No. 18-280

IN THE

pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
NEW YORK STATE & RIFLE PISTOL ASSOCIATION, INC.,
ROMOLO COLANTONE, EFRAIN ALVAREZ, AND
JOSE ANTHONY IRIZARRY,
Petitioners,
v.
THE CITY OF NEW YORK AND THE NEW YORK CITY
POLICE DEPARTMENT-LICENSE DIVISION,
Respondents.
On Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
BRIEF OF 139 MEMBERS OF THE UNITED
STATES HOUSE OF REPRESENTATIVES AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
LEE R. CRAIN
ERICA SOLLAZZO PAYNE
ALEXANDRA PERLOFF-GILES
TREVOR BONDY GOPNIK
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166

AVI WEITZMAN
Counsel of Record
REED BRODSKY
AKIVA SHAPIRO
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
aweitzman@gibsondunn.com

Counsel for Amici Curiae

 i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................... 1
ARGUMENT ............................................................... 6
I.

Intermediate Scrutiny Provides
Legislatures Needed Flexibility To
Craft Policy Judgments And
Sufficiently Protects Individual
Liberties. ......................................................... 6
A. Intermediate Scrutiny Provides
Legislatures Needed Flexibility To
Adopt Reasonable Policy
Judgments. ............................................... 8
B. Intermediate Scrutiny Adequately
Protects Second Amendment
Rights. .................................................... 13
C. The Second Circuit Properly
Determined That The New York
City Rule Burdened Only NonCore Rights, Rendering It Subject
To Intermediate Scrutiny. ..................... 17

II. Application Of Strict Scrutiny Or
Petitioners’ Purely Historical Test
Would Unduly Limit The Ability Of
Legislatures Around The Country To
Preserve Public Safety And Limit Gun
Violence. ........................................................ 21
A. This Court Should Not Apply
Strict Scrutiny To Laws And
Regulations That Do Not Interfere
With Core Second Amendment
Rights. .................................................... 21

 ii
B. The Proposed “Historical”
Approach Is Deeply Flawed. .................. 26
CONCLUSION .......................................................... 31
APPENDIX ................................................................ 1a

 iii
TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018) .......................................... 24
Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
135 S. Ct. 2652 (2015) .......................................... 20
Ass’n of N.J. Rifle & Pistol Clubs, Inc. v.
Att’y Gen. N.J.,
910 F.3d 106 (3d Cir. 2018) ................................... 7
Bd. of Educ. of the Westside Cmty. Schs.
v. Mergens,
496 U.S. 226 (1990) ................................................ 9
Bd. of Trs. of the State Univ. of N.Y. v.
Fox,
492 U.S. 469 (1989) ................................................ 6
Binderup v. Att’y Gen. U.S.,
836 F.3d 336 (3d Cir. 2016) ........................... 14, 16
Brown v. Entm’t Merch. Ass’n,
564 U.S. 786 (2011) .................................. 22, 24, 27
Citizens United v. Fed. Election
Comm’n,
558 U.S. 310 (2010) .............................................. 22
City of Cleburne v. Cleburne Living Ctr.,
Inc.,
473 U.S. 432 (1985) ........................................ 25, 26

 iv
City of Los Angeles v. Alameda Books,
Inc.,
535 U.S. 425 (2002) .............................................. 17
Clark v. Jeter,
486 U.S. 456 (1988) ...................................... 2, 7, 15
Craig v. Boren,
429 U.S. 190 (1976) .............................................. 15
District of Columbia v. Heller,
554 U.S. 570 (2008) ...................................... passim
Edmond v. Goldsmith,
183 F.3d 659 (7th Cir. 1999) .................................. 4
Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011) ........................ passim
Heller v. District of Columbia,
801 F.3d 264 (D.C. Cir. 2015) .................. 14, 16, 19
Hill v. Colorado,
530 U.S. 703 (2000) .............................................. 18
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) ................................ 24
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................. 28
McClesky v. Kemp,
481 U.S. 279 (1987) ................................................ 9
McDonald v. City of Chicago,
561 U.S. 742 (2010) ........................................ 13, 26

 v
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) .............................................. 28
N.Y. State Rifle & Pistol Ass’n v. City of
New York,
883 F.3d 45 (2d Cir. 2018) ............................. 18, 19
N.Y. State Rifle & Pistol Ass’n v.
Cuomo,
804 F.3d 242 (2d Cir. 2015) ....................... 7, 14, 19
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ................................ 8, 26, 27
Oregon v. Ice,
555 U.S. 160 (2009) .............................................. 20
Peruta v. Cty. of San Diego,
824 F.3d 919 (9th Cir. 2016) ................................ 24
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ................................................ 8
Rostker v. Goldberg,
453 U.S. 57 (1981) .................................................. 9
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) .......................................... 15
Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) .............................................. 22
Terminiello v. Chicago,
337 U.S. 1 (1949) .................................................... 5

 vi
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ................................................ 7
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) .................................... 9, 10, 19
Turner v. Safley,
482 U.S. 78 (1987) ................................................ 24
Tyler v. Hillsdale Cty. Sheriff’s Dep’t,
837 F.3d 678 (6th Cir. 2016) .......................... 10, 14
United States v. Alvarez,
567 U.S. 709 (2012) .............................................. 22
United States v. Carter,
669 F.3d 411 (4th Cir. 2012) ................................ 15
United States v. Chester,
628 F.3d 673 (4th Cir. 2010) ................................ 15
United States v. Glisson,
460 F. App’x 259 (4th Cir. 2012) ......................... 15
United States v. Grace,
461 U.S. 171 (1983) .............................................. 15
United States v. Jones,
565 U.S. 400 (2012) ........................................ 28, 29
United States v. Playboy Entm’t Grp.,
Inc.,
529 U.S. 803 (2000) .............................................. 21
United States v. Virginia,
518 U.S. 515 (1996) ................................................ 6

 vii
Walters v. Nat’l Ass’n of Radiation
Survivors,
473 U.S. 305 (1985) .............................................. 10
Weinberger v. Salfi,
422 U.S. 749 (1975) .............................................. 10
Constitutional Provisions
U.S. Const. amend. I ................................................. 23
U.S. Const. amend. II ................................ 4, 22, 23, 29
U.S. Const. amend. IV ............................................... 29
Statutes and Legislation
18 U.S.C. § 922 .................................................... 11, 14
18 U.S.C. § 925 .......................................................... 12
430 Ill. Comp. Stat. 66/65 (2019) .............................. 11
720 Ill. Comp. Stat. 5/24-1 (2017) ............................. 11
Cal. Penal Code § 646.9............................................. 11
Cal. Penal Code § 12126............................................ 30
Cal. Penal Code § 29805............................................ 11
Cal. S.B. 1100 (2018) ................................................. 11
Colo. Rev. Stat. § 18-1-1001 (2018) ........................... 11
Conn. Gen. Stat. § 29-37g (2019) .............................. 12
Conn. H.B. 5542 (2018) ............................................. 12

