UNITED STATES OF AMERICA v. STEVEN DUARTE, AKA Shorty
No. 22-50048
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 9, 2024
D.C. No. 2:20-cr-00387-AB-1.
SUMMARY*
Criminal Law/Second Amendment
Reversing the district court‘s judgment, the panel vacated Steven Duarte‘s conviction for violating
On appeal, Duarte challenged his conviction on Second Amendment grounds, which the panel reviewed de novo rather than for plain error because Duarte had good cause for not raising the claim in the district court when United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), foreclosed the argument.
The panel held that under New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022),
Applying Bruen‘s two-step, text-and-history framework, the panel concluded (1) Duarte‘s weapon, a handgun, is an “arm” within the meaning of the Second Amendment‘s text, that Duarte‘s “proposed course of conduct—carrying [a] handgun[] publicly for self-defense“—falls within the Second Amendment‘s plain language, and that Duarte is part of “the people” whom the Second Amendment protects because he is an American citizen; and (2) the Government failed to prove that
Judge M. Smith dissented. He wrote that until an intervening higher authority that is clearly irreconcilable with Vongxay is handed down, a three-judge panel is bound by that decision. He wrote that Bruen, which did not overrule Vongxay, reiterates that the Second Amendment right belongs only to law-abiding citizens; and that Duarte‘s Second Amendment challenge to
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Suria M. Bahadue (argued) and Juan M. Rodriguez, Assistant United States Attorneys; Kyle Kahan, Special Assistant United States Attorney; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney, Criminal Appeals Section, Los Angeles, California; for Plaintiff-Appellee.
Sonam A. H. Henderson, Assistant Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender‘s Office, Los Angeles, California, for Defendant-Appellant.
OPINION
BEA, Circuit Judge:
We reject the Government‘s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte‘s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that
At step one of Bruen, we easily conclude that Duarte‘s weapon, a handgun, is an “arm” within the meaning of the Second Amendment‘s text and that Duarte‘s “proposed course of conduct—carrying [a] handgun[] publicly for self-defense” falls within the Second Amendment‘s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32. The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry. We do not share that view. Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment‘s publicly understood meaning also confirms that the right to keep and bear arms was every citizen‘s fundamental right. Because Duarte is an American citizen, he is “part of ‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 32.
At Bruen‘s second step, we conclude that the Government has failed to prove that
I.
On the night of March 20, 2020, two Inglewood police officers noticed a red Infiniti auto drive past them with tinted front windows. The officers turned around and trailed the car for a time before seeing it run a stop sign. When they activated their patrol lights, one of the officers saw the rear passenger (later identified as Duarte) roll the window down and toss out a handgun. The Infiniti drove about a block farther before stopping.
The officers approached the vehicle, removed Duarte and the driver from the car, and handcuffed them. A search of the car‘s interior recovered a loaded magazine wedged between the center console and front passenger seat. A third officer arrived at the scene and searched the immediate area, where he found the discarded handgun—a .380 caliber Smith & Wesson—with its magazine missing. One of the officers loaded the magazine into the recovered pistol, and it fit “perfectly.”
A federal grand jury indicted Duarte for possessing a firearm while knowing he had been previously convicted of “a crime punishable by imprisonment for a term exceeding one year,” in violation of
Duarte pleaded not guilty to the charge in the indictment. His case proceeded to trial, a jury found him guilty, and he received a below-guidelines sentence of 51 months in prison. He timely appealed and now challenges his conviction under the Second Amendment. We have jurisdiction under
II.
We normally review claims of constitutional violations de novo. United States v. Oliver, 41 F.4th 1093, 1097 (9th Cir. 2022). But because Duarte did not challenge
It is true that
No one disputes here that Duarte‘s Second Amendment challenge is untimely because he could have raised it as a
A.
We must first decide whether Bruen abrogated our decision in United States v. Vongxay. We follow our decision in Miller v. Gammie to answer that question. 335 F.3d 889 (9th Cir. 2003). Under Miller, “where the reasoning or theory of [a] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,” we are “bound by the later and controlling authority” and “reject the prior circuit opinion as . . . effectively overruled.” Id. at 893 (emphasis added). This is a more “flexible approach” than what other circuits use. Id. at 899. To abrogate a prior decision of ours under Miller, the intervening authority need only be “closely related” to the prior circuit precedent and need not “expressly overrule” its holding. Compare id., with United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024) (intervening authority must be “clearly on point” and must “demolish and eviscerate each of [the prior decision‘s] fundamental props“) (citations omitted). So long as the “the Supreme Court ha[s] taken an ‘approach [in an area of law] that [is] fundamentally inconsistent with the reasoning of our earlier circuit authority,[‘]” Rodriguez v. AT&T Mobility Services LLC, 728 F.3d 975, 979 (9th Cir. 2013) (quoting Miller, 335 F.3d at 889, 890), that “[i]s enough to render them” irreconcilable with one another, Langere v. Verizon Wireless Services, LLC, 983 F.3d 1115, 1121 (9th Cir. 2020) (citations omitted).
