UNITED STATES OF AMERICA v. JESUS PEREZ-GARCIA; UNITED STATES OF AMERICA v. JOHN THOMAS FENCL
No. 22-50314, No. 22-50316
United States Court of Appeals for the Ninth Circuit
March 18, 2024
D.C. No. 3:22-cr-01581-GPC-2, D.C. No. 3:21-cr-03101-JLS-1; Argued and Submitted January 26, 2023 San Francisco, California
FOR PUBLICATION
Appeal from the United States District Court for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Janis L. Sammartino, District Judge, Presiding
Before: Kim McLane Wardlaw, Richard R. Clifton, and Gabriel P. Sanchez, Circuit Judges.
Opinion by Judge Sanchez
SUMMARY*
Criminal Law
In consolidated appeals from district court orders subjecting two defendants (Appellants) to a condition of pretrial release that temporarily barred them from possessing firearms pending trial, the panel denied Appellants’ motion to dismiss the appeals as moot, and provided its full rationale for its previous order affirming the district court‘s orders.
The panel declined to dismiss the appeal as moot for four reasons: the case is not moot in the jurisdictional sense, the opinion is not advisory, equity weighs in favor of denying the motion, and dismissal would likely force later panels to duplicate the panel‘s efforts while confronting the exact same issues.
Appellants contended that the pretrial firearm condition violates their Second Amendment rights under New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022). Disagreeing, the panel held that the
COUNSEL
Zachary Howe (argued), Daniel E. Zipp, and Patrick C. Swan, Assistant United States Attorneys, United States Attorney‘s Office, San Diego, California, for Plaintiff-Appellee.
Katherine M. Hurrelbrink (argued), Assistant Federal Public Defender, Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.
Daniel L. Kaplan, Assistant Federal Public Defender; John M. Sands, Federal Public Defender, District of Arizona; Federal Public Defender‘s Office, Phoenix, Arizona; Carmen Smarandoiu, Appellate Chief; Jodi Linker, Federal Public Defender, Northern District of California; Federal Public Defender‘s Office, San Francisco, California; for Amici Curiae Ninth Circuit Federal Public and Community Defenders.
Ellora T. Israni and Ryan Downer, Civil Rights Corps, Washington, D.C., for Amicus Curiae Civil Rights Corps.
Adam Kraut, Second Amendment Foundation, Bellevue, Washington; Joseph G.S. Greenlee, FPC Action Foundation, Las Vegas, Nevada; C.D. Michel, Michel & Associates P.C., Long Beach, California; John W. Whitehead, The Rutherford Institute, Charlottesville, Virginia; for Amici Curiae Firearms Policy Coalition, FPC Action Foundation, Second Amendment Law Center, California Rifle & Pistol Association, Second Amendment Foundation, Rutherford Institute, and Cato Institute.
OPINION
SANCHEZ, Circuit Judge:
John Thomas Fencl was arrested after police officers found more than 110 guns in his house, including 10 unregistered and untraceable “ghost guns,” 4 silencers, and 3 short-barreled rifles. Officers also uncovered thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade. Jesus Perez-Garcia was arrested following a customs inspection at the United States-Mexico border. He was the passenger in a car in which officers found approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl. Both men were charged with multiple felony offenses.
Consistent with the
In these consolidated appeals, Appellants Fencl and Perez-Garcia contend that the pretrial firearm condition violates their Second Amendment rights under New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022). We disagree. We conclude that the Government has met its burden of showing that Appellants’ temporary disarmament is consistent with our nation‘s historical tradition of firearm regulation. We previously affirmed the district courts’ orders on that basis, see Order Dated January 26, 2023, and we now provide our full rationale.
I.
John Fencl was arrested in June 2021 after officers found more than 110 guns in his house. Discovered in the search were 10 “ghost guns,” 4 silencers, 3 short-barreled rifles, and thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade. This was not Fencl‘s first transgression for unlawful gun possession. He pleaded guilty to a misdemeanor firearm offense in 2019 after officers arrested him for unlawful possession of a concealed firearm without a license. He was arrested again in April 2021 for possession of a concealed firearm, a privately made ghost gun, while he was on probation. A few months after his June 2021 arrest, Fencl was charged with felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers in violation of
Fencl sought pretrial release, which the magistrate judge granted at a bond hearing. His release was subject to various conditions, including the following: “The defendant must not possess or attempt to possess a firearm, destructive device, or other dangerous weapon” and “must legally transfer all firearms, as directed by Pretrial Services.”1 The firearm condition effectively barred Fencl from possessing any firearms pending his trial. Shortly after the Supreme Court decided Bruen, Fencl filed a motion challenging the constitutionality of the firearm condition. He sought to remove the condition so that he could carry guns when he traveled out of state for work and to protect his home. The magistrate judge denied his motion, and the district court affirmed.
In June 2022, Perez-Garcia was arrested following a customs inspection at the United States-Mexico
These consolidated appeals followed. We have jurisdiction pursuant to
II.
Before reaching the merits of Appellants’ claims, we address Appellants’ motion to dismiss their consolidated appeals on the basis of mootness. The Government opposes the motion. We decline to dismiss the appeals for the reasons explained below.