 viii
Del. H.B. 300 (2018) .................................................. 12
Fla. S.B. 7026 (2018) ........................................... 11, 12
Haw. H.B. 459 (2017) ................................................ 12
Haw. S.B. 2046 (2018) ............................................... 12
Ky. Rev. Stat. Ann. § 237.110 (2017) ........................ 11
Md. S.B. 707 (2018) ................................................... 12
Mich. Comp. Laws § 28.425o (2017) ......................... 11
Mich. Comp. Laws § 750.234d (2017) ....................... 11
N.J. A.B. 2761 (2018) ................................................ 12
N.J. S.B. 3477 (2017) ................................................. 12
N.J. Stat. Ann. § 2C:39-9 .......................................... 12
N.J. Stat. Ann. § 2C:39-9 .......................................... 12
R.I. S.B. 2292/H.B. 7075 (2018) ................................ 12
Or. Rev. Stat. § 166.435 ............................................ 12
S.C. Code Ann. § 16-23-420 (2019) ........................... 11
Tenn. Code Ann. § 39-13-111 (2018)......................... 11
Vt. S.B. 55 (2019)................................................. 11, 12
Wash. H.B. 1501 (2017) ............................................ 12
Wash. Initiative 1639 (2018)..................................... 11

 ix
Wash. S.B. 5992 (2018) ............................................. 12
Wis. Stat. § 175.60 (2019) ......................................... 11
Regulations
83 Fed. Reg. 66,514 (Dec. 26, 2018) .......................... 12
Other Authorities
Adam Winkler, Scrutinizing the Second
Amendment,
105 Mich. L. Rev. 683 (2007) ................... 23, 24, 25
Archibald Cox, The Role of Congress in
Constitutional Determinations,
40 U. Cin. L. Rev. 199 (1971)................................. 9
Cass R. Sunstein, The Supreme Court,
1995 Term—Foreword: Leaving
Things Undecided,
110 Harv. L. Rev. 4 (1996) ................................... 25
2 Chester James Antieau & William J.
Rich, Modern Constitutional Law (2d
ed. 1997) ............................................................... 22
Erwin Chemerinsky, Constitutional
Law: Principles and Policies (5th ed.
2015) ......................................................... 17, 21, 22
Erwin Chemerinsky, History, Tradition,
the Supreme Court, and the First
Amendment,
44 Hastings L.J. 901 (1993) ................................. 27

 x
Giffords Law Center to Prevent Gun
Violence, Background Check
Procedures: State by State,
https://lawcenter.giffords.org/gunlaws/state-law/50-statesummaries/background-checkprocedures-state-by-state .................................... 12
Giffords Law Center to Prevent Gun
Violence, Categories of Prohibited
People, https://lawcenter.giffords.
org/gun-laws/policy-areas/who-canhave-a-gun/categories-of-prohibitedpeople .................................................................... 11
H.R. 3265, 116th Cong. (2019) .................................. 29
Jed Rubenfeld, The AntiAntidiscrimination Agenda,
111 Yale L.J. 1141 (2002) .................................... 22
Jed Rubenfeld, The Paradigm-Case
Method,
115 Yale L.J. 1977 (2006) ................................ 6, 25
John Hart Ely, Democracy and Distrust
(1980) ................................................................ 7, 25
Joseph Blocher, Firearm Localism,
123 Yale L.J. 82 (2013) .......................................... 2
Kyle Hopkins, Lawless, ProPublica
(May 16, 2019),
https://features.propublica.org/localreporting-network-alaska/alaskasexual-violence-village-police .............................. 11

 xi
Saul Cornell & Justin Florence, The
Right to Bear Arms in the Era of the
Fourteenth Amendment: Gun Rights
or Gun Regulation?,
50 Santa Clara L. Rev. 1043 (2010) .................... 23
Saul Cornell, The Right to Carry
Firearms Outside of the Home:
Separating Historical Myths from
Historical Realities,
39 Fordham Urb. L.J. 1695 (2012) ........................ 2

 INTEREST OF AMICI CURIAE
Amici curiae are 139 Members of the United
States House of Representatives who believe it is essential that the judicial branch affords appropriate
deference to legislative judgments regarding gun
safety legislation. As Members of the United States
Congress, amici must often make difficult legislative
judgments based on conflicting social science data and
in the face of constituents’ competing interests and
policy preferences. Amici are members of the most
democratically accountable branch of the federal government and thus have a particular interest in encouraging courts to grant flexibility to legislatures
making these difficult legislative judgments. Given
their interest in preserving the legislatures’ flexibility
to enact meaningful gun safety legislation, amici submit this brief to provide important context regarding
how the Court’s interpretation of the Second Amendment will affect the work of amici and other legislative
bodies around the country.
The names of individual amici are listed in the Appendix.1
INTRODUCTION AND SUMMARY OF
ARGUMENT
In District of Columbia v. Heller, 554 U.S. 570
(2008), this Court explained that the “core protection”
of the Second Amendment is the “right of law-abiding,
1

Pursuant to Supreme Court Rule 37.6, counsel for amici curiae states that no counsel for a party authored this brief in whole
or in part, and no party or counsel for a party, or any other person
other than amici curiae or its counsel, made a monetary contribution intended to fund the preparation or submission of this
brief. All parties have consented in writing to the filing of this
brief.

 2
responsible citizens to use arms in defense of hearth
and home.” Id. at 634-35. While our nation’s legislatures have long respected the right of law-abiding citizens to keep arms in the home for responsible selfdefense, they have also carefully regulated arms in
public—requiring, for example, a showing of good
cause to carry a gun publicly—since the early 1800s.
See, e.g., Saul Cornell, The Right to Carry Firearms
Outside of the Home: Separating Historical Myths
from Historical Realities, 39 Fordham Urb. L.J. 1695,
1719-25 (2012) (describing restrictive public carry
laws passed by numerous states between 1835 and
1878); see also Joseph Blocher, Firearm Localism, 123
Yale L.J. 82, 111-21 (2013) (describing history of urban gun regulations). These and other regulations are
in recognition of the fact that the core Second Amendment right does not extend to carrying weapons in
public.
When laws implicate constitutional provisions but
do not substantially burden their core guarantees,
courts generally apply intermediate scrutiny to assess
the constitutionality of those laws, whether in the context of the First Amendment, the Second Amendment,
or the Equal Protection Clause. That test requires the
challenged law to be “substantially related to an important governmental objective” to pass constitutional
muster. Clark v. Jeter, 486 U.S. 456, 461 (1988). Applying intermediate scrutiny review, courts more
fairly balance the protection of constitutional liberties
with the legislatures’ right and obligation to legislate,
including in response to modern threats to public
safety. But intermediate scrutiny is not a rubber
stamp for gun safety (or any other) legislation: When
governments cannot establish a “substantial relation”

 3
between a particular regulation and important governmental interests, courts do not hesitate to strike
down the regulation at issue. See, e.g., Ezell v. City of
Chicago, 651 F.3d 684, 708 (7th Cir. 2011).
This Court should adopt this well-established
framework and expressly hold that laws that do not
substantially burden the core Second Amendment
right, as delineated in Heller, are subject to intermediate scrutiny. Particularly in the life-or-death context of gun safety legislation, intermediate scrutiny is
the right test. It allows legislatures to make policy
judgments based on imperfect information that may
well save lives, yet is sufficiently rigorous to ensure
that individual liberty cannot be cast aside without
sufficient reason.
If this Court reaches the question of the constitutionality of the former New York City premises license
rule at issue in this case (the “Rule”),2 the Court ought
to determine that the Rule burdened only non-core
Second Amendment rights, is thus subject to intermediate scrutiny, and satisfies that test, as the Second
Circuit correctly held. But even more importantly,
and regardless of how this Court applies the rule it
announces to the facts of this case, it is critical for the
sake of legislative flexibility—as well as to provide
guidance to the courts below—that this Court expressly confirm that regulations that burden core

2

After this Court granted certiorari, the City of New York
amended the challenged Rule and the State of New York passed
legislation that would in any event preempt the challenged Rule.
See Resp. Br. at 8-9, 13-16; Suggestion of Mootness at 5-7, N.Y.
State Rifle & Pistol Ass’n v. City of New York, No. 18-280 (July
22, 2019).

