BRYAN DAVID RANGE, Appellant v. ATTORNEY GENERAL UNITED STATES OF AMERICA; REGINA LOMBARDO, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives
No. 21-2835
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 23, 2024
Argued before Merits Panel on September 19, 2022; Argued En Banc on February 15, 2023; Reargued En Banc on October 9, 2024 on Remand from the Supreme Court of the United States
Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN, SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, CHUNG, ROTH, and AMBRO, Circuit Judges.
PRECEDENTIAL; On
William V. Bergstrom
Peter A. Patterson [Argued]
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Michael P.
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401
Counsel for the Appellant
Joseph G. S. Greenlee
Firearms Policy Coalition Action
5550 Painted Mirage Road Suite 320
Las Vegas, NV 89149
Counsel for Amici Curiae FPC Action Foundation and Firearms Policy Coalition, Inc. in Support of Appellant
Elisa A. Long
Lisa B. Freeland
Renee Pietropaolo
Eleni Kousoulis
K. Anthony Thomas
Helen A. Marino
Heidi R. Freese
Matthew Campbell
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Amicus Curiae Federal Public & Community Defender Organization of the Third Circuit in Support of Appellant
Brian M. Boynton
Jacqueline C. Romero
Mark B. Stern
Michael S. Raab
Abby C. Wright
Kevin B. Soter [Argued]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530
Counsel for the Appellees
Janet Carter
Everytown Law
450 Lexington Avenue
P.O. Box 4148
New York, NY 10017
Counsel for Amicus Curiae Everytown for Gun Safety in Support of Appellees
OPINION OF THE COURT
HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join. MATEY, Circuit Judge, filed a concurring opinion. PHIPPS, Circuit Judge, filed a concurring opinion. KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part. ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.
Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in-possession” law—
I
A
The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain
Range was sentenced to three years’ probation, which he completed without incident. He also paid $2,458 in restitution, $288.29 in costs, and a $100 fine. Other than his 1995 conviction, Range’s criminal history is limited to minor traffic and parking infractions and a summary offense for fishing without a license.
When Range pleaded guilty in 1995, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years’ imprisonment. That conviction precludes Range from possessing a firearm because federal law generally makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition.”
In 1998, Range tried to buy a firearm but was rejected by Pennsylvania’s instant background check system. Range’s wife, thinking the rejection a mistake, gifted him a deer-hunting rifle. Years later, Range tried to buy a firearm and was rejected again. After researching the reason for the denial, Range learned he was barred from buying a firearm because of his 1995 conviction. Range then sold his deer-hunting rifle to a firearms dealer.
B
In 2020, Range sued in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration that
The District Court granted the Government’s motion. Range v. Lombardo, 557 F. Supp. 3d 609, 611 (E.D. Pa. 2021). Faithfully applying our then-controlling precedents, the Court held that Range’s crime was “serious” enough to deprive him of his Second Amendment rights. Id. In doing so, the Court noted the two-step framework we established in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Range, 557 F. Supp. 3d at 613. The Court began—and ended—its analysis at the first step. It considered five factors to determine whether Range’s conviction made him an “unvirtuous citizen” of the kind historically barred from possessing a firearm: (1) whether the conviction was classified as a misdemeanor or a felony; (2) whether the elements of the offense involved violence; (3) the sentence imposed; (4) whether there was a cross-jurisdictional consensus as to the seriousness of the crime, Binderup v. Att’y Gen., 836 F.3d 336, 351–52 (3d Cir. 2016) (en banc) (plurality); and (5) the potential for physical harm to others created by the offense, Holloway v. Att’y Gen., 948 F.3d 164, 173 (3d Cir. 2020). Range, 557 F. Supp. 3d at 613–14.
While Range’s appeal was pending, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The parties then submitted supplemental briefing on Bruen’s impact. A panel of this Court affirmed the District Court’s summary judgment, holding that the Government had met its burden to show that
Range petitioned for rehearing en banc. We granted the petition and vacated the panel opinion. Range v. Att’y Gen., 56 F.4th 992 (3d Cir. 2023). The en banc Court reversed and remanded for the District Court to enter a declaratory judgment for Range. We concluded that Range remained one of “the people” protected by the Second Amendment and that the Government did not show the Nation has a longstanding history and tradition of disarming people like Range. Range v. Att’y Gen., 69 F.4th 96, 98 (3d Cir. 2023) (en banc). The Government petitioned the Supreme Court for a writ of certiorari.
While the Government’s petition was pending, the Supreme Court decided United States v. Rahimi, 144 S. Ct. 1889 (2024). The Court then vacated our en banc decision in Range and remanded for further consideration. Garland v. Range, 144 S. Ct. 2706 (2024). The parties and amicus filed more briefs and we heard argument again.
II
The District Court had jurisdiction under
III
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms unconnected with militia service. 554 U.S. 570, 583–84 (2008). Given that right, the Court held unconstitutional a District of Columbia law that banned handguns and required other “firearms in the home be rendered and kept inoperable at all times.” Id. at 630. It reached that conclusion after scrutinizing the text of the Second Amendment and deducing that it “codified a pre-existing right.” Id. at 592. The Heller opinion did not apply intermediate or strict scrutiny. In fact, it did not apply means-end scrutiny at all. But in response to Justice Breyer’s dissent, the Court noted in passing that the challenged law would be unconstitutional “[u]nder any of
Many courts around the country, including this one, overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step. We did so for the first time in Marzzarella, 614 F.3d at 97, and we continued down that road for over a decade. See, e.g., Drake v. Filko, 724 F.3d 426, 429, 434–40 (3d Cir. 2013); Binderup, 836 F.3d at 344–47, 353–56; Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 117 (3d Cir. 2018); Beers v. Att’y Gen., 927 F.3d 150, 154–55 (3d Cir. 2019), vacated as moot sub nom. Beers v. Barr, 140 S. Ct. 2758 (2020); Holloway, 948 F.3d at 169–72; Folajtar, 980 F.3d at 901.
Bruen rejected the two-step approach as “one step too many.” 597 U.S. at 19. The Supreme Court declared: ”Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Id. Instead, those cases teach “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. And “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Applying that standard, Bruen held “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Id. at 10. But the “where” question decided in Bruen is not at issue here. Range’s appeal instead requires us to examine who is among “the people” protected by the Second Amendment.
IV
Having explained how Bruen abrogated our Second Amendment jurisprudence, we now apply the Supreme Court’s established method to the facts of Range’s case. Both sides agree that we no longer conduct means-end scrutiny. And as the panel wrote: ”Bruen’s focus on history and tradition,” means that ”Binderup’s multifactored seriousness inquiry no longer applies.” Range, 53 F.4th at 270 n.9.
After Bruen, we must first decide whether the text of the Second Amendment applies to a person and his proposed conduct. 597 U.S. at 31–33. If it does, the government now bears the burden of proof: it “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19.
A
The Supreme Court referred to “law-abiding citizens” in Heller. In response to Justice Stevens’s dissent, which relied on United States v. Miller, 307 U.S. 174 (1939), the Court reasoned that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. In isolation, this language seems to support the Government’s argument. But Heller said more; it explained that “the people” as used throughout the Constitution “unambiguously refers to all members of the political community, not an unspecified subset.” Id. at 580. So the Second Amendment right, Heller said, presumptively “belongs to all Americans.” Id. at 581. Range cites these statements to argue that “law-abiding citizens” should not be read “as rejecting Heller’s interpretation of ‘the people.’” Range Pet. for Reh’g at 8. We agree with Range for four reasons.
First, the criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases. So their references to “law-abiding, responsible citizens” were dicta. And while we heed that phrase, we are careful not to overread it as we and other circuit courts did with Heller’s statement that the District of Columbia firearm law would fail under any form of heightened scrutiny.
Second, other constitutional provisions refer to “the people.”1 For instance, “the people” are recognized as having rights to assemble peaceably, to petition the government for redress,2 and to be protected against unreasonable searches and seizures.3 Felons are not categorically barred from First Amendment or Fourth Amendment protection because of their status. It is true, however, that prisoners have no First Amendment right to peaceably assemble, see Pell v. Procunier, 417 U.S. 817, 822 (1974), and no Fourth Amendment right as to prison-cell searches. Hudson v. Palmer, 468 U.S. 517, 526 (1984). We see no reason to adopt a reading of “the people” that excludes Americans from the scope of the Second Amendment while they retain their constitutional rights in other contexts.
Third, as the plurality stated in Binderup: “That individuals with Second Amendment rights may nonetheless be denied possession of a firearm is hardly illogical.” 836 F.3d at 344 (Ambro, J.). That statement tracks then-Judge Barrett’s dissenting
We agree with that statement in Binderup and then-Judge Barrett’s reasoning.
Fourth, as the Government concedes, see Gov’t Range II En Banc Br. 25, Rahimi makes clear that citizens are not excluded from Second Amendment protections just because they are not “responsible.” See Rahimi, 144 S. Ct. at 1903. The Supreme Court cautioned that “responsible” is too vague a concept to dictate the Second Amendment’s applicability and using the term that way would create an “unclear . . . rule” that does not “derive from [Supreme Court] case law.” Id. So too with the phrase “law-abiding.” Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No. We are confident that the Supreme Court’s references to “law-abiding, responsible citizens” do not mean that every American who gets a traffic ticket is no longer among “the people” protected by the Second Amendment. Perhaps, then, the category refers only to those who commit “real crimes” like felonies or felony-equivalents? At English common law, felonies were so serious they were punishable by estate forfeiture and even death. 4 William Blackstone, Commentaries on the Laws of England 54 (1769). But at the Founding, many states were moving away from making felonies—including crimes akin to making false statements—punishable by death in America. See United States v. Moore, 111 F.4th 266, 270–72 (3d Cir. 2024) (citing various Founding-era felony laws and penalties). For example, in Massachusetts, New Jersey, Kentucky, Virginia, Connecticut, and New York, forgery and counterfeiting were punishable with imprisonment, hard labor, fines, or corporal punishment, but not death.4 Federally, the Crimes Act of 1790 criminalized conduct involving falsification of records and stealing property of the United States, and punished such conduct with fines, corporal punishment, or a term of imprisonment.5 And today, felonies include a wide swath of crimes, some of which seem minor.6 Meanwhile, some misdemeanors seem serious.7 As the Supreme Court noted recently: “a felon is not always more dangerous than a misdemeanant.” Lange v. California, 594 U.S. 295, 305 (2021) (cleaned up).
In sum, we reject the Government’s contention that “felons are not among ‘the people’ protected by the Second Amendment.” Heller and its progeny lead us to conclude that Bryan Range remains among “the people” despite his 1995 false statement conviction.