In December 2022, Perez-Garcia and Fencl filed appeals of the denials of their respective motions to modify their conditions of pretrial release under
immediate ruling is warranted” and noting that “[a]n opinion will follow in due course“).3
Fencl and Perez-Garcia moved to dismiss their appeals as moot after we ruled against them but before we provided our reasoning. In the time since we filed our dispositive order on January 26, 2023, Fencl was convicted at trial and Perez-Garcia‘s bond was revoked for repeatedly failing to appear for hearings.4 Because neither Fencl nor Perez-Garcia remain on pretrial release, they contend that we now lack jurisdiction to explain our dispositive order because their challenges to their pretrial release conditions are moot.
We have explained that “[t]here is a significant difference between a request to dismiss a case or proceeding for mootness prior to the time an appellate court has rendered its decision on the merits and a request made after that time.” Armster v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 806 F.2d 1347, 1355 (9th Cir. 1986). The former scenario implicates limitations on our constitutional power because Article III does not give federal courts constitutional authority to decide moot cases. See id. But when mootness arises after a “valid decision” has already been rendered, “we are not precluded from exercising [A]rticle III power.” Id. Rather, we may exercise our discretion to determine whether the case should
be dismissed based on equitable and pragmatic considerations. See United States v. Payton, 593 F.3d 881, 885 (9th Cir. 2010); Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 590 F.3d 725, 728 (9th Cir. 2009).5
We deny Appellants’ motion to dismiss for four reasons. First, the case is not moot, at least in the jurisdictional sense. We already heard and conclusively resolved the merits of Appellants’ appeal in a dispositive order, and no party disputes that we had jurisdiction when we decided this case. An event occurring “after our decision had been rendered does not deprive this court of jurisdiction retroactively.” Dickens v. Ryan, 744 F.3d 1147, 1148 (9th Cir. 2014) (en banc) (alterations adopted and internal quotation marks omitted); see also Humphreys v. Drug Enf‘t Admin., 105 F.3d 112, 115 (3d Cir. 1996) (denying motion to dismiss appeal where the court “heard and determined the merits of the appeal” when “there was indisputably a live controversy between the parties“).
Second, this opinion is not advisory because it addresses “properly presented questions concerning . . . specific constitutional rights.” Armster, 806 F.2d at 1355. By publishing the reasoning underlying our prior order, we merely explain the basis for our decision and do not take further action on the merits of Appellants’ claims. We are
not the only appellate court to follow this practice. See, e.g., Romeu v. Cohen, 265 F.3d 118, 122 (2d Cir. 2001) (explaining a prior order that denied a Puerto Rico resident‘s request for a New York absentee ballot even though the election took place months before the opinion issued); United States v. Int‘l Bhd. of Teamsters, 955 F.2d 171, 174 (2d Cir. 1992) (publishing opinion promised in prior order despite termination of dispute following issuance of the order); Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 839 F.2d 1296, 1299–1301 & n.1 (8th Cir.) (explaining a prior order that permitted an election to proceed months after the election took place), cert. denied, 488 U.S. 869 (1988).
The Second Circuit has explained that this appellate practice of bifurcating an expedited order with its reasoning is common, often necessary, and constitutional. See Hassoun v. Searls, 976 F.3d 121, 129 & n.4, 130 (2d Cir. 2020) (“Because the court‘s opinion explained its previous order—which addressed a live case or controversy—the opinion was not advisory.“); In re Grand Jury Investigation, 399 F.3d 527, 528 n.1 (2d Cir. 2005). We agree. Our decision to publish this opinion to explain a prior order that fully adjudicated the merits of Appellants’ claims does not render the opinion advisory.6
We are also mindful that dismissal at this stage could incentivize parties to strategically prevent the publication of a decision adverse to their interests. Here, Appellants seek dismissal only “[a]fter seeing the proverbial writing on the wall” in our previously filed expedited order. Naruto v. Slater, 888 F.3d 418, 421 n.3 (9th Cir. 2018). Allowing parties to file appeals “seek[ing] the benefits of a favorable judicial decision“—and using considerable public resources in the process—only to later obtain dismissal to “escape some of the more significant adverse consequences of an unfavorable judgment,” would not serve the interests of justice or judicial economy. Armster, 806 F.2d at 1356; see also Albers v. Eli Lilly & Co., 354 F.3d 644, 646 (7th Cir. 2004) (per curiam) (“One good reason to exercise discretion against dismissal is to curtail strategic behavior.“).
Pacific Lumber was an “aggrieved” party with standing to request an appellate court to vacate statements made by the lower court after it had rendered judgment in Pacific Lumber‘s favor. Id. We answered in the affirmative and remanded to the lower court to vacate its statements on the merits made after it entered judgment dismissing the case as moot. Id. at 1077. We said nothing about an appellate court‘s discretionary authority after rendering a decision on the merits but before a mandate issues. See Armster, 806 F.2d at 1355.