 4
rights should be strictly scrutinized while regulations
that burden non-core Second Amendment rights
should be evaluated under intermediate scrutiny.
For their part, Petitioners seek to revamp the dichotomy between core and non-core rights that Heller
itself invoked and that the Courts of Appeals have
predominantly applied in the last decade. Specifically, Petitioners ask this Court to use this now apparently moot case to cast aside intermediate scrutiny
in assessing gun safety legislation that touches on
non-core Second Amendment rights. Rather, Petitioners ask this Court to apply strict—not intermediate—
scrutiny to all gun safety legislation that affects even
rights peripheral to the core Second Amendment
guarantee, which test would require the government
to show that a challenged gun safety regulation is
“necessary” to accomplish a “compelling” governmental purpose and is the “least restrictive” regulation
possible. Alternatively, Petitioners would have this
Court limit legislatures nationwide to enacting gun
safety legislation solely if that legislation reflects an
analogous regulation that existed in 1789.
Both of Petitioners’ tests would risk the invalidation of broad swaths of common-sense gun safety legislation and would tie the hands of legislatures
throughout the nation—a result the Founders could
never have envisioned. Indeed, in adopting the Second Amendment, the Founders recognized the legislative right to promote a “well regulated militia,” which
is “necessary to the security of a free State.” U.S.
Const. amend. II (emphasis added). If anything,
where legislation carries lethal implications, legislatures deserve more flexibility and deference, not less.
“The Constitution is not a suicide pact.” Edmond v.

 5
Goldsmith, 183 F.3d 659, 663 (7th Cir. 1999) (Posner,
C.J.). This Court should not adopt an analytical
framework that makes it one. See Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting)
(rejecting that “all local attempts to maintain order
are [unconstitutional] impairments of the liberty of
the citizen”).
Amici, as Members of Congress, categorically reject Petitioners’ attempts to ratchet up the scrutiny
courts apply to gun safety regulations. Amici know
first-hand the pain that gun violence has inflicted
upon their communities back home and throughout
our nation. From Columbine to Sandy Hook to Tree
of Life Synagogue and—more recently—to the mass
shootings in Dayton and El Paso earlier this month,
amici have mourned with their friends and neighbors
back home when tragedy struck. They have also had
the experience of fighting for gun safety regulations—
including those that enjoy widespread public support—in Washington. That battle is difficult enough:
Indeed, if the murder of 20 Sandy Hook elementary
school students and six educators in Newtown, Connecticut could not galvanize sufficient support for
common-sense safety solutions (in that case, a universal background check law), it is hard to imagine what
can.
This Court should not make enacting such legislation even harder than it already is today. The Constitution does not require courts to strictly scrutinize any
and all regulation that touches upon rights peripheral
to the core Second Amendment guarantee. And the
Constitution does not limit legislatures—whether national, state, or local—to exercising enumerated and
reserved powers only in ways analogous to regulation

 6
that existed in the eighteenth century. Legislatures
should be free to make judgments based on imperfect
and conflicting data—particularly when those judgments reflect attempts to solve life-or-death problems.
Accordingly, amici respectfully submit that, if this
Court reaches the constitutional merits of this case, it
should affirm that intermediate scrutiny is the proper
standard of judicial review to apply to gun safety legislation that affects non-core Second Amendment
rights and that strict scrutiny applies only to those
regulations that burden the Second Amendment’s
core.
ARGUMENT
I.

INTERMEDIATE SCRUTINY PROVIDES LEGISLATURES NEEDED FLEXIBILITY TO CRAFT POLICY
JUDGMENTS AND SUFFICIENTLY PROTECTS INDIVIDUAL LIBERTIES.

The rights the Constitution entrenches have both
core guarantees and peripheries. See, e.g., Bd. of Trs.
of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477
(1989); see also United States v. Virginia, 518 U.S.
515, 533 (1996). The distinction between core and
non-core rights reflects the fact that our Constitution’s Framers were particularly concerned with certain paradigm cases of government malfeasance—for
example, content-based restrictions on political
speech or race-based state discrimination. Laws that
raise the specter of these paradigm evils—evils that
have no positive social utility—are appropriately held
to the strictest scrutiny. See Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L.J. 1977, 1982-88,
1993-96 (2006) (describing constitutional provisions
as commitments the People make to prevent certain

 7
“paradigm-case” evils); see also John Hart Ely, Democracy and Distrust 13 (1980) (describing the method of
the faithful constitutional interpreter as identifying
“the sorts of evils against which the provision was directed” and “mov[ing] against their contemporary
counterparts”). But when regulations touch upon a
constitutional right without significantly burdening
its core guarantees, this Court has typically applied
intermediate scrutiny. See, e.g., Turner Broad. Sys.,
Inc. v. FCC (Turner I), 512 U.S. 622, 662 (1994) (content-neutral restrictions that incidentally burden
speech); Clark, 486 U.S. at 461 (classifications of sex
and illegitimacy).
The Courts of Appeals have properly applied this
framework in the Second Amendment context, too,
complying with Heller’s mandate that the Second
Amendment be treated with the same respect afforded
to other constitutional rights. See Heller, 554 U.S. at
603, 626. To assess a constitutional challenge to gun
safety regulation, the test adopted by the lower courts
looks first at whether a restriction “burdens conduct
protected by the Second Amendment.” N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir.
2015). If the restriction implicates the Second Amendment, courts then determine “how close the law comes
to the core of the Second Amendment right and the
severity of the law’s burden on the right.” Ezell, 651
F.3d at 703. Laws that significantly burden the core
right receive strict scrutiny, while all others receive
intermediate scrutiny. See, e.g., Ass’n of N.J. Rifle &
Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 117
(3d Cir. 2018); see also Brief of Second Amendment
Law Professors as Amici Curiae in Support of Neither
Party at 8-9, N.Y. State Rifle & Pistol Ass’n v. City of