Having determined that Range is one of “the people,” we turn to the easy question: whether
B
Because Range and his proposed conduct are protected by the Second Amendment, we now ask whether the Government can strip him of his right to keep and bear arms. To answer that question, we must determine whether the Government has shown that applying
To preclude Range from possessing firearms, the Government must show that
In attempting to carry its burden, the Government relies on the Supreme Court’s statement in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. A plurality of the Court reiterated that point in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). In his concurring opinion in Bruen, Justice Kavanaugh, joined by the Chief Justice, wrote that felon-in-possession prohibitions are “presumptively lawful” under Heller and McDonald. 597 U.S. at 81
Even if the 1938 Act were “longstanding” enough to warrant Heller’s assurance—a dubious proposition given the Rahimi Court’s focus on Founding-era sources, 144 S. Ct. at 1899–900, and the Bruen Court’s emphasis on Founding- and Reconstruction-era sources, 597 U.S. at 34, 59–60—Range would not have been a prohibited person under that law. Whatever timeframe the Supreme Court might establish in a future case, see Rahimi, 144 S. Ct. at 1898 n.1, we are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of “longstanding” for purposes of demarcating the scope of a constitutional right. So the 1961 iteration of
The Government’s attempt to identify older historical analogues also fails. The Government argues that “legislatures traditionally used status-based restrictions” to disarm certain groups of people. Gov’t En Banc Br. at 4 (quoting Range, 53 F.4th at 282). Apart from the fact that those restrictions based
on race and religion now would be unconstitutional under the First and Fourteenth Amendments, the Government does not successfully analogize those groups to Range. That Founding-era governments disarmed groups they distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove that Range is part of a similar group today. And any such analogy would be “far too broad[ ].” See Bruen, 597 U.S. at 31
According to the Government, taken together, these proposed historical analogues support a principle that “American legislatures disarmed classes of individuals who posed a danger of misusing firearms.” Gov’t Range II En Banc Br. 19.
Rahimi did bless disarming (at least temporarily) physically dangerous people. The law that it upheld required “a finding that [the defendant] represents a credible threat to [someone else’s] physical safety.”
Government does not try to justify disarming Range on this ground, and with good reason: it has no evidence that he poses a physical danger to others or that food-stamp fraud is closely associated with physical danger. It conceded as much the first time this Court heard the case en banc. Oral argument at 35:05–34:10; 32:55–31:52; 28:45–28:10.
Rather, the Government seeks to stretch dangerousness to cover all felonies and even misdemeanors that federal law equates with felonies. It notes that Rahimi left open the possibility of “banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Gov‘t Range II En Banc Br. 19 (quoting 144 S. Ct. at 1901). And it argues that those “convicted of serious crimes, as a class, can be expected to misuse firearms.” Id. at 22 (internal quotation marks omitted); accord United States v. Jackson, 110 F.4th 1120, 1127–29 (8th Cir. 2024).
Even if that categorical argument could suffice to uphold the original 1938 felon-in-possession ban, it does not support the current one. Again, it is “far too broad[ ].” Bruen, 597 U.S. at 31. It operates “at such a high level of generality that it waters down the right.” Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring). Like the Sixth Circuit, we refuse to defer blindly to
To support the de facto permanent disarmament that
Yet the Founding-era practice of punishing some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue here—de facto lifetime disarmament for all felonies and felony-equivalent misdemeanors—is rooted in our Nation‘s history and tradition.
Though our dissenting colleagues read Rahimi as blessing disarmament as a lesser punishment generally, the Court did not do that. Instead, it authorized temporary disarmament as a sufficient analogue to historic temporary imprisonment only to “respond to the use of guns to threaten the physical safety of others.” Compare Rahimi, 144 S. Ct. at 1902, with United States v. Diaz, 116 F.4th 458, 469–70 (5th Cir. 2024) (similarly broad reasoning).
For similar reasons, Founding-era laws that forfeited felons’ weapons or estates are not sufficient analogues either. Such laws often prescribed the forfeiture of the specific weapon used to commit a firearms-related offense without affecting the perpetrator‘s right to keep and bear arms generally. See, e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343–344 (“An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns“); Act of Apr. 20, 1745, ch. 3, N.C. Laws 69–70 (“An Act to prevent killing deer at unseasonable times, and for putting a stop to many abuses committed by white persons, under pretence of hunting“). So in the Founding era, a felon could acquire arms after completing his sentence and reintegrating into society.
Against this backdrop, it is important to remember that Range‘s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal‘s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That is true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.12
* * *
Our decision today is a narrow one. Bryan Range challenged the constitutionality of
MATEY, Circuit Judge, concurring.
Having “arms for [one‘s] defence . . . is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation.” 1 William Blackstone, Commentaries *143–44. I agree with the majority that the Justice Department has not shown that
Preserving “unalienable rights” justified our separation from England, Declaration of Independence para. 2 (U.S. 1776), and required a government “ordain[ed]” to “promote the general Welfare” and “secure the Blessings of Liberty,”
Surveying history helps us understand the reasons relied on to regulate the right, see Bruen, 597 U.S. at 27–29; Rahimi, 144 S. Ct. at 1898, ensuring a “[c]ontinuity of [p]rinciples” faithful to our inherited tradition.3 We look, in other words, for “markers or indicators that the later doctrine is essentially continuous with the earlier one and grows out of it, rather than representing a break with the past that mutilates or fundamentally transforms the core and essence of the doctrine.” Adrian Vermeule, Common Good Constitutionalism 123 (2022). So we must consider the sources that animate the natural right to bear arms, and the origin of
Absent exploration of the natural principles that support our legal tradition, we overlook those “certain primary truths, or first principles, upon which all subsequent
Rightly framed, history reveals two principles informing a consistent tradition. First, because the right to self-defense is protected by the Second Amendment and preexists our Founding, laws extensively regulating the types of firearms a person can possess and the places where possession is permitted can “eviscerate the general right to publicly carry arms for self-defense.” Bruen, 597 U.S. at 31; see also Heller, 554 U.S. at 636. All showing a robust protection of the right to bear arms by those within the civil society that can rarely be circumvented by the sovereign.
Second, because “public Virtue is the only Foundation of Republics,”6 the natural right to self-defense, like all other natural rights, can be exercised only by “a virtuous people who were controlled from within by a moral compass” that “respect[] social order, legitimate authority,” and “civic virtue.”7 This principle provides the reason for restrictions of the right to bear arms on those who set themselves against civil society by individual actions inconsistent with the common good.8 See Rahimi, 144 S. Ct. at 1901 (“[C]ommon sense suggests [that] [w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.“); 1 Blackstone, Commentaries *251 (“For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society; society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power; and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.“). Regulations concerning what types of firearms a person may carry and where a person may carry uniformly apply to everyone. But regulations on who may carry
A.
I begin with a brief examination of the liberty to defend oneself with arms, a right inherent in natural society that “[t]he law very wisely, and in a manner silently, gives a man.” Marcus Tullius Cicero, Speech in Defence of Titus Annius Milo (c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390, 394 (C.D. Yonge trans., 1913). Cicero explained that “if our life be in danger from plots, or from open violence, or from the weapons of robbers or enemies, every means of securing our safety is honorable.” Id. This law of self-defense “is a law . . . not written, but born with us, —which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made.” Id.
The Roman empire echoed Cicero‘s points “for centuries to come.” Stephen P. Halbrook, That Every Man Be Armed 20 (1984). The Lex Cornelia de sicariis of 81 B.C. stated that carrying weapons was lawful but not carrying a “sword of vengeance” or “weapons for the purpose of homicide.” J. Inst. 4.18.5 (J. Moyle trans. 1913). Accordingly, “whatever a person does for his bodily security he can be held to have done rightfully.” Dig. 1.1.3 (Florentinus, Institutes 1) (Alan Watson, trans., 1998). But “rightfully” is the condition that justifies the action. Dig. 1.1.1 (Ulpian, Institutes 1). “The basic principles of right are: to live honorably, not to harm any other person, [and] to render to each his own.” Dig. 1.1.10 (Ulpian, Rules 1) (emphasis added). Thus, “it is a grave wrong for one human being to encompass the life of another.” Dig. 1.1.3 (Florentinus, Institutes 1).
Centuries later, Thomas Aquinas likewise taught that the “act [of killing another in self-defense], since one‘s intention is to save one‘s own life, is not unlawful, seeing that it is natural to everything to
These elementary sources teach that persons have a fundamental right to use arms to preserve innocent human life. But this liberty cannot be used harm another human life, or to rebel against a just government. Taken together, these principles instruct that the natural right of self-preservation does not extend to bearing arms in a manner that undermines the common good.
B.
English practices applied and developed these principles. Blackstone pointed out that the right of all Englishmen to “hav[e] arms for [one‘s] defence” is rooted in “the natural right of resistance and self-preservation.” 1 Blackstone, Commentaries *143–44.11 It was a “birthright,” 1 Blackstone, Commentaries *140, that “appertain[ed] to every Englishmen,” id. at *136, an “ancient right[] and libert[y],” later codified by Parliament in the English Bill of Rights in 1689, see Bill of Rights, 1 W. & M. Sess. 2 c. 2 (“[S]ubjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.“). John Locke echoed similar points, explaining that “by the fundamental law of nature . . . one may destroy a man who makes war upon him . . . for the same reason that he may kill a wolf or a lion;
But English history reflects the ancient prohibition on men exercising their fundamental rights to intentionally harm the life or safety of another, or to rebel against a just government.
1. For example, kings prohibited using arms against the community, with violators subject to disarmament. Alfred the Great proscribed violent acts with arms.12 The Statute of Northampton, 2 Edw. 3, c. 3, followed in 1328 to address the dangers from “[b]ands of malefactors, knights as well as those of lesser degree,” that “harried the country, committing assaults and murders,” and the resulting “spirit of insubordination.” K. Vickers, England in the Later Middle Ages 107 (C. Oman ed., 4th ed. 1926); see also Edward Coke, The Third Part of the Institutes of the Laws of England 160 (London, M. Flesher 1644) (“For in those daies this deed of Chivalry was at random, whereupon great perill ensued . . . .“). To enforce the Statute, Edward III ordered sheriffs to investigate “the malefactors who have made assemblies of men-at-arms or have ridden or gone armed in his bailiwick, contrary to the statute and the king‘s proclamation.” Letter to 12 Keeper and Justices of Northumbridge (Oct. 28, 1332), reprinted in 2 Calendar of the Close Rolls, Edward III, 1330–1333 610 (H.C. Maxwell Lyte ed., London, Eyre & Spottswood 1898). The Statute allowed the sovereign to “punish people who go armed to terrify the King‘s subjects.” Sir John Knight‘s Case (1686) 87 Eng. Rep. 75, 76; 3 Mod. 117, 118 (KB). That was “likewise a great offence at the common law, as if the King were not able or willing to protect his subjects.” Id. The Statute of Northampton thus followed the path of the classical law, demonstrating the right to carry arms could not license a right to cause public terror. See Bruen, 597 U.S. at 45–46; United States v. Williams, 113 F.4th 637, 650 (6th Cir. 2024); Kanter v. Barr, 919 F.3d 437, 456–57 (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 597 U.S. at 70–71.
