As has been discussed on the blog in recent months, many questions about Bruen’s application and scope remain unanswered. United States v. Rahimi represents the first opportunity for the Supreme Court to clarify the details of how Bruen’s test should be applied and to begin sorting out the disparate outcomes that have already emerged at the district and appellate levels in post-Bruen Second Amendment cases. As the Supreme Court prepares to hear oral argument tomorrow, November 7, the Justices have been busy with a lot of reading.
A total of 60 amicus briefs were filed in the case: 37 in support of the government, 22 in support of Zackey Rahimi, and 1 in support of neither party. Among the cases set for argument in October and November, these 60 briefs make Rahimi the clear leader in terms of amici involvement. Still, both Heller and Bruen saw more amicus briefs filed (68 and 84, respectively), so it seems safe to say that Second Amendment cases tend to attract many “friend of the Court” briefs. Other high-profile cases before the Court this term have seen around the same number of filed amicus briefs. For example, in Loper Bright Enterprises v. Raimondo—where the Court could decide whether to overrule the Chevron framework for administrative deference—62 amicus briefs were filed between July and September (the Court will hear oral argument in Loper Bright in January).
Very few amici (only 4) ask the Court to overrule Bruen, leaving the vast majority of the briefs to work within Bruen’s history-focused framework. Accordingly, briefs on all sides of the issue devote a great deal of attention to historical tradition. Generally speaking, briefs in support of the government suggest that there are historical analogues for § 922(g)(8), while briefs for Rahimi suggest that no such analogues exist (consistent with the Fifth Circuit’s decision). However, many amici also address a specific piece of dicta in Bruen suggesting that “unprecedented societal concerns” may trigger a “nuanced approach.” Among the 37 briefs in favor of the government, 8 argue that the issue of domestic violence is an “unprecedented concern” that triggers this “nuanced approach.”
Beyond the historical tradition arguments, many amici extensively address a different issue: due process. 35 briefs touch on due process in some way—briefs in support of the government tend to emphasize that protective orders only qualify for § 922(g)(8)’s firearm prohibition when issued after notice and a hearing; briefs in support of Rahimi focus on alleged shortcomings such as the fact that § 922(g)(8) covers orders issued without a credible-threat finding and without resolution of disputed facts. Domestic violence restraining orders are creatures of state law, and unsurprisingly vary greatly with regard to standards of proof, procedural protections, and length of orders. Accordingly, 24 amicus briefs discuss the details of state DVRO laws or Rahimi’s potential impact on state DVRO-based disarmament statutes.
While not as frequently addressed in the amicus briefing, arguments surrounding the Commerce Clause are also worth keeping an eye on. Only 6 amicus briefs mention the Commerce Clause, 4 of which were filed in support of Rahimi. The law under which Rahimi was convicted, § 922(g)(8), relies on a jurisdictional hook—a mechanism used by Congress to ensure compliance with the Commerce Clause—requiring that the gun or ammunition possessed by the defendant was transported in or affected interstate commerce. The argument that this jurisdictional hook is insufficient for the federal government to regulate under the Commerce Clause is unlikely to win the day, but some justices (notably Justice Thomas) have indicated a strong desire to narrow the scope of the federal Commerce Clause power in a way that might significantly curtail § 922(g) as whole.
As one might expect with such a high volume of briefs, there was ample variation. Notably, some of these briefs touched on issues such as reproductive rights, tribal gun law, and interesting intersections between religion and firearms. Other amici focused extensively on one particular issue in the case, including Congress’s enumerated powers, DVRO laws across the country, and telling the stories of victims of gun violence at the hands of individuals who exhibited patterns of domestic violence.
Finally, the Duke Center for Firearms Law was widely cited throughout the amicus briefing. There were 42 citations to scholarship authored by Center leadership and affiliated scholars. The Center’s Second Thoughts Blog was also cited 5 times.