 8
New York, No. 18-280 (May 14, 2019) (citing cases
from each Circuit adopting the two-step framework).
Whether or not this Court ultimately concludes
that New York City’s now-abrogated Rule passes constitutional muster, it should expressly adopt the
core/non-core framework suggested in Heller for evaluating Second Amendment challenges, and hold that
the constitutionality of regulations touching upon
non-core Second Amendment activities should be
evaluated under intermediate scrutiny.
A. Intermediate Scrutiny Provides Legislatures Needed Flexibility To Adopt Reasonable Policy Judgments.
The application of intermediate scrutiny to gun
safety regulations that do not substantially burden
the core guarantee of the Second Amendment is consistent with the legislature’s role to pass laws that
promote public safety and welfare. That role is entrusted to the legislature, not the judiciary, for good
reason. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584,
2612 (2015) (Roberts, C.J., dissenting) (“[A]s this
Court has been reminded throughout our history, the
Constitution is made for people of fundamentally differing views. . . . Accordingly, courts are not concerned
with the wisdom or policy of legislation.” (internal
quotation marks and citation omitted)); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 979
(1992) (Scalia, J., concurring in part and dissenting in
part) (generally, “most important questions in our democracy” are to be resolved “by citizens trying to persuade one another and then voting.”). Legislatures
are “far better equipped than the judiciary to amass
and evaluate the vast amounts of data bearing upon
legislative questions.” Turner Broad. Sys., Inc. v. FCC

 9
(Turner II), 520 U.S. 180, 195-96 (1997) (internal quotation marks omitted); accord Bd. of Educ. of the
Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 251
(1990) (rejecting Establishment Clause challenge and
noting that Court would not “lightly second-guess []
legislative judgments, particularly where the judgments are based in part on empirical determinations”); Archibald Cox, The Role of Congress in Constitutional Determinations, 40 U. Cin. L. Rev. 199, 209
(1971) (a legislature is a “better fact-finding body than
an appellate court”). As this Court has acknowledged,
legislatures “are better qualified to weigh and evaluate the results of statistical studies in terms of their
own local conditions and with a flexibility of approach
that is not available to the courts.” McClesky v. Kemp,
481 U.S. 279, 319 (1987) (internal quotation marks
omitted); accord Turner II, 520 U.S. at 199 (“The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process.”); Rostker
v. Goldberg, 453 U.S. 57, 68 (1981) (Courts “must be
particularly careful not to substitute [their own] judgment of what is desirable for that of Congress, or
[their] own evaluation of evidence for reasonable evaluation by the Legislative Branch.”).
Regulation of firearms is one particular field
where the legislature’s ability to conduct fact-finding
and make predictive judgments is crucial and entitled
to judicial deference. Legislatures passing gun safety
laws must make predictive judgments about the likely
effects of different types of regulations; the evidence
they can muster, while real, cannot approach the rigor
of a controlled experiment. Gun safety laws thus involve legislative “judgments concerning regulatory
schemes of inherent complexity” that are entitled to

 10
“substantial deference,” lest this Court “infringe on
traditional legislative authority to make predictive
judgments when enacting nationwide regulatory policy.” Turner II, 520 U.S. at 195-96; see also Walters v.
Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 330
n.12 (1985) (noting that congressional findings “are of
course entitled to a great deal of deference”). That
flexibility is needed “in the context of gun safety,”
where “‘the expense and other difficulties of individual determinations’ may necessitate ‘the inherent imprecision of a prophylactic rule.’” Tyler v. Hillsdale
Cty. Sheriff’s Dep’t, 837 F.3d 678, 698 (6th Cir. 2016)
(en banc) (quoting Weinberger v. Salfi, 422 U.S. 749,
777 (1975)).
In assessing gun safety regulations, legislatures
have to engage in multi-dimensional and often counterfactual analyses, and draw lines that inevitably
may appear too fine or arbitrary to certain segments
of the population. And legislators must draw these
fine lines in the face of their own policy preferences
and those of various constituencies. For example, how
can legislatures reduce mass shooting fatalities by
limiting the number of rounds of ammunition in a firearm magazine, while protecting the right to armed
self-defense? What qualifications should applicants
for permits to carry loaded firearms in public have?
Should firearms be required to possess built-in safety
devices (such as “smart handguns” that can be fired
only by an authorized user) to prevent unintentional
shootings and limit unreasonable risks to public
safety; and if so, should the requirement be universal
or apply only to a subset of either gun owners or firearms?

 11
State and local legislatures are best positioned to
make these judgments, balancing the needs of differently situated communities from our densely populated cities—like New York City in this case—to rural
locales where police protection can be further away,
see Kyle Hopkins, Lawless, ProPublica (May 16,
2019), https://features.propublica.org/local-reportingnetwork-alaska/alaska-sexual-violence-village-police
(noting that in certain locations in Alaska, “emergency help is hours or even days away”), just as Congress is well positioned to determine when a national
solution is appropriate. True to form, legislatures’
judgments have been appropriately exercised in a
wide variety of ways that promote safety. For example, the federal government and states have restricted
the classes of people who can own firearms3 and the
locations where firearms can be possessed and carried.4 As firearms have grown deadlier, legislatures

3

See, e.g., 18 U.S.C. § 922(g) (convicted felons); Colo. Rev. Stat.
§ 18-1-1001(3)(c) (2018) (domestic abusers); Tenn. Code Ann. §
39-13-111(c)(6) (2018) (domestic abusers); Cal. Penal Code
§§ 646.9, 29805 (stalkers); Cal. S.B. 1100 (2018) (sale to minors);
Fla. S.B. 7026 (2018) (same); Vt. S.B. 55 (2019) (same); Wash.
Initiative 1639 (2018) (same); see also Giffords Law Center to
Prevent Gun Violence, Categories of Prohibited People,
https://lawcenter.giffords.org/gun-laws/policy-areas/who-canhave-a-gun/categories-of-prohibited-people.
4

See, e.g., 430 Ill. Comp. Stat. 66/65(a)(19) (2019) (areas under
control of airports); 720 Ill. Comp. Stat. 5/24-1(c)(1.5) (2017)
(public parks); Ky. Rev. Stat. Ann. § 237.110(16)(c) (2017) (courthouses); Mich. Comp. Laws §§ 28.425o(1)(d), 750.234d(1)(h)
(2017) (bars and restaurants); S.C. Code Ann. § 16-23-420(A)
(2019)
(government-owned
buildings);
Wis.
Stat.
§ 175.60(16)(a)(1) (2019) (law enforcement stations).