But the Statute did not displace the right of using arms for self-defense and continued the understanding that an individual “may not onely use force and armes” but also “assemble his friends and neighbors to keep his house against those that come to rob, or kill him, or to offer him violence.” The Third Part of the Institutes of the Laws of England, at 161–62. Use of force to oppose unlawful force is “by construction excepted out of this [Statute]” because the laws permit the taking up of arms against armed persons. Id. at 162 (“Armaque in Armatos sumere jura sinunt.“). As a result, individuals with the “intent to defend themselves against their adversaries, are not within the meaning of this Statute, because they do nothing in terrorem populi.” 2 William Hawkins, A Treatise of the Pleas of the Crown ch. 63, § 9, at 22 (7th ed. 1795).
another in the community would “do him a corporal injury, by killing, imprisoning[,] or beating him.” Id. at *255.
Accordingly, regardless of whether surety laws serve as proper historical evidence supporting disarmament before an individualized conviction of a violent crime, see Rahimi, 144 S. Ct. at 1938–42 (Thomas, J., dissenting), the surety system illustrates the long-standing idea that liberty cannot be used for lawless violence, consistent with the natural law principles prohibiting individuals from exercising their right to bear arms to tarnish the shared life or dignity of the community.
2. English law also curtailed the right to bear arms of individuals suspected of treason or sedition against the sovereign. The Militia Act of 1662 authorized officers of the Crown to disarm any individual that either a Lieutenant or two or more Deputies “judge[d] dangerous to the Peace of the Kingdome,” to “[s]ecure the Peace of the Kindgome.”
Similarly, the Game Act of 1670 imposed a property requirement for gun ownership, and effectively disarmed most commoners.
But arbitrary use of this power left James II exiled, William and Mary on the throne, and Catholics disarmed under Protestant rule. See
* * *
In sum, as reflected in the English Bill of Rights, bearing arms for self-defense was a fundamental right, originating from the laws of nature. But that right was restricted by laws prohibiting the use of arms to intentionally cause terror or harm to members of the community. And government could disarm classes of people that posed an actual risk of sedition or treason. These traditions follow the classicalprinciples of self-preservation, disallowance of public harm, and the elementary
C.
These principles are reflected in our Founding and the Second Amendment, exhibiting respect for the fundamental right to bear arms and its natural limitation that one must not use that liberty to subvert the common good.
Spanning from the colonial generation to the Founders, history reveals that bearing arms for self-defense is rooted in the natural law.15 Recounting British history, Samuel Adams noted that James II disregarded the “natural, inherent, divinely[,] hereditary[,] and indefeasible rights of [his] subjects,” but praised the English constitution for restoring the country‘s “original principles” and noted that the “bill of rights” “stands as a bulwark to the natural rights of subjects.” Samuel Adams, Boston Gazette, Feb. 27, 1769, at 3, col. 1. The natural right of self-defense was the core of John Adams‘s defense of the soldiers on trial for the Boston Massacre, contending that “every private person is authorized to arm himself, and on the strength of this authority, [he did] not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence.” 3 Legal Papers of John Adams248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); see also id. at 245 (“The rules of the common law therefore, which authorize a man to preserve his own life at the expence of another‘s, are not contradicted by any divine or moral law.“). Adams explained that the right of self-preservation “is not only our indisputable right, but our clearest duty, by the laws of nature, this is interwoven in the heart of every individual.” Id. at 244.
These principles influenced colonial America‘s collective declaration of independence from Great Britain.16
Following the Revolution, several states recognized a right to bear arms for self-defense rooted in the natural law. See The Right to Bear Arms, supra, at 147–52 (detailing the specific protections in Virginia, Pennsylvania, North Carolina, Vermont, and Massachusetts declarations of rights); Nicholas J. Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy 309–17 (Rachel E. Barkow et al., 3d ed. 2022) (same). So too with the
At the core of early America‘s robust regard of the right to bear arms was “the great natural law of self-preservation” that gives rise to the necessity “for the defence of one‘s person or house.” Collected Works of James Wilson 1142 (discussing the principles behind the Pennsylvania Constitution‘s protection of the right to bear arms that date back to the Saxon era, where individuals “were bound” “to keep arms for the preservation of the kingdom, and of their own persons“). Affirming what reason suggests, American law holds that “a man has a perfect right to his life, to his personal liberty, and to his property,” thereby permitting a man “by force [to] assert and vindicate those rights against every aggressor.” Essays of Justice Story, supra, at 262. But the right to possess arms for self-preservation has long been regulated to prohibit violence against the people, and violence against the State—the same the two limitations found in English history, and the classical tradition.
1. Laws prohibiting use of arms to cause terror to members of the community date back to colonial America. In 1736, a Justice of the Peace in Virginia provided that it is theduty of “[e]very constable, as a Minister of the Justice,” to “take away Arms from such who ride, or go, offensively armed, in Terror of the People, and may apprehend the Persons, and carry them, and their Arms, before a Justice of Peace.” George Webb, The Office and Authority of a Justice of Peace 92–93 (Williamsburg, William Parks 1736). Justices of the Peace in New Hampshire were instructed to do the same.17 If “legal proof of any such offence” was presented, the justice was permitted to “commit him to prison” and “cause his arms or weapons to be taken away.” Acts and Laws of His Majesty‘s Province of New Hampshire ch. 11 § 5 (1771). And colonial Massachusetts similarly prohibited “rid[ing] or go[ing] armed Offensively.” Mass. Province Laws ch. 18, § 6 (1692).
These laws, which essentially copied the Statute of Northampton, carried over into Founding-era America.18 Likethe original, these statutes prohibited persons from going armed to commit affrays or cause terror to the community.19 The English
2. Laws addressing danger to the State focused on groups viewed as disloyal to the government. Take Beacon‘s Rebellion in 1676, when the rebels in James City County were temporarily disarmed. See The Right to Bear Arms, supra, at 111–13; id. at 113 (“The restraint was only during the rebellion. Now every man may bear arms.“). And during the French and Indian War, Catholics who refused to swear an oath of undivided allegiance were prohibited from possessing “in his house or elsewhere” any “arms, weapons, gunpowder[,] orammunition.” 7 William Waller Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia 36–37 (Richmond, Franklin Press 1820).20 Why? Because “Protestant colonial governments feared that loyalty to the Pope would cause Catholics to take up arms for France.” United States v. Jackson, 85 F.4th 468, 471 (8th Cir. 2023) (Stras, J., dissenting from denial of rehearing en banc).
Unsurprisingly, the Revolutionary War led to widespread disarmament of loyalists. See Joseph G.S. Greenlee, Disarming the Dangerous: The American Tradition of Firearm Prohibitions, 16 Drexel L. Rev. 1, 61–63 (2024) (detailing eight orders and laws disarming loyalists to “suppress[]” “enemies to American Liberty,” one of which was issued by George Washington). In New York, “any person or persons” convicted of “having furnished the ministerial army or navy . . . with provisions or other necessaries . . . shall be disarmed.” Resolutions of September 1, 1775, reprinted in 1 Journals of the Provincial Congress, Provincial Convention, Committee of Safety and Council of Safety of the State of New York 131, 132 (Albany, Thurlow Weed 1842). South Carolina prohibited any person from “bear[ing] arms against” or“opposing the measures of the Continental or Colony Congress,” punishable by disarmament. Resolutions of March 13, 1776, reprinted in Journal of the Provincial Congress of South Carolina, 1776 77, 77 (London, J. Almon 1776). And Massachusetts disarmed any person convicted of “being notoriously inimical to the cause of American Liberty.” Resolutions of July 25 and July 26, 1776, reprinted in 1 American Archives: Fifth Series 588, 588 (Peter Force ed., 1848). All show that those who committed the specific offense of sedition or treason could be disarmed for a time.
3. Practices around the Founding reflect principles that allowed disarmament of individuals who endangered the community by physically harming another, and of individuals who exhibited dangerousness by seeking to overthrow the government. The Second Amendment‘s ratification process exhibits both the distinctiveness and enduring nature of these two principles. At their state ratifying conventions, Massachusetts,
Language proposed in Pennsylvania and Massachusetts reflects that those who breached the peace were proscribed from bearing arms. In Massachusetts, Samuel Adams drafted the following proposed amendment, “[T]hat the said Constitution be never construed to authorize Congress . . . toprevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Massachusetts Convention Journal (Feb. 6, 1788), reprinted in 6 The Documentary History of the Ratification of the Constitution 1452, 1453 (John P. Kaminski et al. eds., 2000) (emphasis added). “Peaceable citizens” were those who did not commit a “breach of the peace,” meaning those who did not “violat[e] . . . the public peace, as by a riot, affray, or any tumult which is contrary to law, and destructive to the public tranquility.” Breach, in 1 Noah Webster, An American Dictionary of the English Language (New York, S. Converse 1828). And in Pennsylvania, twenty-one of the twenty-three members who voted against ratification proposed the following amendment: “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in 2 The Documentary History of the Ratification of the Constitution 618, 623–24 (Merrill Jensen et al. eds., 1976) (emphasis added). The natural reading of these proposals is that “crimes committed” concern acts posing a “real danger of public injury.” Kanter, 919 F.3d at 456 (Barrett, J., dissenting). This reading accords with the natural law principle against taking innocent life that informs American firearm regulations.
In contrast, the language proposed by New Hampshire restricted the right to bear arms to those who had not engaged in rebellion: “Congress shall never disarm any Citizen, unless such as are or have been in actual Rebellion.” New HampshireForm of Ratification (June 21, 1788), reprinted in 28 The Documentary History of the Ratification of the Constitution 376, 378 (John P. Kaminski et al. eds., 2017) (emphasis added). Citizens who “are or have been in actual Rebellion” is not synonymous with all felons or criminals. This proposal targets individuals who committed the distinct crime of rebellion, which means “taking up Arms against the Supreme Power.” Rebellion, New Universal Etymological English Dictionary (20th ed. 1763). But New Hampshire‘s proposal “does not say anything about disarming those who have committed other crimes, much less nonviolent ones.” Kanter, 919 F.3d at 455 (Barrett, J., dissenting).
4. At least two distinct principles run continuous throughout history from Cicero to Founding-era America. First, the right to bear arms is not a license to physically harm another. Second, an individual cannot exercise that right to rebel against a just government ordered for the common good.