As a result, “[e]ver since . . . Miller v. Gammie[,] . . . we have not hesitated to overrule our own precedents when their underlying reasoning could not be squared with the Supreme Court‘s more recent pronouncements.” In re Nichols, 10 F.4th 956, 962 (9th Cir. 2021). We have found the standard met in the obvious cases, such as when a later Supreme Court decision implicitly (but not expressly) overrules an earlier precedent of ours because the supervening authority fundamentally reshapes an area of law by announcing a new or clarified analytical framework that the earlier decision never applied. See United States v. Slade, 873 F.3d 712, 715 (9th Cir. 2017); see also, e.g., United States v. Baldon, 956 F.3d 1115, 1121 (9th Cir. 2020) (“[The Supreme Court‘s] clarification [in Stokeling] of ‘violent force’ . . . is ‘clearly irreconcilable’ with . . . [Solorio-Ruiz‘s] . . . analytical distinction between substantial and minimal force. This distinction no longer exists.“); Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009) (holding previous per se rule for rejecting
1.
Before Bruen, virtually every circuit (ours included) “coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges.” Bruen, 597 U.S. at 17; see, e.g., United States v. Chovan, 735 F.3d 1127, 1136–37 (9th Cir. 2013). At the first step, we asked whether the challenged law affected conduct historically protected by the Second Amendment. E.g., Young v. Hawaii, 992 F.3d 765, 783–84 (9th Cir. 2021) (en banc), vacated, 142 S. Ct. 2895 (2022). If it did, we moved to the second step, where we applied varying levels of scrutiny to the challenged law, depending on how close the regulated conduct lay to the “core” of the Second Amendment right to “keep and bear arms.” Id.
”Bruen effected a sea change in Second Amendment law” by replacing this tiers-of-scrutiny framework with one grounded exclusively in text and history. Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038, 1041 (4th Cir. 2023), rehearing en banc granted,
The dissent does not dispute that Vongxay never performed the textual “person,” “arms,” and “conduct” analysis at Bruen‘s first step, nor the historically focused “reasoning by analogy” approach required at Bruen‘s step two. But none of these omissions should matter, the dissent argues, because Heller read the Second Amendment‘s “the people” as “exclu[ding] . . . felons” and Bruen “implicitly endorsed” that reading when it made the (unremarkable) observation that the petitioners in that case—two “ordinary, law-abiding, adult citizens“—were indisputably “part of ‘the people.‘” 597 U.S. at 31; Dissent at 66, 71. So there is “harmon[y]” between Bruen and Vongxay after all. Dissent at 67–68.
The dissent‘s post-hoc reading of Bruen and Heller finds no support in either case. The Supreme Court “has never suggested that felons are not among ‘the people’ within the plain meaning of the Second Amendment.” United States v. Perez-Garcia, 96 F.4th 1166, 1175 (9th Cir. 2024) (emphasis added). Quite the opposite, Heller defined “the people” in the broadest of terms: the phrase “unambiguously refer[red]” to “all Americans,” not “an unspecified subset.” 554 U.S. at 581. More importantly, Bruen ratified that broad definition, quoting Heller‘s language directly to hold that “[t]he Second Amendment guarantee[s] to ‘all Americans’ the right to bear commonly used arms in public.” 597 U.S. at 70 (quoting Heller, 554 U.S. at 581) (emphasis added).
In sum, Vongxay‘s wholesale omission of Bruen‘s two-step methodology is “clearly irreconcilable” with Bruen‘s “mode of analysis” for analyzing Second Amendment challenges. Miller, 335 F.3d at 900. We would be remiss, however, to ignore Vongxay‘s affirmative reasons for upholding
Vongxay concluded that
While concluding that ”Younger control[led]” and the “legal inquiry end[ed]” with that case, Vongxay also turned to two Fifth Circuit, pre-Heller decisions—United States v. Everist, 368 F.3d 517 (5th Cir. 2004) and United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)—which purportedly “len[t] credence to the . . . viability of Younger‘s holding” in a post-Heller (but pre-Bruen) world. Vongxay, 594 F.3d at 1116, 1117. Vongxay endorsed, specifically, Everist‘s holding that
Vongxay‘s dependence on Emerson and Everist is untenable post-Bruen. ”Emerson applied heightened—i.e., intermediate—scrutiny” to uphold a different law—
applied the same “means-end” scrutiny approach to
The Government and the dissent remind us repeatedly that, while Vongxay relied on Everist and Emerson, Vongxay never itself applied the now defunct means-end scrutiny approach to uphold
Vongxay lastly took comfort in the Heller Court‘s remark that “nothing in [its] opinion should be taken to cast doubt” on certain “longstanding” laws restricting the Second Amendment right, such as laws “prohibit[ing] . . . the possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626. In a footnote, Heller labeled these and other examples as “presumptively lawful.” Id. at 627 n.26. Vongxay took this to mean that felon firearm bans were “categorically different” from other restrictions on the Second Amendment right, which “buttressed” the conclusion that
“Simply repeat[ing] Heller‘s language” about the “presumptive[] lawful[ness]” of felon firearm bans will no longer do after Bruen. See Pena v. Lindley, 898 F.3d 969, 1007 n.18 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part) (citing Vongxay, 594 F.3d at 1115). Bruen expressly “require[s] courts to assess whether”
see also Baird v. Bonta, 81 F.4th 1036, 1043 (9th Cir. 2023) (”Bruen clarified the appropriate legal framework to apply when a . . . statute [is challenged] under the Second Amendment.“).