Fourth, and finally, dismissal would not be pragmatic because it would likely force later panels to duplicate our efforts while confronting the exact same issues. In light of the extensive and complicated historical analysis the Second Amendment now demands, cases involving Second Amendment challenges to temporary pretrial conditions could resolve before an appellate court has the opportunity to issue a thorough opinion. See Bruen, 597 U.S. at 111 (Breyer, J., dissenting) (explaining how the difficulties attendant to extensive historical analysis are “especially acute” in the lower courts, which have fewer research resources, less assistance from amici historians, and higher caseloads). If we do not resolve this issue now, we might preclude efficient judicial review of a likely recurring constitutional challenge to application of the
III.
The district courts’ authority to impose conditions on Appellants’ pretrial release stems from the
The
The
to protect the public and secure the attendance of the accused at trial. See id. at 887-88 (Bybee, J., dissenting).
IV.
Appellants contend that the
The Government argues that the
government‘s interest in preventing danger and flight. Id. at 750-51; see also id. at 748 (“We have repeatedly held that the Government‘s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual‘s liberty interest.“). Salerno then rejected the argument that the Eighth Amendment only allows the government to restrict bail solely based on the defendant‘s risk of flight. See id. at 753-55. Salerno “intimate[d] no view on the validity of any [other] aspects of the Act.” Id. at 745 n.3.
The Government argues that because Salerno already held that the Government‘s regulatory interest in community safety authorizes pretrial detention—which is a total deprivation of liberty—it follows that any lesser deprivations of liberty, such as the firearm pretrial release condition at issue here, must also pass constitutional muster if reasonably necessary to prevent danger to the community. Just as an indictment can justify restrictions on Fourth, Fifth, and Sixth Amendment rights, the Government contends, “then [it] can also justify the restriction of a defendant‘s Second Amendment rights as a temporary and judicially authorized condition of pretrial release.” As the Government sees it, Bruen did not alter the balance Salerno already struck nor require that courts accord Second Amendment rights special consideration. The Government invites us to “uphold the challenged condition without proceeding further” under a Bruen analysis.
The Government reads too much from Salerno. In upholding the
be permitted under an interest-balancing analysis. Nor does Salerno‘s due process analysis impose a one-size-fits-all model of constitutional inquiry on all challenges to conditions of pretrial detention or release under the
For example, when a criminal defendant in Scott challenged their pretrial release condition authorizing suspicionless searches or drug testing, we applied traditional Fourth Amendment analysis to assess whether these conditions were unreasonable searches or seizures. See, e.g., Scott, 450 F.3d at 868-69. Similarly, when a class of pretrial detainees challenged a pretrial detention condition requiring them to expose their body cavities as a part of a strip search in Bell, the Supreme Court applied traditional Fourth Amendment analysis to these claims. See Bell v. Wolfish, 441 U.S. 520, 558 (1979). In Bell, the Supreme Court also applied First Amendment analysis to a different claim involving a pretrial detention condition prohibiting detainees from receiving hardback books. See id. at 550.
On the other hand, when a class of undocumented pretrial detainees raised a substantive due process challenge to an Arizona law that categorically forbade them from obtaining any form of bail or pretrial release, we applied Salerno‘s interest-balancing substantive due process
After all, Appellants contend that the
V.
Fencl and Perez-Garcia challenge the
The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
recognized that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. 597 U.S. at 9-10.
The Supreme Court has repeatedly emphasized, however, that “the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626; see also Bruen, 597 U.S. at 21; McDonald, 561 U.S. at 786. The Court has recognized, for example, that legislatures may ban “dangerous and unusual weapons” because the Second Amendment does not guarantee an unlimited right to possess every kind of weapon. Heller, 554 U.S. at 627. Similarly, legislatures may ban weapons in “sensitive places” because the Amendment does not guarantee an unlimited right to carry weapons in every kind of place. Id. at 626; Bruen, 597 U.S. at 30.
So too may legislatures regulate who may possess weapons in the first place. In particular, the Court has recognized a historical tradition of disarming individuals who are not “law-abiding, responsible citizens.” Heller, 554 U.S. at 635. To that end, Heller specifically identified “longstanding prohibitions on the possession of firearms by felons and the mentally ill” as non-exhaustive “examples”
In Bruen, the Supreme Court again reaffirmed Heller‘s and McDonald‘s holding that the Second Amendment protects “the right of an ordinary, law-abiding citizen to possess a handgun in the home.” Bruen, 597 U.S. at 9-10. The Bruen court agreed with the plaintiffs in that case that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.” Id. At the same time, Bruen clarified that text, history, and tradition are the “[o]nly” avenues to justify a firearm regulation. Id. at 17. The Supreme Court did so after we and other circuit courts—following Heller and McDonald—coalesced around a two-step framework for analyzing Second Amendment challenges that combined historical analysis with means-end scrutiny. See, e.g., Young v. Hawaii, 992 F.3d 765, 783-84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022).
Bruen rejected this two-step approach and adopted a two-step approach of its own. Rejecting the use of means-end scrutiny, the Bruen court instead instructed us to apply the following framework to Second Amendment claims: We first consider whether the Second Amendment‘s plain text covers an individual‘s proposed course of conduct. Bruen, 597 U.S. at 24. If so, the Second Amendment presumptively protects that conduct. Id. The Government then bears the burden of justifying the challenged regulation by showing that it is consistent with our nation‘s “historical tradition of firearm regulation.” Id. Only then may we conclude that the regulation is constitutional. With this framework in mind, we turn to Appellants’ claims.