Many reasonable minds read this history to support a different answer, and only one broad principle: the legislature can categorically disarm anyone labeled “dangerous.”23 But that is too vague a conception of “dangerousness.” True, both ideas contain types of dangerous individuals, and both center on classifications designed, or at least recognized, by government. But the type of danger posed, and the punishment prescribed, makes the difference. Laws imposing class wide disarmament were enacted during times of war or civil strifewhere separate sovereigns competed for loyalty. See Jackson, 85 F.4th at 472 (Stras, J., dissenting from denial of rehearing en banc) (“[T]he decades surrounding the ratification of the Second Amendment showed a steady and consistent practice. People considered dangerous lost their arms. But being a criminal had little to do with it.“). And laws disarming an individual for dangerous conduct harming another member of the community centered on individualized review of specific acts.24 Combining these principles to reach a higher level of generality discounts the history and, most importantly, disregards the natural law principles explaining why we possess the right to bear arms.
We have wandered far from the reason and spirit of the Second Amendment. The first federal ban on felons possessing firearms arrived one hundred and forty-seven years after theAmendment‘s ratification. The Federal Firearms Act,
Such a law cannot be applied to Range who does not exhibit behavior intentionally threatening the life or safety of another. And there is no suggestion that Range threatens the government‘s existence with sedition or treason. So disarming him is unnecessary to ensure the physical safety of the community, or the continuity of government. See McWilliam, supra, at 158 (“[O]ne must ask not only whether the statute comports with the broader ius naturale principles, but also with the general principles specifically determined within the Second Amendment.“).
Because the majority correctly concludes that
PHIPPS, Circuit Judge, concurring.
I join the Majority Opinion in full because this case may be resolved on narrow grounds: there is no historical analogue for permanently disarming a citizen based on a prior conviction for food-stamp fraud.1 I write separately to point out additional important “principles that underpin our regulatory tradition,”2 specifically those related to the liberties of a free people. Application of these principles lends further support to the outcome in this case and in future cases will balance and safeguard the legal analysis so that it does not skew in favor of disarmament.
Appreciation of these principles begins with a recognition that the Founders were practical, prudent, and well-read.3
It is against these principles – deeply against them – to flog the historical record until it suggests some analogue or principle justifying disarmament, no matter how abstracted, attenuated, or ahistorical that analogue or principle may be. In particular, it is a mistake to read the Second Amendment as permitting the most extreme forms of disarmament in the history of England and colonial America. While the Founders adopted many venerable English legal principles and traditions, such as those developed at common law and in
equity,10 they broke ranks with the past in several respects. For instance, titles of nobility were used in England, but the Constitution expressly prohibits them.11 If that prohibition did not include titles of nobility that were part of the English historical tradition, then it would be close to meaningless. Similarly, the Second Amendment cannot be read to permit the extreme forms of disarmament used in England and colonial America while under British rule; the Founders rejected those forceful suppressions of their liberties.12 Nor do the disarmament measures taken by the American States during the Revolutionary War in response to a person‘s refusal to take a loyalty oath serve as useful analogues.13 As the Majority
Opinion explains, ‘the people’ entitled to the right to keep
From that perspective, I see no historical analogue for the lifetime disarmament of an otherwise free citizen. It is as ancient as it is obvious that a person who is imprisoned or otherwise confined does not have the right to bear arms for the duration of confinement. Similarly, non-confined citizens who are still within the criminal justice system through parole or supervised release may have their freedoms, including the right to bear arms, limited if justified as a penal measure. Critically, in those circumstances, the loss of the right to bear arms is effectuated through an adjudicative process with the availability of the full panoply of constitutional rights for the accused and the convicted - and there are procedures available to directly appeal and collaterally challenge any infringement of a constitutional right.14 But once a citizen repays his debt to society, a legislative restriction on the right to keep and bear arms based on nothing more than a prior conviction is without relevant historical antecedent.15 And legislation permanently disarming a
Thus, any law imposing a permanent restriction on “the right of the people to keep and bear Arms”17 is constitutionally suspect as a facial matter, and here, the application of
KRAUSE, Circuit Judge, concurring in the judgment, with whom ROTH, Circuit Judge, joins in part.
When this case was previously before us, I urged that we assess whether firearm regulations were constitutionally permissible in the present by comparing historical analogues in principle, not with precision. Hewing precisely to history and tradition would only make sense in a world where “arms” still meant muskets and flintlock pistols,1 and where communities were still small and “close-knit.”2 In contrast, the firearms of America today include semi-automatic handguns, assault rifles,3 and high-capacity magazines; our population of more than 330 million is mobile and far-flung; and, tragically, brutal gun deaths and horrific mass shootings-exceeding 490 this year-are a daily occurrence in our schools, our streets, and our places of worship.4 After observing that the balancing
Since then, the Supreme Court decided United States v. Rahimi, 144 S. Ct. 1889 (2024), and vacated and remanded our Court‘s en banc decision for reconsideration in light of its teachings.8 I take from Rahimi several lessons that compel a different rationale than the majority‘s today and that lead me now to concur in the judgment.
The first three confirm the premises of my prior opinion: (1) we should indeed determine “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition“-not whether it “precisely match[es] its historical precursors,” id. at 1898 (emphasis added); (2) the Second Amendment does permit “the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse,” id. at 1901 (emphasis added), and in particular, “prohibitions . . . on the possession of firearms by ‘felons and the mentally ill,‘” which the Court reiterated are “presumptively lawful,” id. at 1902 (quoting District of Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008)); and (3) the availability of a greater penalty for an analogous offense at the Founding implies that a lesser penalty is constitutional today, e.g., “if imprisonment was permissible” at the Founding for an offense, the
In addition, however, Rahimi also flagged two aspects of a dispossession law as constitutionally relevant: first, that the burden the law imposes has at least the potential to be “of limited duration,” and, second, that-notwithstanding the authority of legislatures to disarm entire “categories of persons” presumed dangerous in the first instance-the law allows an individual to challenge that presumption and establish that he does not currently “present a special danger of [firearm] misuse” or a “credible threat” to the safety of others. Id. at 1901-02.9
Notwithstanding these lessons, my colleagues in the majority have treated the Supreme Court‘s remand as essentially pro forma and file an opinion today that is largely unchanged. True, the majority now acknowledges that the relief it provides Range is only prospective protection from prosecution for “any future possession of a firearm,” and it seemingly acknowledges that
These aspects of the majority opinion are in error. I ultimately concur in the judgment, however, because Rahimi‘s reasoning persuades me that-even though our historical tradition supports
I write to clarify three points: First, the historical record reveals that, contrary to the majority‘s view, legislatures dating back to the Founding had the authority to disarm not just “physically dangerous” felons, but a wide range of groups considered to present a special danger, while also allowing for individual pre-enforcement challenges. Second, the majority‘s reasoning cannot be squared with Supreme Court and historical precedent, and its continued insistence on historical twins portends confusion and inconsistency among the district courts. And third, while we hold today that Range‘s declaratory judgment entitles him to protection only for future firearm possession, at least two circuits have suggested that successful as-applied challenges operate retroactively, making enforcement void ab initio and jeopardizing both pending
I. The Historical Validity of § 922(g)(1)
More than a decade of precedent now illuminates the constitutionality of felon-in-possession bans and the Supreme Court‘s methodology for reviewing them. The analysis that follows will (A) summarize the Court‘s pronouncements concerning those bans, (B) survey the relevant regulatory tradition, and (C) consider how
A. Felon-Dispossession Laws in the Court‘s Recent Precedent
Repeatedly, the Supreme Court has told us that felon-in-possession statutes are presumptively constitutional. In holding the “right of the people”12 protected by the Second Amendment was an “individual right,” Justice Scalia‘s seminal opinion in Heller specified this meant “the right of law-abiding, responsible citizens” to keep and bear arms, and therefore characterized “prohibitions on the possession of firearms by felons” as both “longstanding” and “presumptively lawful.”13 554 U.S. at 579, 592, 626, 627 n.26, 635.
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court clarified who qualifies as a “law-abiding” citizen when it explained that, despite the infirmity of New York‘s may-issue open-carry licensing regime, “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes . . . [,] which often require applicants to undergo a [criminal] background check” and “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.‘”14 597 U.S. 1, 38 n.9 (2022) (quoting Heller, 554 U.S. at 635). And it directed us, in considering whether modern-day regulations are consistent with historical ones, to compare “how and why the regulations burden a law-abiding citizen‘s right to armed self-defense.” Id. at 29 (emphasis added).
Most recently, in Rahimi, the Court reiterated that the Constitution does not prohibit regulations that ban “the possession of firearms by ‘felons and the mentally ill,‘” which the Court held “presumptively lawful” even as applied to the “core”15 right of self-defense inside the home. 144 S. Ct. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26). Citing Heller‘s own assurance about the presumptive constitutionality of felon-dispossession laws, the Court disavowed any suggestion “that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Id. at 1901. And it again told us to focus our historical analysis on “a law-abiding citizen‘s” right to bear arms. Id. at 1932 (Thomas, J., dissenting) (quoting Bruen, 597 U.S. at 29). Thus, time and again, the Supreme Court has acknowledged that the deep roots of felon-possession bans in American history impart a presumption of lawfulness to
As to methodology, Rahimi was also instructive, clarifying that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” 144 S. Ct. at 1898 (emphasis added), and that “if imprisonment was permissible” as a penalty for an offense at the Founding, “the lesser restriction” of disarmament imposed by a modern analogue “is also permissible,” id. at 1902. There, the Court derived the relevant principles from “two distinct legal regimes“-surety laws and going armed laws-“[t]aken together.” Id. at 1899, 1901. Even though the regulation at issue,
B. Relevantly Similar Historical Analogues
When we go to compare “relevantly similar” laws, “not all history is created equal.” Bruen, 597 U.S. at 34. Founding-era laws “surrounding the ratification of the text” are generally considered to be “the history that matters most,” Rahimi, 144 S. Ct. at 1924 (Barrett, J., concurring), because Second Amendment rights “are enshrined with the scope they were understood to have when the people adopted them,” Heller, 554 U.S. at 634-35. But we also look to “English history dating from the late 1600s, along with American colonial views leading up to the founding,” Bruen, 597 U.S. at 20, because the right to keep and bear arms was a “pre-existing right,” id. (quoting Heller, 554 U.S. at 592). In addition, post-enactment history and tradition “through the end of the 19th century” is a “critical tool” for determining the principles underlying the Second Amendment. Id. at 35 (quoting Heller, 554 U.S. at 605).16
Here, the Government identifies two sets of relevantly similar laws from which comparable principles can be derived: (1) laws that categorically disarmed entire classes of people, and (2) felony punishment laws. I address each below before comparing the principles derived from these analogues to
1. Categorical Disarmament Laws
a. England‘s Restoration and Glorious Revolution
During the late seventeenth century, the English government repeatedly disarmed individuals whose conduct indicated that they could not be trusted to abide by the sovereign and its dictates.