 12
have restricted access to military-grade weaponry,5
and have regulated how firearms are acquired to ensure that background check laws effectively protect
the public.6 While it is impossible to know exactly how
many lives these restrictions have saved, intermediate scrutiny gives legislatures the breathing room
they need to consider and pass gun safety legislation
that is tailored to their respective communities’ needs.
Intermediate scrutiny reflects the legislature’s institutional competence to make those difficult judgments, and respects the role of legislatures across the
country to conduct fact-finding and pass laws that
best respond to contemporary threats in their respec-

5

See, e.g., 18 U.S.C. § 925(d)(3) (automatic firearms); BumpStock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (bump
stocks); see also, e.g., Conn. H.B. 5542 (2018) (same); Del. H.B.
300 (2018) (same); Fla. S.B. 7026 (2018) (same); Haw. S.B. 2046
(2018) (same); Md. S.B. 707 (2018) (same); N.J. S.B. 3477 (2017)
(same); R.I. S.B. 2292/H.B. 7075 (2018) (same); Wash. S.B. 5992
(2018) (same); N.J. A.B. 2761 (2018) (armor-piercing bullets); Vt.
S.B. 55 (2019) (magazine capacity limitations). Additionally, certain states have regulated the purchase and possession of untraceable and undetectable firearms. See, e.g., N.J. Stat. Ann. §
2C:39-9(k), (m).
6

See Giffords Law Center to Prevent Gun Violence, Background Check Procedures: State by State, https://lawcenter.giffords.org/gun-laws/state-law/50-state-summaries/background-check-procedures-state-by-state; see also Conn.
Gen. Stat. § 29-37g(c) (2019) (requiring dealers to report to law
enforcement when a potential purchaser fails a background
check); Or. Rev. Stat. § 166.435(1)(a)(F) (permitting guns to be
temporarily transferred without a background check to prevent
a death); Haw. H.B. 459 (2017) (requiring notice to law enforcement agencies if a permit applicant fails a background check);
Wash. H.B. 1501 (2017) (same).

 13
tive communities. See generally Blocher, supra (tracing the history of gun regulation and usage in rural
versus urban communities); see also McDonald v. City
of Chicago, 561 U.S. 742, 902 (2010) (Stevens, J., dissenting) (“Across the Nation, States and localities
vary significantly in the patterns and problems of gun
violence they face, as well as in the traditions and cultures of lawful gun use they claim. . . . Given that relevant background conditions diverge so much across
jurisdictions, the Court ought to pay particular heed
to state and local legislatures’ ‘right to experiment.’”);
id. at 785 (majority opinion) (noting that “[s]tate and
local experimentation with reasonable firearms regulations will continue under the Second Amendment”
(internal quotation marks omitted)). Intermediate
scrutiny gives democratically elected legislators the
breathing room to make these difficult predictive
judgments. This Court should preserve that essential
balance here.
B. Intermediate Scrutiny Adequately Protects Second Amendment Rights.
Intermediate scrutiny is not toothless, as certain
amici have suggested. See, e.g., Brief of Amicus Curiae National Rifle Association of America, Inc. in
Support of Petitioners at 26-29, N.Y. State Rifle & Pistol Ass’n v. City of New York, No. 18-280 (May 14,
2019) (suggesting that application of intermediate
scrutiny would “make a mockery” of the Second
Amendment). It can and does adequately protect and
preserve individual liberty. Indeed, gun safety laws
are often struck down under intermediate scrutiny
when governments cannot demonstrate a reasonable
fit between regulations and important government interests. See, e.g., Ezell, 651 F.3d at 707-11 (finding

 14
that a law banning firing ranges in Chicago would
likely fail under intermediate scrutiny).
The laws that courts have invalidated or questioned under intermediate scrutiny are a diverse set,
demonstrating that intermediate scrutiny—while
providing legislatures with needed flexibility—is
hardly a rubber stamp:


Federal statute permanently prohibiting
plaintiff previously committed to a mental institution from possessing a firearm violates
the Second Amendment if the government
fails to sufficiently justify the lifetime prohibition. Tyler, 837 F.3d 678 (reversing dismissal
of as-applied challenge to 18 U.S.C.
§ 922(g)(4)).



Federal statute prohibiting individuals convicted of certain state misdemeanors from possessing a firearm held unconstitutional as applied. Binderup v. Att’y Gen. U.S., 836 F.3d
336, 353 (3d Cir. 2016), cert. denied, 137 S. Ct.
2323 (2017).



Provision of New York statute imposing a
seven-round magazine load limit invalidated.
Cuomo, 804 F.3d 242.



Several provisions of District of Columbia statute—including written examination, re-registration, and inspection requirements—invalidated. Heller v. District of Columbia (Heller
III), 801 F.3d 264 (D.C. Cir. 2015).



Federal statute criminalizing the possession of
firearms by users of controlled substances not
sufficiently justified by the government, but

 15
remanding to give the government the opportunity to develop the record. United States v.
Carter, 669 F.3d 411 (4th Cir. 2012).


Federal statute criminalizing possession of
firearms by individuals convicted of a domestic-violence misdemeanor not sufficiently justified by the government, but remanding to give
the government the opportunity to develop the
record. United States v. Glisson, 460 F. App’x
259 (4th Cir. 2012) (per curiam); United States
v. Chester, 628 F.3d 673 (4th Cir. 2010)
(same).



Preliminarily enjoining as unconstitutional
city ordinance banning firing ranges within
city limits. Ezell, 651 F.3d 684.7

Gun safety regulations are invalidated under intermediate scrutiny when the evidence presented by
the government is insufficient to show the law fits reasonably with the law’s purpose. Indeed, even under
intermediate scrutiny, the government’s evidence
must be specific enough to justify the particular regulation in question. For example, the Third Circuit, in
applying intermediate scrutiny to a prohibition on
gun possession by individuals convicted of a crime
7

Intermediate scrutiny has also been applied in other contexts
to invalidate a wide variety of laws, demonstrating that this test
is hardly toothless. See, e.g., Sessions v. Morales-Santana, 137
S. Ct. 1678, 1690 (2017) (gender-based distinctions in derivation
of United States citizenship); Clark, 486 U.S. at 465 (limitations
for paternity actions by illegitimate children); United States v.
Grace, 461 U.S. 171, 182-83 (1983) (content-neutral law prohibiting displays on Supreme Court grounds); Craig v. Boren, 429
U.S. 190, 204 (1976) (law prohibiting sale of beer to men under
age 21 and women under age 18).

 16
punishable by more than one year’s imprisonment,
rigorously evaluated the government’s proffered evidence before invalidating the prohibition as applied to
the appellants, who were convicted of nonviolent misdemeanors. Binderup, 836 F.3d at 353. Although the
government’s public safety interest was sufficiently
important, the government’s studies, which showed
only a general correlation between past felonies and
future violent crime, did not satisfy its burden as to
individuals who committed misdemeanor crimes the
court determined were not serious. Id. at 353-54.
“[E]ven under intermediate scrutiny,” the government’s empirical evidence had to “demonstrate[] an
appropriate fit between” the regulation and the promoted end. Id. at 353, 355.
Similarly, the D.C. Circuit invalidated parts of
D.C.’s Firearms Registration Amendment Act, including those requirements for police inspections, re-registrations every three years, registrant testing about
the District’s gun laws, and limitations on registering
more than one gun per month. Heller III, 801 F.3d
264. For each of the invalidated provisions, the court
held that the District either “offered no evidence” or
failed to justify its regulation with “substantial evidence.” Id. at 277-80. And for the testing requirement
in particular, the court distinguished the evidence
that the District provided—that training in the safe
use of firearms promotes public safety—from the evidence that would be required to meet the District’s
burden—for instance, that passing a test on local gun
laws would do the same. Id. at 278-79.
Intermediate scrutiny requires legislatures to justify laws with evidence, not unsupported speculation.

