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 Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:20-CV-03488); District Judge: Honorable Gene E.K. Pratter
Peter A. Patterson [Argued]
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Michael P. Gottlieb
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401
Counsel for the Appellant
Joseph G. S. Greenlee
Firearms Policy Coalition Action
5550 Painted Mirage Road
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.
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.
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 food stamps in violation of Pennsylvania law. See
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.
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 Government conceded that four of the five factors favored Range because he was convicted of a nonviolent, non-dangerous misdemeanor and had not been incarcerated. Id. at 614. But the District Court held the “cross-jurisdictional consensus” factor favored the Government because about 40 jurisdictions would have classified his crime as a felony. Id. at 614–15. Noting that our decisions in Holloway, 948 F.3d at 177, and Folajtar v. Att’y Gen., 980 F.3d 897, 900 (3d Cir. 2020), had rejected as-applied challenges to
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.
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 the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628–29.
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;
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
We begin with the threshold question: whether Range is one of “the people” who have Second Amendment rights. The Government contends that the Second Amendment does not apply to Range at all because “[t]he right to bear arms has historically extended to the political community of law-abiding, responsible citizens.” Gov’t En Banc Br. at 2. So
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
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 opinion in Kanter v. Barr, in which she persuasively explained that “all people have the right to keep and bear arms,” though the legislature may constitutionally “strip certain groups of that right.” 919 F.3d 437, 452 (7th Cir. 2019).
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
At root, the Government’s claim that “felons are not among ‘the people’ protected by the Second Amendment,” see Gov’t Range II En Banc Br. 9 n.1, devolves authority to legislators to decide whom to exclude from “the people.” We reject that approach because such “extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” Folajtar, 980 F.3d at 912 (Bibas, J., dissenting). And that deference would contravene Heller’s reasoning that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 554 U.S. at 636; see also Bruen, 597 U.S. at 26 (warning against “judicial deference to legislative interest balancing“).
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
Even if the 1938 Act were “longstanding” enough to warrant Heller’s assurance—a dubious proposition given the
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
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.”
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.
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
For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation‘s historical tradition of firearms regulation support depriving Range of his Second Amendment right to possess a firearm.13 See Rahimi, 144 S. Ct. at 1898; Bruen, 597 U.S. at 17.
* * *
Our decision today is a narrow one. Bryan Range challenged the constitutionality of
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
I.
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,”
Absent exploration of the natural principles that support our legal tradition, we overlook those “certain primary truths, or first principles, upon which all subsequent reasonings must depend.” The Federalist No. 31, at 193 (Alexander Hamilton) (C. Rossiter ed., 1961). In other words, an appropriate historical inquiry cannot be conducted while blind to the “reason and spirit” of the law, 1 Blackstone, Commentaries *61, which provided for its validity and natural purpose.5
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;
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
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
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 keep itself in ‘being,’ as far as possible.” Summa Theologica, supra, pt. II-II, q. 64, art. 7. But killing a just or innocent is wrong because “the life of the righteous men preserves and forwards the common good.” Id. art. 6, resp. Aquinas also noted that the fundamental right to defense did not extend to tumultuously rising up against the government in opposition to the “unity and peace of a people.” Id. q. 42, art. 1. “[S]edition is contrary to the unity of the multitude.” Id. q. 42, art. 2. Citing to Augustine, Aquinas
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.
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; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence.” John Locke, Second Treatise of Government, § 16 (1690). This 11
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
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).
Along with prohibiting affrays, the English surety system dating back to the Saxons also grounded the right to
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 classical
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 Adams
These principles influenced colonial America‘s collective declaration of independence from Great Britain.16
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 the
These laws, which essentially copied the Statute of Northampton, carried over into Founding-era America.18 Like
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[,] or
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
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, New Hampshire, and Pennsylvania each proposed limiting language to the Second Amendment arguably tied to dangerousness. See Kanter, 919 F.3d at 454 (Barret, J., dissenting) (noting that “each of these proposals included limiting language arguably tied to criminality“).21
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 . . . to
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 Hampshire
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. Penalty for acting adverse to either principle often amounted to disarmament.22 These principles are the hallmark of our Nation‘s firearm regulations.