Following the tumult of the English Civil War, the restored Stuart monarchs disarmed nonconformist (i.e., non-Anglican) Protestants.17 Of course, not all nonconformists were dangerous; to the contrary, many belonged to pacificist denominations like the Quakers.18 However, they refused to participate in the Church of England, an
Protestants had their rights restored after the Glorious Revolution of 1688 replaced the Catholic King James II with William of Orange and Mary, James‘s Protestant daughter.22 But even then, Parliament enacted the English Bill of Rights, which declared: “Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.”23 This “predecessor to our Second Amendment,” Bruen, 597 U.S. at 44 (quoting Heller, 554 U.S. at 593), reveals that the legislature-Parliament-had the authority to decide who was law-abiding enough to keep and bear arms.24
In 1689, the pendulum of distrust swung the other way. Parliament enacted a statute prohibiting Catholics who refused to take an oath renouncing the tenets of their faith from owning firearms, except as necessary for self-defense.25 As with nonconformists, this prohibition was not based on the notion that every single Catholic was dangerous. Rather, the categorical argument English Protestants made against Catholicism at the time was that Catholics’ faith put the dictates of a “foreign power,” namely the Vatican, before English law.26 Accordingly, the disarmament of Catholics in 1689 reflects Protestant fears that Catholics could not be trusted to obey the law.
That restriction could be lifted only prospectively and on an individual basis. That is, Parliament permitted Catholics who “repeated and subscribed” to the necessary oath before “any two or more Justices
b. Colonial America
The English notion that the government could disarm those not considered law-abiding traveled to the American colonies. Although some of the earliest firearm laws in colonial America forbid Native Americans and Black people from owning guns,29 the colonies also repeatedly disarmed
full-fledged members of the political community as it then existed—i.e., free, Christian, white men—who the authorities believed could not be trusted to obey the law. Those restrictions are telling because they were imposed at a time before the advent of the English Bill of Rights, when the charters of Virginia and Massachusetts provided unprecedented protections for colonists’ firearm rights.30
The Virginia Company carried out one of the earliest recorded disarmaments in the American colonies in 1624. For his “opprobrious” and “base and detracting speeches concerning the Governor,” Richard Barnes was “disarmed” by the Virginia Council and “banished” from Jamestown.31 By disrespecting the colonial authorities, Barnes demonstrated that he could no longer be trusted as a law-abiding member of the community and thus forfeited his ability to keep arms.
During the late 1630s, a Boston preacher named Anne Hutchinson challenged the Massachusetts Bay government’s authority over spiritual matters by advocating for direct, unconstitutional laws, as well as their premise that one’s race or religion correlates with disrespect for the law. I cite them here only to demonstrate the tradition of categorical, status-based disarmaments. See Blocher & Ruben, supra note 1, at 165 (urging courts examining historical disarmament laws that would violate the Constitution today to “ask[] why earlier generations disarmed certain groups of people, rather than asking only whom they disarmed”). personal relationships with the divine.32 Governor John Winthrop accused Hutchinson and her followers of being Antinomians—those who viewed their salvation as exempting them from the law—and
Again, however, restoration of the right to bear arms was available, but only prospectively, and only for individuals who affirmatively sought relief: Hutchinson’s followers who renounced her teachings and confessed their sins to the authorities “were welcomed back into the community and able to retain their arms,” as they had shown that they could once again be trusted to abide by the law.36
Like the Stuart monarchs in England, the Anglican colony of Virginia disarmed nonconformist Protestants in the 1640s due to their rejection of the King’s sovereign power over religion. When a group of nonconformist Puritans from Massachusetts resettled in southeastern Virginia, Governor William Berkeley “acted quickly” to head off any “[o]pposition to the king” by disarming them.37 And after the Glorious Revolution, the American colonies followed England’s example by disarming their Catholic residents.38
The colonies redoubled the disarmament of Catholics during the Seven Years’ War of 1756–1763 based on their perceived unwillingness to adhere to the King’s sovereign dictates.39 Maryland, for example, though founded as a haven for persecuted English Catholics,40 confiscated Catholics’ firearms and ammunition during the war.41
Again, these generalizations led to overinclusive bans. Not all Catholics posed a threat of misusing their firearms. That said, these laws reveal that legislatures had the authority to disarm every member of a group based on class-wide presumptions about law-abiding behavior. And under each regime, Catholics who violated the ban and were caught in possession of arms—whether or not they were dangerous—were subject to severe penalties.
To account for this overbreadth, colonial governments provided individual Catholics with the opportunity to prospectively restore their armament rights by persuading a government official that they themselves were unlikely to misuse firearms. A Catholic in Virginia who “desire[d] to submit and conform” could “present himself before the justices of the peace,” and upon taking a loyalty oath “in open court,” would “thenceforth be discharged of and from all disabilities and forfeitures, which he might or should be liable to for the future.”45 Similarly, a Catholic in Maryland who persuaded a local justice of the peace that he was law-abiding and not dangerous could keep weapons necessary for the defense of his home.46 But Catholics under these regimes had to affirmatively regain their right to possess arms before violating the disarmament law. Those discovered possessing firearms without first lifting their firearm disability would be arrested, imprisoned without bail, forced to forfeit all their weapons, and subjected to onerous fines.47 In short, the restoration of armament rights during the Colonial era occurred through pre-enforcement actions, which provided prospective relief to law-abiding challengers who complied with the disarmament law and demonstrated that they did not pose a risk of misusing arms.
c. Revolutionary War
As the colonies became independent states, legislatures continued to disarm individuals whose status indicated that they
Drawing on Locke, state legislatures conditioned their citizens’ ability to keep arms on compliance with that civic obligation, and several states enacted statutes disarming all those who refused to recognize the sovereignty of the new nation.51 In Connecticut, for instance, as tensions with England rose, concerns that loyalists could not be trusted to uphold their civic duties as members of a new state culminated in a 1775 statute that forbid anyone who defamed resolutions of the Continental Congress from keeping arms, voting, or serving as a public official.52
In 1776, most of the states heeded the Continental Congress’s call to disarm those who “are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, the[] United Colonies, against the hostile attempts of the British fleets and armies,”53 by disarming those who did not take a loyalty oath or were suspected of being disloyal.54
George
Pennsylvania in particular passed a flurry of laws disarming entire groups whose status suggested they could not be trusted to follow the law. In 1776, Pennsylvania ordered the blanket disarmament of all “non-associators,” regardless of whether they were disaffected to the cause of liberty.56 The following year, it gave all adult males an ultimatum—swear a loyalty oath or “be disarmed” by local authorities.57 In 1778, Pennsylvania amended the act to require all adult males who refused or neglected to take an oath to “deliver up [their] arms” to the state.58 Those who failed to comply and were caught “carry[ing] . . . or keep[ing] any arms or ammunition in [their] house or elsewhere” faced forfeiture of their arms and disarmament which “continue[d] for and during the life of the . . . offender.”59 Finally, in 1779, it authorized local officials to disarm “any person” they “suspected to be disaffected to the independence of this state.”60
These statutes are especially illuminating because Pennsylvania’s 1776 constitution strongly protected the people’s right to bear arms.61 See Heller, 554 U.S. at 600–01 (relying on Pennsylvania’s “analogous arm-bearing right[]” to “confirm[]” its interpretation of the Second Amendment); Williams, 113 F.4th at 654 n.11 (“As of 1776, the Pennsylvania Constitution protected the right to keep and bear arms, so pre-Founding examples
These class-wide disarmament statutes from the Revolutionary War era shared three characteristics with the group-based disarmament laws of the past. First, Revolution-era legislatures categorically disarmed entire groups of people believed to be dangerous, likely to misuse firearms, or inclined to behave unlawfully. These broad generalizations inevitably led to under- and over-inclusive regulatory schemes. Pennsylvania’s loyalty oath, for example, failed to ferret out Benedict Arnold’s treachery66 while simultaneously precluding many peaceful and non-dangerous people from possessing arms.
Second, individuals disarmed by these revolutionary-period statutes could prospectively regain their rights by proving to a government official that they no longer posed a danger of misusing firearms. In Connecticut, persons reported as “inimical” to the revolutionary cause were “disarmed and not allowed to have or keep any arms,” but only until they persuaded the local “civil authority, selectmen, and committees of inspection” that they were “friendly to this and the other United Colonies.”67 Suspected non-associators in South Carolina who successfully “convince[d]” the committee on safety that they “sincerely desire[d] to join in support of the American cause” would have their “arms . . . restored.”68 Non-associators in Massachusetts could have their right to bear arms restored by “order of” the “general court” or “committees of correspondence, inspection or safety.”69 Males older than sixteen in New Hampshire could retain their arms despite failing to take a loyalty oath if they provided the legislature with “satisfactory reasons” for their
Third, the burden was on members of a disarmed class to rebut the class-wide presumption of firearm misuse before possessing a firearm, and those who violated disarmament laws without first satisfying the steps to lift their disability prospectively faced serious consequences. For example, a disaffected South Carolinian who was “found in possession of arms or ammunition” without first having his rights restored by a legislative committee would “again be disarmed” and, this time, also imprisoned.72 And statutorily disarmed males in Pennsylvania who were caught in possession before having taken a loyalty oath before a justice of the peace were imprisoned, “prosecute[d],” required to “forfeit [their] arms and ammunition to the state,” fined “double the value” of their forfeited possessions, and disarmed for “life.”73
d. Ratification Debates
It is apparent from the debates around ratification that the Founders believed the Second Amendment permitted legislatures to disarm serious criminals.
