Originalism in the Lower Courts: Fifth Circuit Panel Invites Amicus Briefs on Second Amendment

"Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals."

On June 5, a Fifth Circuit panel (Smith, Higginson, and Willett) heard oral argument in United States v. Daniels. In this case, the defendant argues that a prohibition on possession of firearms for users of intoxicants and marijuana violates the Second Amendment, as construed by Bruen. No amicus briefs were filed in this case. The only submissions were made by the Federal Public Defender and the Department of Justice. Two days after oral argument, the panel issued a directive:

The court invites briefs from amici curiae who wish to supply relevant information regarding the history and tradition of restrictions on the use and possession of firearms as pertinent to the issues presented in this case. Of particular interest are historical gun regulations applicable to intoxicated or impaired individuals. Such briefs must be filed by July 6, 2023 (regardless of any time limitations set by rule).

I wholeheartedly endorse this directive. In my article, Originalism and Stare Decisis in the Lower Courts, I explain that lower courts can remedy the lack of originalist briefing by inviting amici to submit briefs. Specifically, with such a request, the panel is indicating there is interest. Moreover, there is no need to seek leave from the parties.

I encourage scholars on the Second Amendment to submit briefs in this case. Hunter Biden's lawyers may also be interested!

Going forward, the Fifth Circuit, and other courts, should create some sort of repository of such requests, and provide public notification. At it stands, only the handful of lawyers who made appearances in these cases would have seen the directive. Thankfully, a few people pointed it out to me.