess firearms in American history or tradition
         3. There is no longstanding support for a constitutional individual right to possess firearms in legal scholarship
   2. Gun regulation is an issue of profound moral and social importance that the Constitution demands be left to the people and their elected representatives to decide
2. The Principles Of Stare Decisis That This Court Relied Upon In Dobbs Favor The Court Correcting The Course Of Its Second Amendment Jurisprudence
3. 18 U.S.C. 922(g)(8) Is Constitutional Regardless Of Whether Heller And Bruen Remain Good Law, But Efforts to Enlist The Constitution In The Destruction of Human Life Will Continue Until They Are Overruled

United States Conference of Catholic Bishops

1. Consistency with Tradition Is a Distinct Inquiry From Pure Historical Comparison
   1. Bruen Recognized A Tradition Test
   2. A Modern Regulation May Be Consistent With Tradition If It Adheres To Traditional Principles
2. The Tradition Supports Laws Protecting Human Life And Dignity, Particularly Of Vulnerable Persons
   1. Violence Against Intimate Partners Offends The Dignity Of The Person And Undermines The Basic Institution Of Society
   2. Families Enjoy Some Autonomy From State Interference In Service Of The Common Good, But Domestic Violence Cries Out For State Intervention
3. The Tradition Of Firearm Regulation In The United States Permits Disarming Dangerous Individuals To Protect The Vulnerable
   1. Protecting The Innocent Is A Proper Consideration In Firearm Regulation
   2. Founding Era Firearm Regulations Sought To Protect The Vulnerable
   3. The Regulation Of Firearms To Prevent Domestic Violence Is Consistent With The Second Amendment’s Traditional Understanding
   4. Section 922(g)(8) Is Constitutional Under The Court’s Tradition Test
4. The Fifth Circuit’s Analysis Confused History For Tradition And Made Questionable Policy Assumptions
   1. The Opinions Below Incorrectly Looked For A Historical Twin Instead Of Identifying Traditional Principles
   2. The Concurrence Below Also Made Flawed Assumptions Regarding Restraining Orders

Citizens Crime Commission of New York City

1. Armed Domestic Violence Offenders Represent a Unique Risk to Law Enforcement
2. Perpetrators of Domestic Violence Are Not Ordinary, Law-abiding Citizens: They Pose an Ongoing Threat to Their Victims
3. Domestic Abusers Are More Likely to Commit Mass Shootings and Therefore Pose a Grave Danger to Broader Society

Skipping

• Texas Advocacy Project
• Giffords Law Center to Prevent Gun Violence
• AEquitas
• March For Our Lives Action Fund
• California Governor Gavin Newsom
• Prosecutors Against Gun Violence
• Global Action On Gun Violence
• Former State Chief Justices and Chief Judges
• American Civil Liberties Union Foundation
• Public-Health Researchers and Lawyers
• Gun Violence and Domestic Violence Prevention Groups
• Senator Amy Klobuchar, Representative Brian Fitzpatrick, and Representative Debbie Dingell
• Senator Richard Blumenthal, Representative Mike Thompson, And 169 Other U.S. Senators And Representatives
• National League of Cities
• Illinois
• DC Coalition Against Domestic Violence
• Legal Aid Chicago
• New York County Lawyers Association
• Tarrant County Criminal District Attorney
• Educators, Practitioners
• National Indigenous Women’s Resource Center
• City of New York ⁣
• California Legislative Women’s Caucus
• 97Percent
• Patrick J. Charles (We’ve seen him before)

Center for Reproductive Rights

1. A National Maternal Health Crisis Is Threatening The Lives And Safety Of People During Pregnancy And Postpartum, And Intimate Partner Gun Violence Is A Major Contributor.
   1. Homicide Is a Leading Cause of Death for Pregnant and Postpartum People, and the Majority of Those Deaths Involve Firearms
   2. Preventing Intimate Partner Gun Violence is One Component of Addressing the Broader Maternal and Reproductive Health Crisis in the United States
2. Judicial Consideration Of Our Nation’s History And Tradition Must Not Deny Pregnant People Full Constitutional Protection
   1. The Fifth Circuit’s Approach to History and Tradition Systematically Denies Pregnant People Protections Against Violence.
   2. The Fifth Circuit’s Decision Compounds Past and Current Denial of Full Constitutional Protection for Pregnant People
   3. Binding the Law to Historical Legal Treatment of Reproductive and Private Life Threatens Pregnant Peoples’ Health, Lives, and Safety
3. This Court Should Reject The Fifth Circuit’s Approach To History And Tradition As Contrary To Core Constitutional Principles, Including Autonomy And Safety In Private Life

Professors of History and Law

1. The American History And Tradition Of Restricting Gun Possession Of Dangerous Individuals
   1. The Common Law Roots Of The American Tradition Of Disarming Dangerous People
   2. Founding Era Disarmament Of Dangerous Individuals
   3. Late Eighteenth-, Nineteenth-, And Twentieth-Century Firearm Restrictions Premised On Dangerousness
      1. Disarmament laws
      2. Offensive-use prohibitions against causing terror
      3. Surety laws
      4. Licensing laws
2. The Evolving American History Of Regulating Domestic Violence And Firearms
   1. Bruen’s Methodology For Analyzing The Historical Regulation Of Societal Problems
   2. Founding Era Regulation Of Domestic Violence
   3. Section 922(g)(8) And The Evolution Of Domestic Violence Regulation

Second Amendment Law Scholars