The debates between the Federalists and Anti-Federalists in Pennsylvania “were among the most influential and widely distributed of any essays published during ratification.”74 Those essays included “The Dissent of the Minority,” a statement of the Anti-Federalist delegates’ views75 that proved “highly influential” for the Second Amendment.76 Heller, 554 U.S. at 604. The Dissent of the Minority proposed an amendment stating:
[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.77
While these amendments were not adopted,79 they “reveal a great deal about the Second Amendment.” Williams, 113 F.4th at 655; see Heller, 554 U.S. at 604 (relying on the “minority proposal in Pennsylvania” and “Samuel Adams’ proposal”). The Second Amendment codified a “pre-existing,” “venerable,” and “widely understood” right, making it unlikely that “different people of the founding period had vastly different conceptions” of its scope. Heller, 554 U.S. at 603–05. The Anti-Federalist proposals thus reflect the understanding of the Founding generation—particularly among those who favored enshrining the right to bear arms in the Constitution—that “crimes committed,” whether dangerous or not, justified disarmament.80
e. Post-Ratification Tradition
The historical tradition of legislatures disarming categories of people whom they considered unfit to possess firearms continued into the nineteenth century.81 As the concerns from the Revolutionary War faded into the past, so did the disarmament laws targeting perceived disloyal Americans. But the pernicious tradition of prohibiting slaves and Native Americans from possessing firearms persisted,82 and as worries of slave uprisings grew, many citizens feared that freedmen were untrustworthy or inclined to misuse firearms. See Williams, 113 F.4th at 656. Antebellum era legislatures responded with a familiar
Like the earlier categorical bans, these statutes unquestionably swept in many peaceable, trustworthy, and law-abiding Americans who posed no danger of misusing their firearms. A few were absolute,84 but nearly all of these laws allowed a freedman to make an individualized showing that he was not apt to misuse firearms, and, if successful, to receive a certificate or a license restoring his right to possess arms.85
Delaware, for example, made it unlawful for a freedman to “have, own, keep or possess any gun, pistol, sword or any warlike instruments whatsoever.”86 But a freedman could seek the resumption of that right by submitting an application to the local justice of the peace, and if “five or more respectable and judicious citizens” certified that the freedman was a “person of fair character,” the justice of the peace could “issue a license” authorizing the freedman to “keep or possess” a gun.87 In Florida, a local judge could grant a freedman’s application if “two respectable citizens of the county [certified] to the peaceful and orderly character of the applicant.”88 And a freedman in Maryland could possess a firearm if “at the time of his” possession, he had “a certificate from a justice of the peace, that he is an orderly and peaceable person.”89
Also consistent with the prior categorical disarmament laws, restoration under these Antebellum regimes was always prospective, and freedmen had to demonstrate that they did not fit the class-wide generalization of misusing firearms before possessing a firearm in violation of a disarmament statute.90 If a freedman was caught
With the enactment of the
categories of persons thought by legislatures to present a “special danger of [firearm] misuse,” Rahimi, 144 S. Ct. at 1901, continued into the Reconstruction Era and the Gilded Age. Most states restricted the sale of firearms to, or the possession of firearms by, persons under the age of eighteen or twenty-one.93 Over a dozen states disarmed vagrants, often referred to as “tramps.”94 Many states prohibited drunks from purchasing or carrying guns.95 And several states banned the sale of arms to mentally ill persons.96
Although the “who,” “how,” and “why,” Rahimi, 144 S. Ct. at 1898, underlying these categorical disarmament laws somewhat differed from their historical counterparts, “19th-century courts and commentators,” Heller, 554 U.S. at 603, viewed these laws as constitutional. A “massively popular” nineteenth-century treatise written by “the most famous” voice on the Second Amendment at the time, Heller, 554 U.S. at 616, explained that some groups were “almost universally excluded” from exercising certain civic rights, including “the idiot, the lunatic, and the felon, on obvious grounds,” and that states “may prohibit the sale of arms to minors.”97
These laws, like those of earlier decades, were unquestionably overbroad. Not every freedman, drunk, beggar, minor, or mentally ill person had a propensity to misuse firearms. To the contrary, many members of these disarmed classes likely posed no greater danger of firearm misuse than their fellow citizens who retained their armament rights. Yet state high courts routinely upheld these categorical disarmaments as consistent with their state constitutional rights to bear arms,98 which were understood to be coextensive with the Second Amendment.99 For example, despite observing that some tramps were “less . . . vicious than others,” the Ohio Supreme Court nonetheless found a state law categorically disarming “tramps” consistent with the state constitutional right to keep and bear arms because the right “was never intended as a warrant for vicious persons to carry weapons with which to terrorize others.” State v. Hogan, 58 N.E. 572, 575 (Ohio 1900).
In sum, these post-ratification laws, like the colonial ones preceding them, show that legislatures were empowered to disarm entire groups based on prevailing judgments about which categories of people posed “a special danger of misu[ing]” firearms. Rahimi, 144 S. Ct. at 1901. Although the targeted groups changed over time, as did the legislatures’ precise calculus for disarming them, the three features of those colonial-era laws remained constant. First, every categorical disarmament law was overbroad—sweeping in law-abiding people who were not dangerous, violent, untrustworthy, or unstable—yet they comported with the Second Amendment. Second, these laws almost universally provided some mechanism for members of a disarmed class to prospectively lift their disability by persuading an executive or judicial official that the class-wide presumption of likely firearm misuse did not apply to them. Third, if a member of a disarmed class violated these disarmament laws without first affirmatively lifting the disability, he was penalized accordingly. Thus, prospective relief was limited to those who abided by the ban unless and until demonstrating that they no longer (if ever) presented a special danger to others.
2. Criminal Punishment
Rahimi teaches that if a greater deprivation of rights was permissible as a penalty for an offense in the relevant past, the “lesser restriction” of disarmament is also permissible in a modern-day regulation. See 144 S. Ct. at 1902. With that precept in
a. English Law and Colonial America
In eighteenth-century England, the standard penalty for a felony—even for non-violent felonies like fraud and forgery—was death and forfeiture of land, goods, and chattels, and executed felons traditionally forfeited all their firearms, as well as the rest of their estate, to the government.100 That practice persisted in the American colonies and the Early Republic—those who committed serious felonies, both violent and non-violent, were executed and subject to permanent estate forfeiture.101
Individuals who committed less serious crimes also lost their firearms on a temporary, if not permanent, basis. Virginia punished a person convicted for “base” and “opprobrious” speech by ordering him “disarmed” and declaring him ineligible to exercise “any priviledge or freedom” in the colony.102 The Massachusetts Bay Colony disarmed individuals for merely supporting someone who was convicted of a crime.103 One New York law “disarmed” anyone who was “convicted” of “oppos[ing] or deny[ing]” colonial or local authority, or “dissuad[ing]” others “from obeying the recommendations” of the Continental or colonial Congress,104 while another punished those who counterfeited state bills of credit with life imprisonment and the forfeiture of their entire estate, including firearms.105 South Carolina “disarmed” persons “upon due conviction” of “opposing the measures of the Continental or Colony Congress.”106 In Hampshire County, Massachusetts, “all persons . . . convicted of being notoriously inimical to the cause of American Liberty” were “disarmed.”107 And in Connecticut, anyone “duly convicted” of “libel[ing] or defam[ing]” any acts of the Continental Congress or the Connecticut General Assembly was “disarmed and not allowed to have or keep any arms.”108
Alternatively, where legislatures stipulated that certain offenses were not punishable
Of particular relevance are the Founding-era felonies most similar to Range‘s crime of defrauding the government—forgery, counterfeiting, fraud, and theft—which, in many jurisdictions, were punishable by death from the Colonial era through the Revolutionary War.113
Although the majority suggests that the death penalty soon fell out of use for such offenses,114 historical records show otherwise. In 1790, the First Congress made counterfeiting and forgery capital offenses.115 On December 14, 1792, within a year of the ratification of the Bill of Rights, Georgia passed an “An Act for the More Effectually Preventing and Punishing Forgery,” which penalized fraud, counterfeiting, and forgery with death.116 Five days later, the General Assembly of Virginia passed an “Act[] for Punishing Persons Guilty of Certain Thefts and Forgeries,” which added forgery, counterfeiting, and theft to the list of nonclergyable capital offenses.117 In New York, people convicted
while Alabama made forgery, counterfeiting, fraud, and other crimes of deceit capital offenses in 1807.121
To be sure, a few states dispensed with capital punishment for forgery, counterfeiting, and other crimes of deceit in the decade following ratification.122 But a handful of “outlier” laws from the Early Republic does not negate what had become a regulatory tradition. Bruen, 597 U.S. at 70; id. at 46 (expressing “doubt that three colonial regulations could suffice to show a tradition“). And concluding from the laws of a few more lenient jurisdictions that the Constitution precluded more severe penalties not only ignores the historical reality in other jurisdictions, but also wrongly “assumes that founding-era legislatures maximally exercised their power to regulate.” Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring).
Regardless, the inference drawn by the majority from this history—that Founding-era legislatures lacked authority to permanently punish non-violent felons—is mistaken. Instead, the statutes cited by the majority prove that even when the most progressive states in our Early Republic dispensed with the death penalty for certain crimes, they continued to exercise their authority to permanently punish non-violent felons. For example, Connecticut, as the majority points out, ended capital punishment for counterfeiting and forgery in 1784.123 But rather than being executed, twice-convicted forgers and counterfeiters in Connecticut were imprisoned and “kept to hard Labour during the Term of his or her natural Life,” while Connecticut continued to punish other non-violent crimes like perjury with death.124 New York likewise experimented with eliminating capital punishment for these non-violent crimes. In 1786, its legislature passed a law punishing those who counterfeited state bills of credit with life imprisonment and complete
b. Post-Ratification Tradition
As the Nation‘s footprint expanded to the south and the west, legislative authority to permanently disarm non-violent criminals followed in tow. Although some states continued to execute thieves, counterfeiters, forgers, and fraudsters until the mid-nineteenth century,128 other legislatures, during the Era of Good Feelings, transitioned to stripping these non-law-abiding citizens of fundamental rights.
In 1820, one of the Nation‘s early leading lawyers and “best known” proponents of abolishing capital punishment, Edward Livingston, was tasked with preparing a systematic code of criminal law for Louisiana.129 At the time, Louisiana‘s laws consisted of a “medley of laws and customs” from France, Spain, and English common law that often imposed harsh and unequal punishments, including death for non-violent crimes.130 Livingston‘s proposed codes, which brought “moderation to the system of crimes and punishments,”131 eliminated the death penalty for many crimes—including forgery, perjury, and fraud. Capital punishment was replaced with the lesser punishments of “imprisonment” and the “suspension” and permanent “forfeiture” of “political or civil rights“—including the “right of bearing arms.”132 Under Livingston‘s
Many contemporaries concurred with Livingston‘s proposals to deprive convicts of only certain rights—including the right to bear arms—instead of extinguishing all of their rights through capital punishment. His work won wide acclaim from such Founders as Jefferson, Madison, and Story.134 Chief Justice Marshall, who read one of these codes “with attention and interest,” likewise saw no constitutional concerns, writing in a letter to Livingston: “Among your penalties a deprivation of civil and political rights is frequently introduced. I believe no former legislator has relied sufficiently on this provision; and I have strong hopes of its efficacy.”135
Although Livingston‘s codes were not ultimately adopted, the Supreme Court has repeatedly relied on his proposed model legal codes for Louisiana and then for the United States as evidence of the types of laws that would have been considered permissible at the Founding.136 And Livingston‘s proposal to punish certain non-violent felons with permanent disarmament is consistent not only with Founding-era penalties that explicitly or necessarily deprived non-violent felons of their right to bear arms, but also, as social mores continued to evolve, laws in the early 1800s that permanently stripped non-violent felons of other fundamental rights.137
Alabama, for instance, deprived “any person . . . convicted of bribery, forgery, [or] perjury” from exercising several fundamental rights, including holding state office, serving as a juror, or voting in any election.138 In Missouri, convicted forgers, embezzlers, counterfeiters, fraudsters, bribers, and thieves could not serve as witnesses or jurors, vote, or hold public office.139 And while Indiana continued to punish horse thieves and recipients of stolen horses with death, it deprived those who committed or helped commit perjury,
In sum, before, during, and for a period even after the dawn of our Republic, felons convicted of crimes of deceit could face death, life imprisonment, civil death, and deprivation of their fundamental rights because they were presumed to permanently pose a special risk of danger to society.141 And the categorical disarmament laws show that legislatures could prophylactically disarm such categories of people, subject to individual applications for a restoration of rights.142 With those regulatory traditions in mind, we next consider the constitutionality of § 922(g)(1) as applied to Range.