A.
The threshold question in a Second Amendment claim is whether the Amendment presumptively protects the individual‘s conduct. Id. In Bruen, the Supreme Court
approached this question by asking whether the petitioners were among “the people” within the plain meaning of the Second Amendment and then asking whether the plain text of the Amendment encompasses the individuals’ “proposed course of conduct.” Id. at 31-32.8
In concluding that Fencl and Perez-Garcia are among the people who have Second Amendment rights, we pause to highlight a lingering ambiguity in the caselaw. The text of the Second Amendment refers to the right of “the people” to keep and bear arms.
As then-Judge Barrett explained while dissenting in Kanter v. Barr, some courts read the Supreme Court‘s Second Amendment caselaw to mean that there are certain groups of people—for example, violent felons or the mentally ill—“who fall entirely outside the Second Amendment‘s scope,” meaning that they do not fall within even the plain text of the Amendment. 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen, 597 U.S. at 17.11 Other courts instead “maintain that all people have the right to keep and bear arms but that history and tradition support Congress‘s power to strip certain groups of that right.” Id.12
In Fencl‘s case, both the magistrate judge and the district court followed the first approach and held that Fencl is not a responsible, law-abiding citizen because he was “charged with unlawful possession of firearms based on a finding of probable cause.” Under this view, Fencl “falls outside the scope” of the Second Amendment. Similarly, the magistrate judge in Perez-Garcia‘s case denied his request, in part, on the ground that he is
Although Appellants are pretrial releasees, they remain members of the national community—that is, they fall within the plain meaning of “the people“—and they are therefore not without the ability to invoke their constitutional right. See Heller, 554 U.S. at 580. The
As to Fencl, specifically, we cannot conclude that his prior misdemeanor conviction or arrests should operate to categorically exclude him from the national community. While the Supreme Court has identified a longstanding tradition of prohibiting convicted felons from possessing guns, it has never suggested that felons are not among “the people” within the plain meaning of the Second Amendment, nor has it said anything at all about the rights of misdemeanants or arrestees. See McDonald, 561 U.S. at 786 (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.‘“) (emphasis added) (quoting Heller, 554 U.S. at 626-27). We have already held that at least one group of misdemeanants—specifically, domestic violence misdemeanants—is “entitled to some measure of Second Amendment protection.” Chovan, 735 F.3d at 1137 (citation omitted), abrogated on other grounds by Bruen, 597 U.S. at 17; see also United States v. Chester, 628 F.3d 673, 681 (4th Cir. 2010) (assuming that a domestic violence misdemeanant‘s “Second Amendment rights are intact“), abrogated on other grounds by Bruen, 597 U.S. at 17. We therefore conclude that Fencl and Perez-Garcia are among “the people” within the meaning of the Second Amendment‘s “bare text.” Bruen, 597 U.S. at 44 n.11.
We next ask whether the Second Amendment presumptively protects Appellants’ proposed course of conduct. It does. Fencl wanted to carry guns to protect his home and for self-defense when he traveled out of state for work. Perez-Garcia wanted to carry guns so that he could pursue employment as an armed security officer and protect his family. Their requests track the core constitutional right to possess a handgun for self-defense inside and outside the home, as defined by Heller and Bruen, respectively. See Bruen, 597 U.S. at 9-10.
The Second Amendment may not protect Fencl‘s right to bear or keep “dangerous and unusual weapons,” which might include ghost guns or silencers or armor-piercing ammunition. Heller, 554 U.S. at 627 (citation omitted). Heller made clear—and Bruen affirmed—that
B.
Because we conclude that the Second Amendment presumptively protects Appellants’ proposed course of conduct while awaiting trial for their criminal charges, the Government bears the burden of proving that application of the Bail Reform Act‘s firearm condition to them is consistent with our nation‘s “historical tradition of firearm regulation.” Bruen, 597 U.S. at 17.
At the second prong of the Bruen framework, the central question is whether the modern regulation is “relevantly similar” to historical laws and traditions, id. at 29 (citation omitted), so as to “evince[] a comparable tradition of regulation,” id. at 27. Bruen emphasized that we must uphold a modern regulation if the government identifies a “well-established and representative historical analogue.” Id. at 30 (emphasis omitted). The government does not have to identify “a historical twin.” Id. (emphasis omitted). “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.
The “central” consideration in this analysis is whether, when compared to a modern regulation, the historical precedent imposed a “comparable burden” on the right of armed self-defense and was “comparably justified.” Id. at 29 (emphasis omitted and citation omitted). In other words, both the modern regulation and the historical precedent must align as to “how and why [they] burden a law-abiding citizen‘s right to armed self-defense.” Id.
Here, the Government contends that the Bail Reform Act‘s firearm condition, as applied to Fencl and Perez-Garcia, is consistent with how and why our nation has historically disarmed criminal defendants facing serious charges while awaiting trial and, more generally, those who are not law-abiding, responsible citizens. We agree for the reasons provided below.