 17
In Ezell, the Seventh Circuit rejected Chicago’s proffered explanation for the prohibition because, instead
of providing directly relevant evidence or testimony
based on experience, the city had provided mere “speculation about accidents and theft” that might occur at
a firing range. 651 F.3d at 709. Even if the government can offer independently persuasive evidence,
under intermediate scrutiny, it also faces the burden
of rebutting the opposing party’s evidence if that evidence is sufficient to “cast direct doubt” on the government’s claims; the government cannot “get away with
shoddy data or reasoning.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002).
Unlike rational basis review, which gives “almost
complete deference” to the legislature and almost always leads to a finding of constitutionality, Erwin
Chemerinsky, Constitutional Law: Principles and Policies 706-08 (5th ed. 2015), intermediate scrutiny provides real protection for Second Amendment rights—
while still giving legislatures breathing room to make
difficult life-or-death decisions.
C. The Second Circuit Properly Determined
That The New York City Rule Burdened
Only Non-Core Rights, Rendering It Subject To Intermediate Scrutiny.
The former New York City Rule restricting the
transportation of firearms for holders of premises licenses is no longer in effect, and Respondents contend
that this dispute is therefore moot. See Suggestion of
Mootness at 5-7, N.Y. State Rifle & Pistol Ass’n v. City
of New York, No. 18-280 (July 22, 2019); Resp. Br. at
Arg. Pt. I. If this Court nonetheless evaluates the
now-abrogated New York City Rule, it should affirm

 18
the Second Circuit’s conclusion that the Rule burdened only non-core Second Amendment rights, to
which the application of intermediate scrutiny is appropriate, and should uphold the Rule under that
test.8
The Second Circuit properly determined that the
challenged regulation, which limited the transportation of firearms outside of the home, did not significantly burden the core Second Amendment right to
keep arms in one’s home for self-defense. See N.Y.
State Rifle & Pistol Ass’n v. City of New York, 883 F.3d
45, 60-61 (2d Cir. 2018). The former Rule did not prohibit New Yorkers from possessing firearms in their
homes or from training adequately with those firearms. Id. The nature of the burden imposed by the
former Rule was best analogized to a content-neutral
time, place, or manner restriction on speech, to which
courts commonly apply intermediate scrutiny, see Hill
v. Colorado, 530 U.S. 703, 727-30 (2000); the restriction made it marginally more difficult to exercise
the right, but the right remained intact nonetheless.
See Ezell, 651 F.3d at 703 (“[b]orrowing from the
Court’s First Amendment doctrine” the principle that
“the rigor of [] judicial review will depend on how close
the law comes to the core of the Second Amendment
Right and the severity of the law’s burden on that
right”).

8

Petitioners only challenged provisions of New York City’s
premises-licensing scheme; they did not challenge, and the Second Circuit did not consider, New York’s separate carry-licensing
scheme. See N.Y. State Rifle & Pistol Ass’n v. City of New York,
883 F.3d 45, 52-53 (2d Cir. 2018). The constitutionality of the
carry-licensing scheme is not at issue.

 19
Given that the former Rule at most burdened only
non-core Second Amendment rights, the Second Circuit was correct to apply intermediate scrutiny—for
all of the reasons discussed herein—and correct in ultimately concluding that New York’s Rule was “substantially related to the achievement of an important
government interest.” City of New York, 883 F.3d at
62 (quoting Cuomo, 804 F.3d at 261). The rationale
for the former Rule—“protect[ing] public safety and
prevent[ing] crime”—was clearly an important governmental interest. Id.; accord, e.g., Heller III, 801
F.3d at 274. And the City proffered sufficient evidence
to demonstrate that its regulation was “substantially
related” to that interest, through testimony from the
former Commander of the License Division, Andrew
Lunetta, who discussed why the restriction was necessary to prevent “potential threat[s] to public safety.”
City of New York, 883 F.3d at 63. As he explained, the
transport restrictions then in effect prevented licensees from continually traveling with their weapons
and minimized “instances of unlicensed transport of
firearms on city streets.” Id. This testimony was sufficient: As the Second Circuit noted, intermediate
scrutiny does not require a perfect, narrowly tailored
or least restrictive fit between a law and the government’s ends. Id. at 62. The evidence was non-speculative and “fairly supported” the City’s rationale. Id.
at 64 (internal quotations omitted). In accepting the
City’s proffered evidence as sufficient to establish a
substantial relation between its former Rule and the
important interest of public safety, the Second Circuit
properly applied intermediate scrutiny. Turner II,
520 U.S. at 195-98 (deferring to Congress’s judgment
that cable operators had considerable market power
over local video programming markets, based in part

 20
on record evidence and testimony that cable market
penetration was predicted to grow beyond 70 percent).
But regardless of how the Court ultimately rules
on the unique facts of this case, if it reaches the merits
it should expressly affirm the core/non-core distinction and hold that laws implicating only non-core Second Amendment activities be evaluated under intermediate scrutiny, consistent with this Court’s treatment of other constitutional rights.
***
In sum, intermediate scrutiny allows our federal
and state system to function exactly as it should,
while still preserving individual Second Amendment
liberties: Intermediate scrutiny lets the states serve
as “laboratories for devising solutions to difficult legal
problems,” see Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015)
(quoting Oregon v. Ice, 555 U.S. 160, 171 (2009)), and
lets Congress legislate where gun safety requires nationwide legislation. Under the intermediate-scrutiny
regime, legislatures have been able to both experiment with gun safety policy and have a fighting
chance to justify their legislative judgments while balancing public safety and individual liberty. Congress,
and state and local legislatures should be free to continue to experiment for the public good. Applying intermediate scrutiny lets them do just that.

 21
II. APPLICATION OF STRICT SCRUTINY OR PETITIONERS’ PURELY HISTORICAL TEST WOULD UNDULY LIMIT THE ABILITY OF LEGISLATURES
AROUND THE COUNTRY TO PRESERVE PUBLIC
SAFETY AND LIMIT GUN VIOLENCE.
Petitioners and their amici propose two alternatives to intermediate scrutiny: strict scrutiny or an
amorphous approach based on “text, history, and tradition.” Neither alternative is the proper means of
evaluating statutes and regulations that affect noncore Second Amendment rights. Neither alternative
affords adequate deference to the collective wisdom of
federal, state, and local legislatures, and both alternatives would curtail the efforts of elected representatives across the country to enact reasonable gun safety
measures to prevent crime and promote public safety.
This Court should decline Petitioners’ invitation to
radically revamp the framework that nearly all
Courts of Appeals have applied to evaluate legislation
that burdens non-core Second Amendment rights.
A. This Court Should Not Apply Strict Scrutiny To Laws And Regulations That Do
Not Interfere With Core Second Amendment Rights.
Strict scrutiny, which requires the government to
demonstrate that a challenged law “is necessary to accomplish a compelling governmental purpose,” is one
of the most stringent tests in constitutional law.
Chemerinsky, Constitutional Law, supra, at 567 (emphasis added). To survive strict scrutiny, a law must
be “narrowly tailored” and the “least restrictive” option. United States v. Playboy Entm’t Grp., Inc., 529