Had the Court in Bruen endorsed simply deferring to Heller‘s “presumptively lawful” footnote, the outcome of that case would have been much different. “[L]aws forbidding the carrying of firearms in sensitive places” were another one of the categories of “‘longstanding’ . . . and ‘presumptively lawful’ regulatory measures” that Heller‘s footnote mentioned. Jackson v. City & County of San Francisco, 746 F.3d 953, 959 (9th Cir. 2014) (quoting Heller, 554 U.S. at 626–27, 627 n.26); see Bruen, 597 U.S. at 30. But rather than go along with New York‘s “attempt[] to characterize [its] proper-cause requirement as a [longstanding] ‘sensitive-place‘” regulation under Heller, the Bruen Court rejected, as having “no historical basis,” the argument that “New York [could] effectively declare the island of Manhattan a ‘sensitive place‘” where public carry could be categorically banned. Id. at 30–31. As with any other firearm regulation challenged under the Second Amendment, Bruen clarified, courts must now analyze “sensitive place” laws by analogizing them to a sufficiently comparable historical counterpart. See id. at 30.
It would be “fundamentally inconsistent” with Bruen‘s analytical framework to treat felon firearm bans any differently, as nothing in the majority opinion implies that we can jettison Bruen‘s test for one “presumptively lawful” category of firearm regulations but not others (e.g., sensitive place regulations). See Rodriguez, 728 F.3d at 979. And far from what the dissent suggests, applying Bruen to laws like
The Government understandably downplays Vongxay‘s heavy reliance on prior cases that are clearly inconsistent with Bruen. See also Dissent at 68–69, 71. It also concedes by omission that Vongxay did not apply the two-step textual and historical methodology that Bruen requires. The Government argues instead that (if you squint hard enough) it is clear Bruen endorsed Vongxay‘s “conclusion” that Congress may categorically disarm all felons for life because the Court referred to the petitioners in Bruen as “law-abiding” and “responsible” citizens not once, not twice, but 14 times.
First, whether Vongxay reached the right “conclusion” is irrelevant under Miller if “th[at] conclusion [can] no longer [be] ‘supported for the reasons stated’ in th[e] decision.” Rodriguez, 728 F.3d at 979 (quoting United States v. Lindsey, 634 F.3d 541, 551 (9th Cir. 2011)); see also Langere, 983 F.3d at 1121 (“[D]eference [to intervening Supreme Court decisions] extends to the reasoning of . . . the decisions . . .
not just their holdings.“) (emphasis added). Because Vongxay‘s rationale for holding
Second, we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance. See Range, 69 F.4th at 102 (“[T]he phrase ‘law-abiding, responsible citizens’ is as expansive as it is vague.“); Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1595 (2022) (“[R]ecent scholarly estimates of the number of former felons range from 19 million to 24 million.“) (internal citations omitted). “[T]he criminal histories of the plaintiffs . . . in Bruen,” after all, “were not at issue in th[at] case,” Range, 69 F.4th at 101, and “[i]t is inconceivable that [the Supreme Court] would rest [its] interpretation of the basic meaning of any guarantee of the Bill of Rights upon such . . . dictum in a case where the point was not at issue and was not argued,” Heller, 554 U.S. at 625 n.25. So we agree with the Third Circuit that Bruen‘s scattered references to “law-abiding” and “responsible” citizens did not implicitly decide the issue in this case. Range, 69 F.4th at 101; see United States v. Johnson, 256 F.3d 895, 916 (9th Cir. 2001) (separate opinion of Kozinski, J., Trott, T.G. Nelson, Silverman, JJ.) (statements “uttered in passing” and “made . . . without analysis” do not bind future panels).