1.
We begin with how and why the
As to the “why,” we can readily discern the purpose behind the firearm condition based on the plain text of the
2.
The Government first contends that application of the Bail Reform Act‘s firearm condition on Appellants is justified by our nation‘s history of disarming criminal defendants facing serious charges pending trial. Based on our historical review, we agree that our society has traditionally subjected criminal defendants to temporary restrictions on their liberty—including restrictions that affect their ability to keep and bear arms—to protect public safety and to ensure defendants’ attendance at trial. As we explain below, the combination of separate but related founding era practices supports this conclusion: (1) most serious crimes were eligible for capital charges; (2) the government had the power to detain, and usually did detain, defendants indicted on capital charges; and (3) once detained, criminal defendants were completely disarmed. The Bail Reform Act‘s firearm condition as applied to Fencl and Perez-Garcia fits within this historical tradition of firearm regulation.
The goal of Bruen‘s analogical exercise is to use history to “delimit[] the outer bounds of the right to keep and bear arms.” 597 U.S. at 19. For that purpose, Bruen explained, “not all history is created equal.” Id. at 34. Emphasizing that the right codified in the Second Amendment was a “pre-existing right,” the Court saw particular relevance in “English history dating from the late 1600s, along with American colonial views leading up to the founding.” Id. at 20 (emphasis omitted) (quoting Heller, 554 U.S. at 592). The Bruen court also found post-ratification practices from the late 18th and early 19th centuries as bearing on this question. See id. at 35-36. We focus on sources from those same historical time periods.
Since the Founding, the government has been empowered to detain criminal defendants while they await trial. See
Not everyone facing criminal charges was subject to pretrial detention, to be sure. Bail, or pretrial release, also has deep historical roots. But pretrial release was far rarer in the founding era than it is today because the founding generation generally did not allow defendants facing capital charges to be released pending trial, and most serious criminal acts and felonies constituted capital offenses. The first Congress, for example, made bail available in all criminal cases “except where the punishment may be death.” See Act of Sep. 24, 1789, ch. XX, § 33, 1 Stat. 73, 91. Many early state constitutions similarly provided an affirmative right to pretrial release except for those accused of “capital” crimes. See, e.g.,
As early state court decisions show, this practice continued after the Second Amendment was ratified. See State v. Hill, 1 Tread. 242, 246 (S.C. Const. App. 1812) (opinion of Smith, J.) (“The general rule is, not to admit to bail after bill found, in capital cases.“); People v. Tinder, 19 Cal. 539, 539 (1862) (“An indictment for a capital offense furnishes of itself a presumption of the guilt of the defendant too great to entitle him to bail as matter of right under the Constitution, or as matter of discretion under the legislation of the State.“).
Importantly, “capital crimes” in the founding era encompassed a broad set of offenses. Most serious crimes and felonies were eligible for capital charges because “death was the standard penalty for all serious crimes at the time of the founding.” Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (internal quotation marks omitted). In the pre-Revolutionary era, Blackstone explained the English practice this way: “[t]he idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them.” 4 William Blackstone, Commentaries *98.
The Founders shared a similar understanding. At the time of the Second Amendment‘s ratification, for example, nonviolent crimes such as forgery and horse theft were capital offenses. See Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019) (citing Stuart Banner, The Death Penalty: An American History 23 (2002) (describing the escape attempts of men condemned to die for forgery and horse theft in Georgia between 1790 and 1805)). The First Congress imposed capital punishment for crimes such as “forgery of
Bruen next requires us to consider whether our nation‘s history and tradition of disarming criminal defendants facing serious charges pending trial is “relevantly similar” to the
We conclude that the Bail Reform Act‘s pretrial release firearm condition as applied to Appellants is “relevantly similar” to the founding era tradition of disarming criminal defendants facing serious crimes so as to “evince[] a comparable tradition of regulation.” Id. at 27, 29 (citation omitted). First, the historical tradition of pretrial disarmament imposed “a comparable burden” on defendants’ Second Amendment rights as the Bail Reform Act‘s firearm condition imposes on Appellants today. Id. at 29. Both the modern restriction and its historical precursor allow for complete but temporary disarmament on a narrow subset of the population: criminal defendants awaiting trial for their alleged, serious crimes. Second, both the modern and historical regulations are “comparably justified.” Id. Like the Bail Reform Act‘s firearm condition, the historical justifications for pretrial detention and disarmament have long included protecting the public from future criminal acts of the accused defendant. Compare A. Highmore, A Digest of the Doctrine of Bail: In Civil and Criminal Cases, vii (1783) (explaining that pretrial detention in the late 18th century ensured that “the safety of the people should be preserved against the lawless depredations of atrocious offenders“), with Salerno, 481 U.S. at 750 (noting that the purpose of the Bail Reform Act was to respond to “the alarming problem of crimes committed by persons on release,” and holding that the Government has a “compelling” and “heightened” interest in preventing crime and arrestees from presenting a “demonstrable danger to the community” (citation omitted)). Both the “how” and the “why” match.