 22
U.S. 803, 813 (2000); Ezell, 651 F.3d at 707. Commentators have described strict scrutiny as “virtually always fatal to the challenged law” or regulation.
Chemerinsky, Constitutional Law, supra, at 699; see,
e.g., Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 805
(2011) (content-based restrictions on speech failed
strict scrutiny as both “seriously overinclusive” and
“seriously underinclusive”); Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 362 (2010) (restrictions on political speech failed strict scrutiny as
“both underinclusive and overinclusive”); Simon &
Schuster, Inc. v. Members of N.Y. State Crime Victims
Bd., 502 U.S. 105, 121 (1991) (content-based restrictions on speech failed strict scrutiny as “significantly overinclusive”); see also United States v. Alvarez, 567 U.S. 709, 731 (2012) (Breyer, J., concurring)
(describing strict scrutiny as “near-automatic condemnation”); 2 Chester James Antieau & William J.
Rich, Modern Constitutional Law § 25.02, at 8 (2d ed.
1997) (strict scrutiny “create[s] virtually insurmountable hurdles for the government seeking to defend its
classifications”); Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141, 1160 (2002)
(strict scrutiny, “as everyone knows, is almost always
fatal”).
Strict scrutiny’s highly intensive judicial review is
inappropriate in the context of non-core Second
Amendment rights for at least three reasons. First,
strict scrutiny would be incompatible with the unique
text of the Second Amendment, which expressly contemplates regulation in this area. The first clause of
the Second Amendment specifically recognizes that
the militia must be “well regulated.” U.S. Const.

 23
amend. II. Unlike with other individual rights enshrined in the Constitution, the Founders thus baked
into the Second Amendment the notion that the legislative branch must have a say in how arms are handled and used. Compare U.S. Const. amend. II (describing the “necess[ity]” of a “well regulated Militia”),
with U.S. Const. amend. I (“Congress shall make no
law” abridging the rights guaranteed by the First
Amendment (emphasis added)). See also Adam Winkler, Scrutinizing the Second Amendment, 105 Mich.
L. Rev. 683, 707 (2007) (observing that “[s]ome measure of regulatory authority . . . does seem to be called
for by the text” of the Second Amendment); Saul Cornell & Justin Florence, The Right to Bear Arms in the
Era of the Fourteenth Amendment: Gun Rights or Gun
Regulation?, 50 Santa Clara L. Rev. 1043, 1054 (2010)
(“[T]he necessity of having a well-regulated militia
meant that the people had the right to have certain
weapons, which they were entitled to use for self defense, under common law and subject to reasonable
state regulation.” (emphasis added)). Given the necessity of a “well-regulated militia,” it cannot be the case
that our nation’s legislatures should be strictly scrutinized when they enact such regulations. See Heller,
554 U.S. at 627 & n.26 (providing non-exhaustive list
of “presumptively lawful regulatory measures” relating to firearms).
Second, the adoption of strict scrutiny would drastically limit the ability of legislatures to enact sensible
gun safety regulations appropriate to their particular
locality. To satisfy the “demanding standard” of strict
scrutiny, the government must not only “specifically
identify an ‘actual problem’ in need of solving,” but
also build a robust record showing that the challenged

 24
law is “actually necessary to the solution.” Brown, 564
U.S. at 799-800. “[B]ecause [the government] bears
the risk of uncertainty, ambiguous proof will not suffice.” Id. (internal citation omitted) (striking down a
content-based restriction because the State could not
show “a direct causal link between violent video
games and harm to minors” (emphasis added)); see Abbott v. Perez, 138 S. Ct. 2305, 2335 (2018) (legislature
must make “a strong showing of a pre-enactment
analysis with justifiable conclusions”). Legislatures—
particularly those in smaller communities with fewer
resources—will rarely be able to compile the necessary robust and unambiguous record in the firearm
context, where “the empirical data [are] often conflicting.” Winkler, supra, at 713; see Peruta v. Cty. of San
Diego, 824 F.3d 919, 944 (9th Cir. 2016) (en banc)
(Graber, J., concurring) (noting that “social scientists
disagree” about the effect of even “modest restrictions
on concealed carry of firearms”). Strict scrutiny could
therefore doom legislative efforts from the start and
prevent them from taking the diverse approaches
needed to balance individual liberty and public safety.
Where life and death are concerned, legislatures
should have more flexibility to innovate, not less. See
Kolbe v. Hogan, 849 F.3d 114, 150 (4th Cir. 2017) (Wilkinson, J., concurring) (application of strict scrutiny
in non-core Second Amendment challenges would
“[d]isenfranchis[e] the American people on this life
and death subject” and “deliver a body blow to democracy as we have known it since the very founding of
this nation”).9
9

See also Turner v. Safley, 482 U.S. 78, 89 (1987) (“[I]nflexible
strict scrutiny analysis” would “distort the decisionmaking process,” for every decision “would be subject to the possibility that

 25
Third, laws affecting the right to bear arms do not
pose the kinds of dangers that strict scrutiny is designed to guard against. This Court and constitutional scholars have recognized that strict scrutiny “is
appropriately reserved for areas of law, such as race
discrimination and restrictions on political speech,
where we would expect most, if not all, regulation to
be invidious.” Winkler, supra, at 702; see City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
444 (1985) (declining to apply strict scrutiny to disability classifications because “in the vast majority of
situations” such classifications are not invidious);
Cass R. Sunstein, The Supreme Court, 1995 Term—
Foreword: Leaving Things Undecided, 110 Harv. L.
Rev. 4, 78 (1996) (strict scrutiny “ensure[s] that courts
are most skeptical in cases in which it is highly predictable that illegitimate motives are at work”); see
also Rubenfeld, Paradigm-Case Method, supra at
1993-96; Ely, supra, at 13. Unlike classifications
based on race or viewpoint, which are almost never
permissible, most laws regulating arms are passed to
further the compelling governmental interests of public safety and crime prevention—a fact Petitioners do
not dispute. See Heller, 554 U.S. at 689 (Breyer, J.,
dissenting) (“[A]lmost every gun-control regulation
will seek to advance . . . a ‘primary concern of every
government—a concern for the safety and indeed the
lives of its citizens.’”).
In sum, strict scrutiny is the wrong way to assess
gun safety regulation that affects non-core Second
Amendment rights. Even with the current level of

some court somewhere would conclude that it had a less restrictive way of solving the problem at hand”).