* * *
Vongxay did not apply anything that resembles the analytical steps of Bruen‘s “mode of analysis” to determine whether
B.
Step one of Bruen asks the “threshold question,” Range, 69 F.4th at 101, whether “the Second Amendment‘s plain text covers” (1) the individual, (2) the type of arm, and (3) the “proposed course
On that issue, Duarte argues that “the people” in the Second Amendment means all American citizens, which includes him. Look no further than the Court‘s textual analysis of “the people” in Heller, where the Court construed that phrase as “unambiguously refer[ring]” not to any “unspecified subset” of people but to “all members of the national community,” which includes “all Americans.” Id. at 580-81; see also Bruen, 597 U.S. at 70 (ratifying Heller‘s “all Americans” definition of “the people“). Regardless whether Duarte is an American citizen, the Government responds, the Second Amendment excludes felons from “the people” because the right to keep and bear arms was a qualified “political” right at the Founding reserved for members of the “virtuous citizenry.” The right to bear arms, in other words, was no different from the right to vote, sit on a jury, or run for office, all of which state legislatures historically denied felons because their conduct had proved they were not upright or moral citizens.
Duarte is one of “the people” because he is an American citizen. Heller resolved this textual question when it held that “the people” includes “all Americans” because they fall squarely within our “national community.” Id. at 580-81. Bruen expressly reaffirmed that reading. 597 U.S. at 70 (“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.“) (quoting Heller, 554 U.S. at 581). Our own analysis of the Second Amendment‘s text and history also confirms that the original public meaning of “the people” in the Second Amendment included, at a minimum, all American citizens. We therefore reject the Government‘s position that “the people,” as used in the Second Amendment, refers to a narrower, “unspecified subset” of virtuous citizens. See Heller, 554 U.S. at 580.
1.
In Heller, “the people“-the “holder of the [Second Amendment] right“-was the starting point of the Court‘s textual analysis. Id. at 581. The Court began by tracking that phrase‘s use across various provisions in the Constitution. While the preamble,
The Government argues that the Court in Heller never meant to define the scope of “the people” when it said those words. We are urged to think about it less as a statement of law and more as a “comment”
The Court‘s textual analysis of “the people” in Heller hardly reads as a “mere[] prelude to another[,] [more important] legal issue that command[ed] the [Court‘s] full attention.” Johnson, 256 F.3d at 914-16; see Range, 69 F.4th at 101. The Second Amendment‘s use of “the people” to “descri[be] the holder of th[e] right” was “[t]he first salient feature of the [Amendment‘s] operative clause” that dominated the Heller Court‘s textual analysis-the second being the Amendment‘s phrase “to keep and bear arms,” which described “the substance of the right.” Heller, 554 U.S. at 580-81. Thus, defining who “the people” were and the “substance” of the right they held were both equally necessary to Heller‘s holding. See id. at 581 (“We move now from the holder of the right-‘the people‘-to the substance of the right: ‘to keep and bear Arms.‘“). Only after “[p]utting these [two] textual elements together” did the Court conclude that the “[m]eaning” of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).
So we agree with Duarte that Heller read “the people” in the Second Amendment as “unambiguously refer[ring] . . . not to an unspecified subset” but to “all Americans,” who are indisputably “part of the national community.” Id. at 580-81; see also Bruen, 597 U.S. at 70 (“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.“) (quoting Heller, 554 U.S. at 581); McDonald v. City of Chicago, Ill., 561 U.S. 742, 767-68 (2010) (“[W]e concluded[] [in Heller that] citizens must be ‘permitted to ‘use [handguns] for the core lawful purpose of self-defense.‘‘“) (citing Heller, 554 U.S. at 630). With that, we join the growing number of circuits to give authoritative weight to Heller‘s “national community” definition for “the people.”5
2.
Our own analysis of the Second Amendment‘s text, “as informed by
What we gather from history is that ordinary English speakers at the Founding understood the “people” to refer to “the whole Body of Persons who live in a Country[] or make up a Nation.” N. Bailey, An Universal Etymological English Dictionary 601-02 (1770). The “most useful and authoritative [contemporaneous-usage] dictionaries” of the Founding-era uniformly defined the term this way.6 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 419 (1st ed. 2012). This broad definition-with its focus on residency-largely overlapped with the commonly understood meaning of “citizens” at that time. Compare People, Webster, supra, at 600 (“The body of persons who compose a community, town, city, or nation“), with e.g., Citizen, Dyche, supra, at 156 (“[A] freeman or inhabitant of a city or body corporate.“). Other Founding-era sources likewise used the two terms synonymously. See, e.g., THE FEDERALIST NO. 2, at 10 (John Jay) (Jacob E. Cooke ed. 1961) (“To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection.“); THE FEDERALIST No. 14 (James Madison) (“Hearken not to the unnatural voice which tells you that the people of America[] . . . can no longer be fellow citizens of one great, respectable, and flourishing empire.“); Douglass v. Stephens, 1 Del. Ch. 465, 467 (1821) (“[T]he people of the United States . . . resist[ed] the . . . British King and Parliament. . . . [T]hey knew that they were practically, as well as legally, fellow-citizens, . . . enjoying every right and privilege indiscriminately with the inhabitants.“).