Appellants disagree. They do not dispute the well-established historical tradition of pretrial detention, nor that detained individuals accused of serious crimes were completely disarmed in the founding era. They argue instead that the “institution of pretrial detention” fails to provide the appropriate analogy here because they were granted pretrial release. In their view, the Government must provide examples of pre-20th century “courts or legislatures restricting pretrial releasees’ arms rights” and has failed to do so.
Appellants’ arguments fail to persuade for two reasons. First, they assume that because they were granted pretrial release today, they would have been released pending their trials in the founding era. The historical evidence before us does not support that assumption. As we have explained, defendants in the founding era who faced serious charges were not released because those indicted on capital charges were not offered bail, and most felonies were capital offenses. See Baze v. Rees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring)
Appellants undoubtedly were charged with serious crimes. Fencl was charged with seven felony counts, each punishable by up to ten years’ imprisonment. See
Today, of course, pretrial release is far more common. That is mainly because of successful reforms beginning in the 1960s that resulted in a dramatic decrease in the percentage of defendants detained before trial. See Timothy R. Schnacke et al., The History of Bail and Pretrial Release, Pretrial J. Inst. 11-16 (2010).15 And we no longer subject people to capital punishment for, say, horse theft. See Medina, 913 F.3d at 158 (describing how penalties for many felony offenses became less severe in the decades following American independence). That Appellants are eligible for pretrial release today, however, does not undermine the historical evidence that similarly situated criminal defendants in the founding era would not have been released and would have instead been disarmed. As an initial matter, then, Appellants’ reasoning fails on its own terms.
Second, and more fundamentally, Appellants’ mode of historical analysis rests on a flawed premise. They presume that if the Government cannot identify a historical regulation under which Perez-Garcia and Fencl, specifically, would have been disarmed pending pretrial release in the 18th century, then the Second Amendment forbids such regulation today. They are mistaken. The Second Amendment does not require the Government to identify an 18th century law that is a “dead ringer” for the modern pretrial release regime that materialized in the 1960s. Bruen, 597 U.S. at 30. Rather, analogical reasoning under Bruen “requires only that the government identify a well-established and representative historical analogue, not a historical twin.” Id. (emphasis in original). Having established that the firearm condition as applied to Appellants is consistent with our nation‘s tradition of disarming criminal defendants charged with serious crimes pending trial, the Government
Bruen repeatedly made this point. For example, the Court surveyed the historical record and found “relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited,” like legislative assemblies, polling places, and courthouses. Id. But modern legislatures are not limited to regulating guns in only those sensitive places. Instead, the Second Amendment allows “modern regulations prohibiting the carry of firearms in new and analogous sensitive places.” Id. (emphasis in original). Similarly, the Supreme Court has maintained that the Second Amendment “presumptively” allows Congress to disarm persons convicted of felony offenses, see Heller, 554 U.S. at 626 & n.26; McDonald, 561 U.S. at 786, even though the first federal law disarming felons dates to 1938, see Federal Firearms Act, Pub. L. 75-785, ch. 850, § 2(d)-(f), 52 Stat. 1250, 1251 (1938). And while legislatures may prohibit “dangerous and unusual weapons,” in applying that principle courts must analyze whether particular weapons are dangerous and unusual today, not whether they were widespread in the founding era. See Bruen, 597 U.S. at 47 (“Whatever the likelihood that handguns were considered ‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’ for self-defense today.“).
The common-sense principle underscored by the Supreme Court is that the Constitution does not impose a “regulatory straightjacket” on our modern society. Id. at 30. In this case, history shows that we have a tradition of disarming criminal defendants facing serious charges pending trial. The historical tradition of pretrial disarmament allows legislatures to disarm people who are facing serious charges today, regardless of whether laws disarming those same exact persons happened to exist in the founding era. The Government has proven that Fencl‘s and Perez-Garcia‘s temporary disarmament is justified by that historical tradition. That is all that the Second Amendment requires.
3.
The Government also contends that the Bail Reform Act‘s firearm condition is further justified by our nation‘s history of barring people or groups deemed dangerous or unlikely to respect the sovereign‘s authority from possessing firearms. Our review of the historical record similarly reveals a lengthy and extensive Anglo-American tradition of disarming individuals who are not law-abiding, responsible citizens. In particular, the historical record reflects that legislatures have long disarmed groups or individuals whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others. This historical tradition provides a separate ground in support of the Government‘s position.
As Bruen requires, we begin by analyzing the Government‘s proffered historical tradition. And because the Second Amendment “codified a right ‘inherited from our English ancestors,‘” we start in 17th century England. Heller, 554 U.S. at 599 (citation omitted). Parliament first recognized a legal right to possess arms in the 1688-89 English Bill of Rights, which guaranteed rights to keep and bear arms ”as allowed by Law.” An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crowne (“1688-89 English Bill of Rights“), 1 W. &
Importantly, this English tradition of lawful disarmament coexisted with the fundamental right to keep and bear arms. Although the English Bill of Rights secured a right to possess arms, the government could—and did—disarm those who could not be trusted to use arms lawfully and responsibly. Because the English right “has long been understood to be the predecessor to our Second Amendment,” Heller, 554 U.S. at 593, this background supports the view that the Second Amendment also empowers Congress to authorize the disarming of individuals who are not law-abiding, responsible citizens.
