Proskauer and co-counsel Center for Reproductive Rights (“the Center”) submitted an amicus brief to the Supreme Court in United States v. Rahimi. The brief, filed on behalf of the Center in support of the United States, urged the Supreme Court to reverse the Fifth Circuit Court of Appeal’s decision finding 18 U.S.C. § 922(g)(8), a federal law prohibiting people subject to domestic violence restraining orders from possessing firearms, unconstitutional. Oral argument took place on November 7, 2023.
Proskauer’s brief advanced two arguments. First, the brief argued that because homicide by firearm is a leading cause of death for pregnant and postpartum people in the United States, the Fifth Circuit decision could be especially dangerous for pregnant people, exacerbating America’s already devastating maternal and reproductive health crisis. Second, the brief analyzed the ways in which the Fifth Circuit misapplied New York State Rifle & Pistol Association, Inc. v. Bruen, where the Supreme Court applied a historical analogue test in determining a law’s constitutionality. In holding 18 U.S.C. § 922(g)(8) unconstitutional, the Fifth Circuit applied the Bruen test narrowly and concluded that the statute could not be upheld because there is no historical analogue to suggest that gun restrictions can be aimed at protecting a “specific person” from “domestic gun violence”. Scrutinizing the Court’s rationale, Proskauer and the Center emphasized the dangers inherent in upholding a legal framework mandating that exact historical analogues be found in evaluating laws relating to women’s rights. Historically, wives, mothers, and pregnant and postpartum people were not equally protected by our country’s legal framework. The Fifth Circuit’s quest, therefore, to find a perfect historical analogue is a futile effort, as it ignores our legal system’s historical failure to recognize the rights of women and pregnant people.
The Supreme Court’s decision in Rahimi will have lasting implications, potentially amplifying constitutional and real-world harms inflicted on pregnant people both indirectly by Bruen and directly by Dobbs v. Jackson Women’s Health Organization. Indeed, the Fifth Circuit’s decision highlights the dangers already inherent in being a pregnant or postpartum person in America. As Melissa Murray and Kate Shaw recently noted in an article they wrote for The New York Times (which referenced Proskauer and the Center’s brief), even a reversal of the Fifth Circuit’s decision would be only a “muted” victory, as a conservative Supreme Court moves towards “embrace of history and tradition as the bellwethers of constitutional interpretation.” The Proskauer team includes partner Margaret Dale, pro bono counsel Michelle Moriarty, associates Adam Farbiarz, Jana Ruthberg and Sarah Emmerich, and paralegals Robert Linton and Anna Brodskaya.