This notion that one‘s status as a “citizen” signified his membership among “the people” traces its roots to English common law. In his Commentaries on the Laws of England, William Blackstone explained that every “[n]atural-born subject[]” of England “fall[s] under the denomination of the people” because his birth within the realm creates an “intrinsic” duty of allegiance, a “tie . . . which binds [him] to the king.” 2 William Blackstone, Commentaries *366 (St. George Tucker ed. 1803) (1767); see also William Blackstone, An Analysis of the Laws of England 24 (6th ed. 1771) (“Allegiance is the duty of all subjects; being the reciprocal tie of the People to the Prince.“) (emphasis added). But this “tie” went both ways. “[B]y being born within the king‘s” realm, Blackstone continued, all “natural-born subjects . . . acquire” a “great variety of rights,” id. at
That “the people” referred (at a minimum) to all citizens, and that the “right of the people” to keep and bear arms was a fundamental right of every citizen, is also “confirmed by [the] analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.” Heller, 554 U.S. at 600. The “most relevant” of these examples are the ten “state constitutional provisions written in the [late] 18th century or the first two decades of the 19th.” Id. at 582. While three of those states-Indiana, Missouri, and Ohio-described the Second Amendment right as belonging to “the people,” Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 209 (2006), six states-Alabama, Connecticut, Kentucky, Maine, Mississippi, and Pennsylvania-expressly conferred it to “the citizens” or “every citizen.”7 Tennessee, in addition, described the right as belonging to all “freemen,” another term for “citizens.”
“That of the[se] . . . state constitutional protections . . . enacted immediately after 1789, at least seven unequivocally protected [every] individual citizen‘s right to self-defense is strong evidence that this is how the founding generation conceived of the right.” Heller, 554 U.S. at 603. “These provisions,” after all, offer “the most analogous linguistic context” for discerning how the public understood the Second Amendment right. Id. at 585-86. And “[i]t is clear from th[eir] formulations that,” when describing the holder of the right, the Founding generation used “the people” and “the citizens” interchangeably. Id. at 585.
The “three important founding-era legal scholars [to] interpret[] the Second Amendment“-William Rawle, Joseph Story, and St. George Tucker-likewise equated “the people” with “citizens” and described the right to keep and bear arms as an all-citizens’ right. Id. at 605. In his “influential treatise,” Rawle spoke of “[the] people [who are] permitted and accustomed to bear arms . . . [as] properly consist[ing] of armed citizens.” Id. at 607 (quoting W. Rawle, A View of the Constitution of the United States of America 140 (1825)) (emphasis added). Story similarly wrote that
Mid-19th-century cases interpreting the Second Amendment carried on this unbroken tradition of referring to the right to keep and bear arms as every citizen‘s right. See, e.g., Heller, 554 U.S. at 612 (quoting United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (“The constitution of the United States also grants to the citizen the right to keep and bear arms.“)); State v. Chandler, 5 La. Ann. 489, 490 (1850) (describing the Second Amendment as protecting every “man‘s right to carry arms . . . ‘in full open view‘“). The Georgia Supreme Court‘s decision in Nunn v. State, 1 Ga. 243, 251 (1846), for instance-a case that “perfectly captur[ed]” the import of the Second Amendment‘s text-described the right as belonging to “the whole people, old and young, men, [and] women . . . .” Heller, 554 U.S. at 612 (quoting id.) (emphasis added).
We will stop there, although we could go on. See McDonald, 561 U.S. at 773-74 (“[T]he Civil Rights Act of 1866, . . . which was considered at the same time as the Freedmen‘s Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.“) (emphasis added). We are confident that, “by founding-era consensus,” the “right of the people” to keep and bear arms was publicly understood as the fundamental right of every citizen. United States v. Huitron-Guizar, 678 F.3d 1164, 1168 (10th Cir. 2012).
3.