Similar laws and restrictions appeared in the American colonies, adapted to our own contemporary fears and perceived threats. For example, Catholics in the Maryland, Virginia, and Pennsylvania colonies were disarmed because of perceived disloyalty to the government and disrespect for the sovereign‘s laws. See Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020).16 As the Revolutionary War approached, Connecticut, Massachusetts, Pennsylvania, New Jersey, Virginia, and North Carolina all enacted disarmament laws targeting the disloyal and those that could not be trusted to respect the sovereign‘s authority. Id. at 263-65. “The justification was always that those being disarmed were dangerous.” Id. at 265; see also NRA v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 200 (5th Cir. 2012) (“American legislators had determined that permitting [those who refused to swear an oath of allegiance] to keep and bear arms posed a potential danger.“), abrogated by Bruen, 597 U.S. at 17.
Other early American laws, meanwhile, called for case-by-case judgments and disarmed individuals for particular types of conduct. Inspired by England‘s 1328 Statute of Northampton, Massachusetts Bay in 1692, New Hampshire in 1759, and Massachusetts in 1795 forbade carrying arms in an aggressive and terrifying manner. Greenlee, supra, at 262. For example, “[c]olonial Massachusetts and New Hampshire both authorized justices of the peace to arrest all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively . . . by Night or by Day, in Fear or Affray of Their Majesties Liege People.” See Bruen, 597 U.S. at 47 (quoting 1692 Mass. Acts and Laws no. 6, pp. 11-12 and 1699 N.H. Acts and Laws ch. 1). Similarly, “[a] 1736 Virginia legal manual allowed for confiscation of arms, providing that a constable ‘may take away Arms from such
Precursors to the Second Amendment proposed in state ratifying conventions also suggest that the founding generation believed legislatures could disarm individuals deemed dangerous or unlikely to follow the sovereign‘s laws. At the Massachusetts ratifying convention, Samuel Adams, who opposed ratifying the Constitution without a declaration of rights, proposed providing that Congress may not “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 2 Bernard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971) (emphasis added). “Adams‘s proposal was celebrated by his supporters as ultimately becoming the Second Amendment.” Greenlee, supra, at 266. “For example, an editorial in the Boston Independent Chronicle called for the paper to republish Adams‘s proposed amendments alongside Madison‘s proposed Bill of Rights, ‘in order that they may be compared together,’ to show that every one of Adams‘s intended alterations but one . . . was adopted.” Id. (alterations adopted) (quoting Editorial, Boston Independent Chronicle, Aug. 20, 1789, at 2, col. 2)).
In Pennsylvania, Anti-Federalist delegates—who were adamant supporters of a declaration of fundamental rights—proposed that the people should have a right to bear arms ”unless for crimes committed, or real danger of public injury from individuals.” Schwartz, supra, at 665 (emphasis added). As Justice Scalia noted in Heller, 554 U.S. at 604, this was a “highly influential” proposal. While neither proposal was adopted exactly as written, they reflect an expansive understanding in the founding era of the scope of legislatures’ power to disarm, particularly among those who most strongly favored enshrining the right to armed self-defense in the Constitution.
Post-ratification practice points in the same direction. Antebellum commentators shared the founding generation‘s understanding of the Second Amendment‘s scope. John Holmes, a legal scholar from Maine, interpreted the Second Amendment and its state counterpart to mean that a “free citizen, if he demeans himself peaceably, is not to be disarmed.” John Holmes, The Statesman, or Principles of Legislation and Law 186 (1840) (emphasis added). “Thus are the rights of self defence guarded and secured,” he added, ”to every one who entitles himself by his demeanor to the protection of his country.” Id. (emphasis added). And a state convention in Rhode Island resolved that the Second Amendment forbade “taking from peaceable citizens their arms.” State Convention of the Suffrage men of Rhode Island, Vermont Gazette, Dec. 13, 1842, at 1.
As the Supreme Court explained in Bruen, many states also enacted surety statutes in the mid-19th century requiring “those threatening to do harm” to “post bond before carrying weapons in public.” Bruen, 597 U.S. at 55; see, e.g.,
In sum, the Anglo-American right to keep and bear arms for self-defense has always coexisted with legislative authority to disarm groups or individuals whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others. Or, as now-Justice Barrett put it, “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Kanter, 919 F.3d at 458 (Barrett, J., dissenting).17
We conclude that the Bail Reform Act‘s firearm condition as applied to Fencl and Perez-Garcia fits within the Government‘s proffered historical tradition of disarming people whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others. See Bruen, 597 U.S. at 29.