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 strife
D.
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 the
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
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 They
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
Opinion explains, ‘the people’ entitled to the right to keep and bear arms consists only of citizens. So, a person who did not wish to belong to the new American nation would hardly have been one of ‘the people’ entitled to keep and bear arms. In sum, the most relevant historical principles for disarming a citizen are those grounded in the more stable and enduring aspects of our legal tradition, such as the common law and equity - as opposed to the principles underlying the excesses of the Crown or Parliament or even those supporting Revolutionary War measures in response to persons who retained foreign allegiances.
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
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 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
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
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
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,
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
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
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
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 institution headed by the King as a matter of English law.19 And nonconformists
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
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
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”).
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
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
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
c. Revolutionary War
As the colonies became independent states, legislatures continued to disarm individuals whose status indicated that they could not be trusted to obey the law. John Locke—a philosopher who profoundly influenced the American revolutionaries48—argued that the replacement of individual judgments of what behavior is acceptable with communal
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
George Washington approved of these disarmament laws and stated that “the other colonies ought to adopt similar” measures.55
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
These statutes are especially illuminating because Pennsylvania’s 1776 constitution strongly protected the
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
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
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
[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
And, at the Massachusetts convention, Samuel Adams, a prominent Anti-Federalist, proposed an amendment that the Constitution shall “never [be] construed . . . to prevent the people . . . who are peaceable citizens, from keeping their own arms.”78 “Given the Anti-Federalists’ vehement opposition” to
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
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
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
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
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,
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
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 mind, the numerous historical laws punishing non-violent, as well as violent, felons with death, life imprisonment, estate forfeiture, and permanent loss of certain other civil rights show that an indefinite deprivation of the right to bear arms is
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
Alternatively, where legislatures stipulated that certain offenses were not punishable by death or life imprisonment,
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
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
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
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,
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
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
As to the “how,”
2. Range‘s Pre-Enforcement Challenge
Although
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
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
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 colleagues in the majority continue to demand that the Government produce a precise historical match to
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
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 (emphasis added) (quoting Lewis, 445 U.S. at 63). In this way,
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
The closest the majority comes to adopting a coherent methodology is its approving reference to that of the Sixth
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. Consequences of the Sixth Circuit‘s Retroactive Approach
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
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 Prior felony convictions are by far the most common reason individuals fail NICS background checks.186 And the Supreme Court in Bruen endorsed the use of background checks, for violent and non-violent offenses alike, to ensure individuals bearing firearms are “law-abiding” citizens. See 597 U.S. at 38 n.9.
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
First, declaratory judgment proceedings give effect to the Court‘s oft-repeated instruction that felon-possession bans are “presumptively lawful,”190 while respecting that the Government bears the initial burden to “demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation.”191 Once the Government establishes
Second, limiting relief in as-applied
Third, making a declaratory judgment a prerequisite to avoiding
Finally, a prospective approach avoids the potentially debilitating effect on law enforcement, U.S. Attorney’s Offices, and our background check system. Currently, felons can submit documentation to the FBI through a voluntary appeal file application, including “information regarding an expungement, restoration of firearm rights, pardon, etc.”194 Successful applicants receive a unique personal identification number to prevent future background check denials.195 Thus, a felon who secures a prospective declaratory judgment can simply submit that judgment to the FBI to prevent false positives on his background check when next purchasing firearms. Then, just as they do today, law enforcement and prosecutors could depend on NICS for data when deciding whom to charge with violating
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
I write separately to focus on two aspects of Range’s circumstances: the permanent loss of his right to bear firearms, and the necessity of an efficient path to resolve similar
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
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
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
Range long ago completed the punishment that Pennsylvania deemed appropriate for his crime: three years of probation, a $100 fine, $288.29 in costs and $2,458 in restitution. The statutory maximum punishment for his offense—five years—has long passed, and he has shown, through years of good behavior, that he does not present a threat to the public. Congress’s justification for suspending his ability to possess a firearm no longer applies. The Second Amendment requires restoration of his rights. He should be permitted to petition for restoration upon a showing that his maximum sentence has expired and that he would not present
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
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
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),
“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
I therefore respectfully dissent.