Against this weight of evidence, the Government tells us that “the people” protected by the Second Amendment historically included not all citizens but rather a subset of them-namely, members of the “virtuous citizenry.” As its one and only example from history, the Government quotes the most favorable language from 19th-century commentator Thomas Cooley‘s “massively popular” Treatise on Constitutional Limitations. Heller, 554 U.S. at 616. In that work, Cooley wrote that “the people, in the legal sense, must be understood to be those who . . . are clothed with political rights,” such as the right of “elective franchise.” Thomas M. Cooley, A Treatise on the Constitutional Limitation Which Rest upon the Legislative Power on the States of the American Union ch. III, 39 (4th ed. 1878). When used “in this connection,” he continued, “[c]ertain classes have been almost universally excluded” from “the people,” such as the “slave, . . . the woman, . . . the infant, the idiot, the lunatic, and the felon.” Id. at 36, 37 (emphasis added). “The theory” was that these groups “lack[ed] either the intelligence, . . . the liberty of action,” or, in the case of felons, “the virtue” that was “essential to the proper exercise of the elective franchise.” Id. at 37. So they “are compelled to submit to be ruled by an authority in the creation of which they ha[d] no choice.” Id. at 36.
The first amendment to the Constitution further declares that Congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances. . . . When the term the people is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise . . . But in all the enumerations and guaranties of rights the whole people are intended[.] . . . In this case, therefore, the right to assemble is preserved to all the people, and not merely to the electors, or to any other class or classes of the people.
Id. at 267 (emphasis added). So we add Cooley to the already long list of influential writers who understood “the people,” in the rights’ context, to mean the whole body of citizens, and the “right of the people to keep and bear arms” as every citizen‘s right.
* * *
“[W]ith respect to [whom] the right to keep and bear arms” belongs, “[n]othing in the Second Amendment‘s text draws a . . . distinction” between those who are virtuous and those who are not. See Bruen, 597 U.S. at 32 (emphasis added) (finding no distinction between public versus private carry in the phrase “keep and bear arms“). Because Duarte‘s status as an American citizen places him among “the people” protected by the Second Amendment‘s “bare text,” “[t]he Second Amendment . . . presumptively guarantees” his right to possess a firearm for self-defense. Bruen, 597 U.S. at 33, 44 n.11. The Government now “shoulder[s] the burden of demonstrating” at step two of Bruen that
C.
At Bruen‘s second step, the Government must prove that it “is consistent with this Nation‘s historical tradition of firearm regulation” for Congress to ban permanently, by making it a felony, a non-violent offender like Duarte from possessing a firearm
One final point of order. While the Government does not have to find for us a historical “dead ringer” to
1.
The Government‘s first proposed category of historical analogues are not firearm regulations per se but a trio of draft proposals that certain members of New Hampshire‘s, Massachusetts‘s, and Pennsylvania‘s state conventions recommended adding to the Constitution prior to its ratification. New Hampshire‘s convention offered language providing that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1891). “Samuel Adams and other delegates unsuccessfully urged the Massachusetts convention to recommend” adding a provision to the Constitution that it “be never construed to authorize Congress to . . . prevent the people of the United
“It is dubious” at best whether several, rejected “proposals [made] in the state conventions,” Heller, 554 U.S. at 603, can-consistent with Bruen‘s second step-amount to a “well-established and representative” national tradition of regulating firearms, Bruen, 597 U.S. at 30; see also Heller, 554 U.S. at 590 (“It is always perilous to derive the meaning of an adopted provision from []other provision[s] deleted in the drafting process.“). None of the proposals, obviously, found its way into the Second Amendment. The two most restrictive ones (Pennsylvania‘s and Massachusetts‘s) failed to carry a majority vote within their own states. See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 222 (1983). And neither of those two states, we add, incorporated the language of its proposal into the Second Amendment provision of its own constitution.9 See, e.g.,
Start with New Hampshire‘s proposal. It empowered Congress to disarm only those who “are or have been in actual rebellion,” which was a crime against the state that denoted violence. Id. at 456 (citing Rebellion, 2 New Universal Etymological English Dictionary (4th ed. 1756) (defining “rebellion” as “traitorous taking up [of] arms, or a tumultuous opposing [of] . . . the nation“)). Adams‘s proposal in the Massachusetts convention permitted disarming only citizens who were not “peaceable,” a term that at the time meant “[f]ree from war; free from tumult“; “[q]uiet; undisturbed“; “[n]ot violent; not bloody“; “[n]ot quarrelsome; not turbulent.” Samuel Johnson, A Dictionary of the English Language (5th ed. 1773), quoted in Kanter, 919 F.3d at 455 (Barrett, J., dissenting). “Far from banning the [possession] of . . . firearms” by any class of criminal, Adams‘s proposal “merely [sought to] codif[y] the existing common-law” tradition of disarming those who “b[ore] arms to terrorize the people, as had [been done since] the Statute of Northampton” in 1328. See Bruen, 597 U.S. at 46-47; compare id.
On balance, then, the draft proposals allude to a possible tradition of disarming a narrow segment of the populace who posed a risk of harm because their conduct was either violent or threatened future violence. That does not offer a “distinctly similar” justification for an across-the-board disarming of non-violent offenders like Duarte. Bruen, 597 U.S. at 26. We move on to the Government‘s second category of historical analogues.