First, the Bail Reform Act‘s firearm condition is a clear exercise of Congress’ historical legislative power to disarm those who are “judged to be a threat to the public safety.” Kanter, 919 F.3d at 458 (Barrett, J., dissenting). As discussed, Congress passed the Bail Reform Act to respond to “the alarming problem of crimes committed by persons on release.” Salerno, 481 U.S. at 742 (citation omitted). The purpose of the statute was to give courts authority to make release decisions that recognize “the danger a person may pose to others if released.” Id. (citation omitted). And the Act authorizes federal courts to release defendants awaiting trial subject to specific conditions that “protect the community from the risk of crimes [they] might commit while on bail.” Scott, 450 F.3d at 874. Moreover, the plain text of the Bail Reform Act provides that the firearm condition may be imposed only if it is among the least restrictive ways to “reasonably assure the appearance of the person as required and the safety of any other person and the community.”
Second, the Bail Reform Act‘s firearm condition does not broadly prevent law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. Cf. Bruen, 597 U.S. at 71. It instead concerns only the rights of a narrow segment of the population arrested and charged with federal crimes.
Relatedly and importantly, the firearm condition at issue here is individually tailored and applied only after consideration by a judicial officer.
The Government in this case acted in accordance with this historical tradition. The Government established an individualized need for applying the firearm condition against each Appellant in adversarial proceedings before two sets of neutral judicial officers. Those neutral judicial officers determined based on the evidence presented that Appellants posed a risk while on bail and that the firearm condition was the least restrictive way to assure the safety of the community as well as their appearances in court.
The record amply supports the judicial officers’ decisions to temporarily disarm Appellants. As to Fencl, officers found more than 100 firearms in his house, including “ghost guns,” thousands of rounds of ammunition, armor-piercing bullets, incendiary rounds, and even a tear-gas grenade. Fencl had previously been convicted for unlawful possession of a concealed gun without a license and arrested for possession of a privately made ghost gun. The district court appropriately reviewed Fencl‘s stockpile and his propensity to violate gun laws and deemed him dangerous enough to temporarily bar him from possessing firearms pending his trial. As for Perez-Garcia, the district court found that the “nature of the charges and weight of the evidence supports a conclusion that Defendant is a danger to others” because he was apprehended in a vehicle containing approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl when it arrived at the port of entry. The district court‘s “equation of [wide-scale] drug trafficking with dangerousness to the community” in this particular case has “a reasonable basis in common experience.” See United States v. Strong, 775 F.2d 504, 508 (3d Cir. 1985) (as amended). By disarming both Fencl and Perez-Garcia after individualized findings of dangerousness, the Government acted consistent with its traditional regulatory authority.
Finally, we note that the firearm condition only temporarily infringed on Fencl‘s and Perez-Garcia‘s right to keep and bear arms. Temporary disarmaments are well-precedented. Parliament, for example, allowed Catholics who “repeated and subscribed” to the necessary oath to rearm. 1 W. & M., Sess. 1, ch. 15, § 3, in 6 Statutes of the Realm 71-73 (Eng. 1688). Virginia gave Catholics the same choice. See Nicholas
Appellants reject the Government‘s proffered historical tradition. They note that the “loyalty oath” statutes were primarily adopted at the height of the American Revolution and argue that “[r]egulations limited to times of ‘turmoil’ and ‘rebellion’ shed little light on the Second Amendment.” They find the affray statutes prohibiting bearing arms in a way that spreads fear or terror in the community inapt because those statutes did not encroach on the right to keep arms at home. And they claim the surety statutes “were too few and too late to constitute a founding-era ‘tradition.‘”
Appellants’ divide-and-conquer approach to the historical evidence misses the forest for the trees. In applying the Second Amendment, we do not isolate each historical precursor and ask if it differs from the challenged regulation in some way. We emphasize again: Bruen does not require the Government to identify a “historical twin” or an 18th century “dead ringer” for the Bail Reform Act‘s firearm condition. 597 U.S. at 30 (emphasis omitted). We instead examine the historical evidence as a whole, determining whether it establishes a tradition of permissible regulation (such as “dangerous and unusual weapons” or “sensitive places“), and whether the historical precedent and the modern regulation are “relevantly similar,” Bruen, 597 U.S. at 27 (citation omitted), so as to “evince[] a comparable tradition of regulation,” id. at 29.
Moreover, although traditional firearm regulations are an important form of historical evidence, they are not the only one. In assessing the Second Amendment‘s original meaning, we must consult “a variety of legal and other sources,” Heller, 554 U.S. at 605, including English history, id. at 598-600; analogous provisions in state constitutions, id. at 600-03; Second Amendment precursors, id. at 604-05; commentary, id. at 605-10, 616-19; case law, id. at 610-14; and legislative debates, id. at 614-16.
Here, the historical evidence, when considered as a whole, shows a long and broad history of legislatures exercising authority to disarm people whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others. See Kanter, 919 F.3d at 458 (Barrett, J., dissenting). The temporary disarmament of Fencl and Perez-Garcia as a means reasonably necessary to protect public safety falls within that historical tradition.
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We therefore hold that the Bail Reform Act‘s firearm condition on pretrial release is constitutional as applied to Fencl and Perez-Garcia. Our holding is consistent with how we have long balanced the constitutional rights of pretrial detainees and releasees with legitimate public safety and logistical considerations. See, e.g., Bell, 441 U.S. at 546-48 (upholding restrictions on the
As held in our order dated January 26, 2023, we AFFIRM. Appellants’ motion to dismiss these appeals is DENIED.