C. Section 922(g)(1) as Applied to Range
No doubt, the categorical disarmament laws and felony punishment laws are “two distinct legal regimes” and
1. Section 922(g)(1) Generally Comports with Regulatory Tradition
In comparing a challenged regulation with the principles underlying its historic analogues, “[w]hy and how the regulation burdens the right are central to th[e] inquiry.” Id.
As for the “why,” four centuries of unbroken Anglo-American history shows that legislatures consistently disarmed entire categories of people who were presumed to pose a special risk of misusing firearms. Only after an individual made the requisite showing to a government official—rebutting the class-wide presumption of firearms misuse—was the disability on the individual‘s right to possess firearms lifted. The Founding generation understood that felons—who could be sentenced to death or life imprisonment, stripped of their fundamental rights, including their right to arms143—were one such group. It is no wonder that Rahimi, citing to Heller‘s assurance of the presumptive constitutionality of felon-in-possession bans, repudiated the “suggest[ion] that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Id. at 1901.
At the Founding, the purpose of capital punishment and life imprisonment for certain crimes of deceit, akin to Range‘s fraud offense, “was threefold: deterrence, retribution, and penitence.” Diaz, 116 F.4th at 469. Those purposes continued to animate the early nineteenth century laws stripping such felons of other fundamental rights.144 The justification for
Founding determined that certain non-violent felons, including those who committed fraud offenses like Range‘s, should be prohibited from possessing firearms, “Congress’ judgment that a convicted felon . . . is among the class of persons who should be disabled from . . . possessing firearms because of potential dangerousness is rational.” Lewis v. United States, 445 U.S. 55, 67 (1980). Moreover, like the felony punishment laws of our nascent Republic that imposed punishments necessarily encompassing disarmament,
As to the “how,”
Although
respect in which the regime it establishes—in practice—does not comport with the “how” of these relevantly similar historic regulations. As I read Rahimi, that qualification obligates us to consider and ultimately grant Range‘s request for declaratory relief.
Under categorical disarmament laws, where an individual was presumed to pose a special risk to society by virtue of his membership in a particular group and thus was lawfully disarmed as an initial matter, there was typically a mechanism for him to petition and attempt to rebut that presumption—whether by taking a loyalty oath, renouncing allegiance, obtaining a license, or securing a court order.148
Even for offenses historically punishable by death or lifetime imprisonment, and hence, encompassing permanent disarmament, that punishment followed individualized determinations made by a judge and jury, and a convicted felon could also seek clemency or a pardon based on his individual circumstances.149
And for both the categorical disarmament laws and the commutation of a permanent deprivation of liberty, the burden was on the petitioner to demonstrate that the class-wide presumption of dangerousness was inapplicable to him individually.150 In short, our regulatory tradition—as well as Rahimi‘s attention to the individualized findings required by and the durational limit of the restriction in that case—reflects that where disarmament is based on a categorical presumption of special danger to society, there must be a meaningful opportunity for individualized review to survive constitutional scrutiny.
The necessity of such individualized review was evidently not lost on Congress when it enacted
The problem is that the statutory mechanisms legislated by Congress are not, in practice, meaningfully available. True,
In the absence of other channels for individualized review, the doors to the federal courthouse must be open.157
Neither our historical tradition nor our modern understanding of the Second Amendment as an “individual right”158 permits us to blindly defer to a categorical presumption that a given individual permanently presents a special risk of danger without the opportunity for him to rebut it.159 Even so, Congress’ judgment that a felon “might be
Evaluating whether a felon has met that burden is not an unfamiliar exercise for federal judges. In rendering decisions about the possession of a firearm as a condition bail pending trial, district courts consider “the nature and circumstances of the offense charged, including whether the offense is a crime of violence,” and determine whether the defendant poses a risk of “danger” to the public.
Applying these factors here, the strength of the record precludes the need for remand. Unlike the majority—which places the burden on the Government not only to show that Range committed a felony, giving rise to the presumption that he poses a special risk of firearm misuse, but also to establish that he continues to pose that risk—I believe that historical tradition, see supra Section I.B, along with Supreme Court precedent, see Lewis, 445 U.S. at 61 (observing that the lifting of
Nearly thirty years have passed since Range‘s predicate conviction—a non-violent offense involving a relatively small amount of funds—and besides a single summary offense for fishing without a license and a few minor traffic infractions, all evidence suggests that Range has been a law-abiding citizen in the intervening decades. Importantly, Range has complied with
II. The Majority‘s Methodological Flaw
Unmoved on remand by Rahimi‘s call to principles-based analogical reasoning, my
Rahimi, as even the majority acknowledges, calls for examination of “the principles underlying our Nation‘s history and tradition of firearm regulation,” Maj. Op. at 5, not for a regulation that “precisely match[es] its historical precursors,” Rahimi, 144 S. Ct. at 1898. Because our law is not “trapped in amber” and “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” relevantly similar historical laws are sufficient to uphold a modern firearm regulation. Id. at 1897–98. Bruen also cautioned that the Second Amendment does not impose “a regulatory straightjacket” by requiring a “historical twin,” and it explained that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” 597 U.S. at 30.
Yet how else would one describe the majority‘s opinion other than a doomed quest for historical dead ringers? Confronted with the Founding-era practice of imposing the far more severe penalty of death and life imprisonment for the offenses most analogous to welfare fraud—including fraud, forgery, counterfeiting, perjury, and theft—the majority responds that the permanent loss of all rights is not analogous to “the particular . . . punishment at issue here—de facto lifetime disarmament.”161 To Rahimi‘s admonition that the greater punishment includes the lesser and the historical reality that the Founding-era punishments for offenses like Range‘s necessarily subsumed the lesser punishment of permanent forfeiture of firearms, the majority avers that offenses less serious than Range‘s were punishable by temporary rather than life sentences, enabling those offenders to reacquire arms upon their release from custody.162 To laws that categorically disarmed a wide range of groups “like Loyalists, Native Americans, Quakers, Catholics, and Blacks,” the majority dismisses their relevance as directed at those “bearing arms against” the country.163 To the historical reality that such laws extended beyond those “bearing arms” to well-known pacifists like the Quakers, the majority decries such analogies as inconsistent with modern-day understandings of the First and Fourteenth Amendments.164 And to the “why” and “how” those laws restricted these particular groups—total disarmament of all members of “groups they distrusted“—the majority answers that those laws “do[] nothing to prove that Range is part of a similar group today.”165
But the historical analogy is patently obvious: Congress disarmed felons precisely because it determined that such persons “may not be trusted to possess a firearm without becoming a threat to society.‘” Dickerson, 460 U.S. at 112
Indeed, the only analogue the majority declares sufficient—a Founding-era statute that imposed the same “particular”167 restriction for the same length of time on the same group of people as the modern-day law168—calls for nothing less than a “historical twin.”169 The majority admits as much when, confronting the fact that the First Congress made forging and counterfeiting a public security a capital offense, it asserts that Range‘s crime of making false statements to steal public funds—though admittedly analogous—could hypothetically be “more analogous” to other fraud offenses that carried a lesser punishment.170 The majority thus thrusts on the Government the insurmountable burden of finding an identical Founding-era offense that imposes “the particular (and distinct) punishment” of lifetime disarmament for each and every felony covered by
At bottom, my colleagues have prescribed a methodology of examining historical practices in isolation and rejecting them if they deviate in any respect from contemporary regulations. But for all the analogues they reject, they decline to adopt any articulable methodology of their own. And not for lack of options. Our sister circuits have taken divergent but principled approaches to adjudicating challenges to
The closest the majority comes to adopting a coherent methodology is its approving reference to that of the Sixth Circuit in Williams.172 In several respects, I agree with Williams. Much like the approach I proposed in my prior dissent173 and that I espouse today, the Sixth Circuit derived from historical analogues the “relevant principle” that “when the legislature disarms on a class-wide basis, individuals must have a reasonable opportunity to prove that they don‘t fit the class-wide generalization,” 113 F.4th at 661, and because the government historically could “require individuals in a disarmed class to prove they aren‘t dangerous in order to regain their right to possess arms,” it concluded that “in an as-applied challenge to
At that point, however, the Sixth Circuit took a different turn and asserted that a defendant could raise that challenge in an effort to dismiss a
But there should be no ambiguity on that score, and the majority opinion creates more questions than it answers. As I explain below, requiring a pre-enforcement challenge as a condition of protection from prosecution under
III. The Benefits of Our Prospective Approach Relative to the Sixth Circuit‘s
Any approach that would apply post hoc determinations about the constitutional application of
A retrospective mode of analysis defies not just logic, but also the Due Process Clause, which guarantees that a “person of ordinary intelligence [must have] a reasonable opportunity to know what is prohibited, so he may act accordingly.”176 But particularly where (as with the majority here) courts continue to demand a precise historical analogue, offenders cannot possibly know in advance of a court‘s ex post determination whether possessing a firearm post-indictment will be deemed a constitutional entitlement or a federal felony.
Looking to “dangerousness,” as the Sixth Circuit did, still fails to give adequate notice about what
After all, previous attempts by federal courts to define “violent felony,” e.g., for purposes of the Armed Career Criminal Act, yielded “repeated attempts and repeated failures to craft a principled and objective standard [for that term,] confirm[ing] its hopeless indeterminacy.”178 Those efforts proved so futile that the Supreme Court held in Johnson v. United States that the “violent felony” provision “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges,” thus violating due process.179 If
Holding
But a test that turns on a court‘s post hoc determination that
Additionally, a retroactive approach has sweeping implications for state felon-in-possession restrictions. By making application of felon-in-possession statutes void ab initio, the retroactive approach permits felons to raise the same Second Amendment challenges to state regulations as they can to their federal counterpart, leaving state felon-in-possession statutes susceptible to the same patchwork constitutionality as
Finally, anything short of requiring a pre-enforcement challenge severely undermines law enforcement efforts and makes the FBI‘s National Instant Criminal Background Check System (NICS) obsolete. Currently, NICS includes over five million felony conviction records,184 and that number continues to grow as additional agencies contribute records to the NICS database.185
An indeterminant, post hoc test for which felons fall outside
And, without a functional background check system, how do firearms licensees (FFLs) comply with federal law? Where as-applied challenges can render
B. Requiring a Declaratory Judgment Avoids These Pitfalls
Holding
Second, limiting relief in as-applied
Third, making a declaratory judgment a prerequisite to avoiding
received favorable declaratory judgments, Congress’s decision to disarm felons would remain intact. Also, state statutes restricting felons’ firearms rights would be generally enforceable, ensuring local communities’ concerns and values continue to shape when felons are permitted to possess firearms under state law.