2.
The Government next refers us to 17th- to early 19th-century colonial and American laws that disarmed groups whom the Founding generation, according to the Government, “deemed untrustworthy based on [their] lack of adherence to the rule of law.” At the height of the Revolutionary War, British Loyalists who refused to swear allegiance to the new republic were dispossessed of their firearms. Infra Part a. Catholics were disarmed in England once the Protestants seized power after the Glorious Revolution; several colonies passed similar Catholic-disarmament laws during the French and Indian War. Infra Part b. Bans on selling arms to Indians were a matter of course in the early American colonies. Infra Part c. And Blacks, free and enslaved alike, were routinely deprived of their arms. Infra Part d. Repugnant as these laws are by modern standards, the Government maintains that they represent a longstanding tradition in this country of disarming groups whom legislatures thought were “unwilling” to comply with the law.
Laws that disarmed British Loyalists, Catholics, Indians, and Blacks fail both the “why” and “how” of Bruen‘s analogical test. First, the “why.” There is a solid basis in history to infer that states could lawfully disarm these groups because they “were written out of ‘the people‘” altogether. United States v. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023). But Duarte is an American citizen and counts among “the people” by both modern and Founding-era standards. And insofar as legislatures passed these laws to prevent armed insurrections by dangerous groups united along political, ideological, or social lines, the Government offers no historical evidence that the Founding generation perceived formerly incarcerated, non-violent criminals as posing a similar threat of collective, armed resistance.
a. Laws disarming British Loyalists or “disaffected” persons.
When the Revolutionary War was in full swing, early state legislatures routinely condemned “disaffected” persons
as “enem[ies] to the American cause,” who “spread [their] disaffection” from within to the detriment of the war effort. Act of 1779, 9 The Statutes at Large of Pennsylvania from 1682 to 1801 441 (1903). “[T]here [wa]s great reason to believe” that “dangerous and disaffected” persons “communicate[d] intelligence to the [British] enemy,” and were inclined to either join or support an insurrection should one arise. Act of 1778, 1 Laws of the State of New York Passed at the Sessions of the Legislature 50 (1777-1784); Act of 1780, 10 Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619 310-11 (Hening ed. 1822) (“[C]omit[ting] to close confinement[] any person suspect[ed] of disaffection” in the event of invasion or insurrection). So much so did this class of people concern the new nation that the Continental Congress “recommended . . . disarm[ing] persons “who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies.“” Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 264 (2020) (quoting 1 Journals of the Continental Congress, 1774-1789, at 285 (1906)). Six of the states heeded this advice by enacting oath-or-disarmament laws, which stripped individuals of their arms if they refused to “renounc[e] all allegiance to the now-foreign sovereign George III in addition to swearing allegiance to one‘s State.”10 Marshall, supra, at 724-25.
The states passed these laws during “the darkest days of an existential domestic war” between the newly formed republic and Great Britain. Marshall, supra, at 725. “[N]on-associat[ors],” the thinking went, not only “refuse[d] . . . to defend, by arms, th[e] United Colonies,” 1 Journals of the Continental Congress, 1774-1789, at 285 (1906), but might also “take up arms against America” in “th[is] present unhappy dispute,” see Resolution of the Council of Safety, Jan. 18, 1776, 1 The Revolutionary Records of the State of Georgia 101 (Candler ed. 1908) (emphasis added).
1777, 24 The State Records of North Carolina 89 (Clark ed. 1905); Act of 1778, 203 Hanson‘s Laws of Maryland 1763-1784 193, 278 (1801). Several other states passed similar laws. Connecticut disarmed those who “libel[ed] or defame[d] any of the resolves of the . . . Congress of the United Colonies” or, upon “complaint being made to the civil authority,” were found to be “inimical to the liberties of th[e] Colon[ies].” Act of 1775, 15 The Public Records of the Colony of Connecticut, From May, 1775, to June 1776 193 (Hoadly ed. 1890). New York ordered the supplying of its militias with “such good Arms . . . as they may have collected by disarming disaffected persons,” Order of 1776, 15 Documents Relating to the Colonial History of the State of New York 103 (Fernow ed. 1887). New Jersey, lastly, empowered its Council of Safety “to deprive . . . [all] Arms, Accoutrements, and Ammunition” from “such Person as they shall judge disaffected.” Act of 1777, Acts of the General Assembly of the State of New Jersey 90 (1777).
Confiscating their weapons-for the time being-was thought both reasonable and necessary to preserve the new nation. See Greenlee, supra, at 265 (“Like the English, and out of similar concerns of violent insurrections, the colonists disarmed those who might rebel against them.“); Perez-Garcia, 96 F.4th at 1187 (“The justification was always that those being disarmed were dangerous.“) (quoting Greenlee, supra, at 265).