 26
flexibility made possible by the appellate courts’ adoption of intermediate scrutiny, the rates of gun violence
and crime remain unacceptably and tragically high.
Placing federal, state, and local safety measures under a strict-scrutiny microscope would drastically reduce legislative innovation in this area at a time when
citizens need more, not less, to be done to protect police, students, and other bystanders from senseless
gun violence. See Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting) (noting that the Court should
not “seize[] for itself a question the Constitution
leaves to the people, at a time when the people are engaged in a vibrant debate on that question”); McDonald, 561 U.S. at 784-85 (Although the Second Amendment applies to the States, “their ability to devise solutions to social problems that suit local needs and
values” survives.); Cleburne, 473 U.S. at 445
(“[G]overnmental bodies must have a certain amount
of flexibility and freedom from judicial oversight in
shaping and limiting their remedial efforts.”).
B. The Proposed “Historical” Approach Is
Deeply Flawed.
Petitioners propose a second, even more inflexible
test based on “text, history, and tradition.” Pet. Br. at
26. Under Petitioners’ proposed historical approach,
a court must identify at least one “historical analog”
to the challenged law or strike the law down as unconstitutional. Id. at 27-29. This test should be rejected
as inconsistent with this Court’s precedent and unduly restrictive of the constitutionally mandated prerogatives of the legislatures.
When describing the use of history as an analytical and interpretive tool, Petitioners have it exactly

 27
backwards. Congress has the authority to pass appropriate legislation consistent with the Article I grant of
the legislative power, without looking to whether
there is historical precedent for such legislation. Otherwise, Congress would be unable to pass laws regulating any number of subject matters that did not exist and were not even contemplated at the time of the
nation’s Founding, such as the internet, space flight,
cancer treatments, nuclear power, or methamphetamines. By contrast, this Court has consulted history
in order to define the scope of individual rights, not
the scope of permissible regulation touching upon
those rights. See Heller, 554 U.S. at 634-35 (explaining that “[c]onstitutional rights are enshrined with
the scope they were understood to have when the people adopted them,” regardless of the action or inaction
of “future legislatures”); Erwin Chemerinsky, History,
Tradition, the Supreme Court, and the First Amendment, 44 Hastings L.J. 901, 901 (1993) (“Repeatedly,
the Supreme Court has denied constitutional protection by holding that the claimed right was not historically protected.” (emphasis added)); id. at 903 (observing the “Court’s repeated statements and rulings,” in virtually “every area of individual rights,”
that “the Constitution does not protect more than has
been traditionally safeguarded”). Indeed, if a particular right was not constitutionalized at the time of the
Founding, members of this Court have understood
that legislatures are free to regulate in ways that may
infringe upon it. See, e.g., Obergefell, 135 S. Ct. at
2613-15 (Roberts, C.J., dissenting); Brown, 564 U.S.
at 835 n.2 (Thomas, J., dissenting) (“To note that
there may not be precedent for such state control is
not to establish that there is a constitutional right.”
(internal quotation marks, citation, and brackets

 28
omitted)); Lawrence v. Texas, 539 U.S. 558, 593 (2003)
(Scalia, J., dissenting) (noting that “only fundamental
rights . . . deeply rooted in this Nation’s history and
tradition” call for heightened scrutiny, and that “[a]ll
other liberty interests may be abridged or abrogated
pursuant to a validly enacted state law if that law is
rationally related to a legitimate state interest” (emphasis in original) (internal quotations omitted)).
Even if Petitioners accurately described this
Court’s use of history, the Court should reject the socalled historical test as fundamentally unworkable.
Petitioners’ historical test is possibly even less deferential to legislative expertise than strict scrutiny. Under the historical test, even laws narrowly tailored to
support a compelling contemporary interest, see supra
Part II.A, would not pass muster if they lack a “historical analog.” Although modern innovations such as
background checks and domestic violence restraining
orders that prohibit gun possession might well survive
strict scrutiny, their historical analogs may be sparse,
potentially obliterating essential (and not unduly burdensome) public safety measures. This formula has
no basis in the text of the Constitution or in this
Court’s jurisprudence. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 373 (1995) (Scalia, J., dissenting) (“Quite obviously, not every restriction upon expression that did not exist in 1791 or 1868 is ipso facto
unconstitutional.”).
Petitioners’ historical test will also handcuff legislatures as they attempt to address novel problems and
respond to rapidly developing technology. Justice
Alito recognized this concern in United States v.
Jones, 565 U.S. 400 (2012), where he rejected the ap-

 29
plication of a historical test when the Court considered whether the application of GPS trackers constituted a “search” under the Fourth Amendment. A historical test to that inquiry made no sense, Justice
Alito explained, because, short of imagining a “very
tiny constable” who “secreted himself somewhere in a
coach,” it was “almost impossible to think of late-18thcentury situations that are analogous to” GPS tracking of automobiles. Id. at 420 & n.3 (Alito, J., concurring); see also id. at 429 (“In circumstances involving
dramatic technological change, the best solution . . .
may be legislative.”).10 This concern is particularly salient in the context of gun safety legislation, much of
which aims to address modern technological advancements that would have been inconceivable at the time
of the Founding. For example, the 3D Printed Gun
Safety Act, recently introduced in the House of Representatives, would prohibit “the distribution of 3D
printer plans for the printing of firearms.” H.R. 3265,
116th Cong. (2019). Similarly, states have been experimenting with “microstamping” technology, which
would imprint a serial number on shell casings when
a bullet is fired, enabling police to reduce the number
of unsolved gun homicides and prevent the retaliatory
violence that sometimes follows an unsolved crime.

10

Justice Alito’s critique of the historical text in the Fourth
Amendment context is particularly apt given that the language
of the Second Amendment (which, again, expressly contemplates
“well regulated” activity, U.S. Const. amend. II) aligns closely
with that of the Fourth Amendment. Both Amendments enshrine not only a liberty but also a government power: the Second
Amendment recognizes the need for “regulat[ion]” while the
Fourth reflects the authority of the government to conduct reasonable searches and seizures. U.S. Const. amend. IV.

 30
See Cal. Penal Code § 12126(b)(7) (requiring new semiautomatic handgun models to imprint cartridges
with at least two identifying microstamps that are
transferred onto the cartridge casing when the firearm is fired). Petitioners’ proposed historical test
would effectively kneecap legislatures around the
country and prevent their adoption of innovative efforts to address modern firearm dangers. The Court
should reject this approach.
***
In short, although the degree and scope of firearm
regulation varies, the federal government and all fifty
states have exercised their discretion to enact gun
safety legislation of some kind, drawing upon local
context and the needs of local constituents as well as
insights from other states, in accordance with the federalist design. Amici as legislators and representatives of these communities across the country have a
vested interest in protecting these laws and ensuring
that legislatures in the future have the discretion and
receive the judicial deference to continue to craft innovative solutions to gun safety challenges.
Petitioners ask this Court to restrict significantly
that discretion, to curtail the ability of legislators—
acting on behalf of the People—to provide for the
safety of their communities. This the Court should reject. Legislatures, from the municipal to the national,
should be free to adopt common-sense solutions to our
nation’s gun violence epidemic that do not infringe
core Second Amendment rights, without limiting
those solutions only to the “least restrictive” means or
the most historically analogous method. This Court

 31
should make clear that such legislative deference is
permitted and required.
CONCLUSION
For the foregoing reasons, amici curiae respectfully request that this Court affirm the judgment below and affirm the two-step analytical framework that
the Courts of Appeals have universally applied.
Respectfully submitted.
LEE R. CRAIN
ERICA SOLLAZZO PAYNE
ALEXANDRA PERLOFF-GILES
TREVOR BONDY GOPNIK
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166

AVI WEITZMAN
Counsel of Record
REED BRODSKY
AKIVA SHAPIRO
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
aweitzman@gibsondunn.com

Counsel for Amici Curiae

August 12, 2019