Finally, a prospective approach avoids the potentially debilitating effect on law enforcement, U.S. Attorney’s Offices, and
ascertain from a background check whether a felon can purchase weapons.
Without clearly limiting as-applied challenges to prospective relief, we put our citizenry at risk for tragic consequences: a flood of motions to dismiss indictments, appeals, and reversals of
IV. Conclusion
For the foregoing reasons, I respectfully concur in the judgment.
ROTH, Circuit Judge, concurring in judgment with whom KRAUSE and CHUNG, Circuit Judges join in part.
The Supreme Court has consistently and repeatedly reaffirmed Congress’s presumptive power to limit felons’ rights to possess firearms.1 The facial constitutionality of
situations. I am convinced that, in the case of a nonviolent, reformed offender, the loss of the right to possess firearms should not be de facto permanent. Over two decades have passed since Range completed his sentence for obtaining public welfare funds by misrepresentation—two decades during which he has demonstrated law-abiding, peaceful behavior and shown his possession of firearms would not pose any danger to the public. The ban of
The government and our sister circuits have presented an exhaustive survey of statutes that set forth an unmistakable Anglo-American tradition of categorical disarmament.3 As the sources provided by the government make clear, from English
kings to the 20th century, governments have disarmed the peaceable and dangerous alike with varied justifications.4
If the government’s proposed analogues are evidence of a historical tradition underlying the Second Amendment, then the legislature’s power to categorically disarm is undeniably broad. In enacting
But the government’s historical analogues show that Congress has the power only to suspend the right to possess firearms—not to de facto permanently remove it.9 The
government offers two types of historical analogues to support the duration of
support a principle of temporary categorical bans, they are not wholly “relevantly similar” to
The government identifies a second set of historical analogues to support the de facto permanence of
In short, the government’s two strands of analogues establish a historic principle of imprisoning (and thereby disarming) in response to a felony conviction for a period of time that depended on the offense committed, as well as temporarily disarming categories of people that a legislature deemed to pose a danger of firearm misuse. Together, these two principles reflect that felons can be disarmed under
also consistent with the Second Amendment’s protections against unfettered legislative discretion in disarming “the people.”15 This approach also aligns with the Supreme Court’s repeated statements that felon bans are presumptively lawful.16
Range’s success will likely open the floodgates for similar pre-enforcement challenges. These Bruen challenges are a costly, time-consuming solution for the fact-specific determination of whether an individual still presents a threat of public injury. Cabining the timeframe during which felons may be disarmed will allow courts and individuals alike to readily assess when rearmament is permitted,17 obviating a need for
assessing each modern offense individually and comparing it against Founding-era analogues on a case-by-case basis.18
a risk of danger to the public if his gun rights were restored.19
For these reasons, I respectfully concur in the judgment.20
SHWARTZ, Circuit Judge, dissenting, with whom RESTREPO, Circuit Judge, joins.
Today, the Majority of our Court has again decided that an individual convicted of fraud cannot be barred from possessing a firearm. While the Majority states that its opinion is narrow, the analytical framework it applies to reach its conclusion could be read to render most, if not all, felon bans unconstitutional. However, the Supreme Court has reiterated that such bans are presumptively lawful, see United States v. Rahimi, 144 S. Ct. 1889, 1902 (2024), and because there is a historical basis for them, I respectfully dissent.
In New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022), the Supreme Court set forth a history-based framework for deciding whether a firearm regulation is constitutional under the Second Amendment. Courts must now examine whether the “regulation [being reviewed] is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. To make this determination, a court must decide whether the challenger or conduct at issue is protected by the Second Amendment and, if so, whether the Government has presented “relevantly similar” historical analogues to justify the restriction. See id. at 24, 29; see also Rahimi, 144 S. Ct. at 1898 (same).
The Majority’s analysis is inconsistent with the Supreme Court’s jurisprudence and has far-reaching consequences. First, the Majority downplays the Supreme Court’s consistent admonishment that felon bans are “longstanding” and “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). In
Heller and McDonald, the Supreme Court stated that felon bans are consistent with our historical tradition. Heller, 554 U.S. at 626-27; McDonald, 561 U.S. at 786. More recently, majorities of the Court have reiterated that felon bans are presumptively lawful, and notably did so, respectively, in (1) the very case (Bruen) that explicitly requires courts to find historical support for every firearm regulation, see Bruen, 597 U.S. at 17; and (2) in a case (Rahimi) that upheld a firearm restriction after applying Bruen’s history and tradition test, see Rahimi, 144 S. Ct. at 1902; see also Bruen, 597 U.S. at 72 (Alito, J., concurring) (explaining that Bruen did not “disturb[] anything” the Court said in Heller or McDonald); id. at 81 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” (first alteration in original) (quoting Heller, 554 U.S. at 626)); id. at 129 (Breyer, J., dissenting, joined by Sotomayor, J., & Kagan, J.) (“I understand the Court’s opinion today to cast no doubt on . . . Heller’s holding [regarding longstanding prohibitions.]“); Rahimi, 144 S. Ct. at 1902-03 (reiterating Heller’s holding that felon bans are presumptively lawful and assigning error to the Court of Appeals for the Fifth Circuit for “requir[ing] a ‘historical twin’ rather than a ‘historical analogue‘“); id. at 1923 (Kavanaugh, J., concurring) (noting Heller identified felon bans as a “categor[y] of traditional exceptions to the [Second Amendment] right“).1
These statements show that felon bans have historical roots.2 See United States v. Jackson, 110 F.4th 1120, 1125-26 (8th Cir. 2024) (upholding the constitutionality of the federal felon ban as applied to a non-violent drug offender based, in part, on the Supreme Court’s statements); see also Vincent v. Garland, 80 F.4th 1197, 1202 (10th Cir. 2023) (giving effect to the Supreme
1293 (11th Cir. 2024) (noting the Supreme Court has not doubted the constitutionality of felon restrictions).
Second, the Majority incorrectly discounts the importance of the Supreme Court’s emphasis on law-abidingness as a limitation on the Second Amendment right. While the Majority dismisses this language as “dicta,” Maj. Op. at 12, the Bruen Court’s use of the phrase fourteen times in the majority opinion alone highlights the significance that this criterion played in its decision, see Bruen, 597 U.S. at 9, 15, 26, 29-31, 33 n.8, 38, 38 & n.9, 60, 70-71; see also Jackson, 110 F.4th at 1126 (noting Bruen’s repeated statements about a law-abider’s right to possess arms).3 Indeed, the Bruen Court approved of certain gun regulations that included criminal background checks. Bruen, 597 U.S. at 38 n.9. While the Majority suggests we are “overread[ing]” the phrase “law-abiding,” Maj. Op. at 9, 12, there is no question that one who has a felony or felony-equivalent conviction could not be characterized as law-abiding. Thus, the Supreme Court’s jurisprudence tells us that the right to bear arms is limited to law-abiders, and that felon bans are presumptively lawful.
Third, the Majority acknowledges but then disregards important aspects of Bruen. The Bruen Court emphasized that its test should not be a “regulatory straightjacket” and that
courts should look for a “historical analogue” to the challenged regulation, not a “historical twin.” 597 U.S. at 30 (emphasis omitted).4 Rahimi underscored this point, as it specifically reversed the Fifth Circuit for requiring the latter. 144 S. Ct. at 1897-98, 1903 (holding that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791” and that the Court’s recent Second Amendment precedents “were not meant to suggest a law trapped in amber“). Despite these instructions, the Majority demands a historical twin by requiring the Government to identify a historical crime, including its punishment, that mirrors Bryan Range’s conviction. At the founding, a fraud-based crime of the type Range committed was considered a capital offense, which obviously carries with it the loss of all possessory rights.5 Folajtar v. Att’y Gen., 980 F.3d 897, 904-05 (3d Cir. 2020) (collecting authorities). As a result, history demonstrates that fraudsters could lose their life, and hence their firearms rights. Rahimi specifically blessed this type of comparative reasoning. See Rahimi, 144 S. Ct. at 1902 (finding “permissible”
historical analogue to the lesser consequence of permanent disarmament absent the death penalty. See United States v. Diaz, 116 F.4th 458, 469 (5th Cir. 2024) (“[I]f capital punishment was permissible to respond to theft, then the lesser restriction of permanent disarmament that
The Majority also rejects the analogy to now unconstitutional status-based bans on Native Americans, Blacks, Catholics, Quakers, loyalists, and others because Range is not “part of a similar group today.” Maj. Op. at 20. Whether Range is a member of one of these groups is irrelevant. Rather, under Bruen, the relevant inquiry is why a given regulation, such as a ban based on one’s status, was enacted and how that regulation was implemented. Bruen, 597 U.S. at 29; see also Rahimi, 144 S. Ct. at 1898 (focusing the inquiry on the historical “reasons” for disarmament); id. at 1925 (Barrett, J., concurring) (“‘Analogical reasoning’ under Bruen demands a wide[] lens: Historical regulations reveal a principle, not a mold.“). No matter how repugnant and unlawful those bans are under contemporary standards, the founders categorically disarmed the members of those groups because they were viewed as disloyal to the sovereign. Range v. Att’y Gen., 53 F.4th 262, 273-82 (3d Cir. 2022) (per curiam) (collecting authorities), vacated, 56 F.4th 992 (3d Cir. 2023),
cert. granted, judgment vacated and remanded, 144 S. Ct. 2706 (Mem) (2024); see also Jackson, 110 F.4th at 1127 (observing that the founding-era categorical prohibitions are relevant “in determining the historical understanding of the right to keep and bear arms“). The felon designation similarly serves as a proxy for disloyalty and disrespect for the sovereign and its laws. Such categorization is especially applicable here, where Range’s felony involved stealing from the government, a crime that directly undermines the sovereign.7 Therefore, the trust
Finally, the Majority’s approach will have far-reaching consequences. Although the Majority states that its holding is “narrow” because it is limited to Range’s individual circumstances, Maj. Op. at 24, the only individual circumstance the Majority identifies is that the penalty Range faced differs from the penalty imposed for a similar crime at
“ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others[,]” id. at 1898. Therefore, Rahimi is best read as conclusively establishing that history and tradition support disarming violent individuals, but not reaching whether history and tradition likewise permit disarmament of nonviolent offenders as that issue was undisputedly not before the Court. Indeed, the Court went out of its way to state that it was “not suggest[ing] that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse[,]” id. at 1901, which today includes fraudsters, see
the founding. As discussed above, Rahimi bolsters the view that such fact is irrelevant under Bruen. Thus, the Majority’s ruling is not cabined in any way and, in fact, rejects all historical support for disarming non-violent felons. As a result, the Majority’s analytical framework leads to only one conclusion: there will be no, or virtually no, non-violent felony or felony-equivalent crime that will bar an individual from possessing a firearm.9 Rahimi counsels that cannot be
I therefore respectfully dissent.