The laws targeting disaffected persons, for example, certainly read like emergency wartime measures. See, e.g., 1778 Act of Va., 10 Statutes at Large, supra, at 310-11 (calling for the confinement of disaffected persons “in this time of public[] danger, when a powerful and vindictive enemy are ravaging our southern sister states“); 1779 Act of Pa., 9 Statutes at Large, supra, at 441 (calling for the “temporary suspension of law” in this “time[] of public danger” and confining suspected Loyalists). And there is good reason to think they were, in famed commentator St. George Tucker‘s words, “merely temporary.” 2 Tucker‘s Blackstone, supra, at *368 n.2 (discussing Virginia‘s 1777 oath-or-disarmament law); see also Marshall, supra, at 726 (“[T]here is good reason to consider the[se] [laws] not to have survived through the Founding in anything like their original form.“). It lastly bears emphasis that only male inhabitants who qualified for militia service-i.e., men of fighting age-had to swear an oath. Most states, in other words, disarmed those who were not just sympathetic to the prospect of a domestic, armed uprising, but physically capable of joining one. E.g., 1776 Act of Mass., 5 Acts and Resolves, supra, at 479 (1886) (requiring “every male person above sixteen” to swear the oath and disarming those who “neglect[ed] or refuse[d]“); 1777 Act of Va., 9 Statutes at Large, supra, at 282 (same); Act of 1777, 24 The StateRecords of North Carolina, supra, at 88 (similar); Act of 1776, 7 Records of the Colony of Rhode Island, supra, at 566 (1862) (same); 1777
There is just as good reason to conclude that “disaffected” persons could be disarmed in toto because they fell outside “the people” and were therefore deemed to have no fundamental rights. See Jimenez-Shilon, 34 F.4th at 1048. Since “an individual‘s undivided allegiance to the sovereign” was a “precondition” to his “membership in the political community,” British Loyalists “renounced” their place among “the [American] people” by refusing to swear a loyalty oath. Jimenez-Shilon, 34 F.4th at 1048 (quoting United States v. Perez, 6 F.4th 448, 462 (2d Cir. 2021) (Menashi, J., concurring) (internal quotations omitted)).
At least several states explicitly justified disarming Loyalists along these lines. North Carolina, for example, explained that it is “the Duty of every Member of Society to give proper Assurance of fidelity to the Government from which he enjoys protection.” Act of 1777, 24 The State Records of North Carolina, supra, at 88. Those who abstain from swearing allegiance, “by their refusal . . . to do [so],” “proclaim that they should no longer enjoy the Privileges of Freemen [i.e., citizens] of the . . . State.” Id. (emphasis added). Pennsylvania, Virginia, and Maryland similarly invoked this idea of a “reciprocal” relationship of “allegiance and protection” between the citizen and state. 1777 Act of Va., 9 Statutes at Large, supra, at 281; 1778 Act of Pa., 9 Statutes at Large, supra, at 111; Act of 1777, 203 Hanson‘s Laws of Maryland, supra, at 187; Churchill, supra, at 160 (“Noting that “in every free state, allegiance and protection are reciprocal,” Maryland[“s] . . . test oath barred those refusing from . . . keeping arms.“). By refusing to promise the former, the “disaffected” person swore off “the benefits of the latter.” E.g., 1777 Act of Va., 9 Statutes at Large, supra, at 281.
It is no small coincidence either that these “loyalty” oaths were precursors to the 1795 naturalization oath that the First Congress later required resident aliens to swear as a condition for American citizenship. Compare 2 Tucker‘s Blackstone, supra, at *368 n.2 (quoting Virginia‘s oath-or-disarmament law), with id. at *374 n.12 (quoting 1795 federal naturalization law). Thus, “[t]o refuse [that oath in 1777] was to declare oneself [not only] a resident alien of the new nation,” but, “given the war,” a “resident enemy alien” who sympathized with a foreign belligerent power. Marshall, supra, at 725 (emphasis added); see also Thomas Jefferson, NOTES ON THE STATE OF VIRGINIA 163 (Lilly & Wait eds., 1832) (“By our separation from Great Britain, British subjects became aliens, and being at war, they were alien enemies.“). Consistent with that status change, disarmament was just one “part of a wholesale stripping of rights and privileges” that followed from refusing to swear allegiance. Marshall, supra, at 725. Many states, for example, sent suspected Loyalists to the “gaol,” where they were held without bail until they recited the oath. See, e.g., 1779 Act of Pa., 9 Statutes at Large, supra, at 442; 1777 Act of Va., 9 Statutes at Large, supra, at 282-83. Virginia went one step further, barring oath-recusants from “suing for any debts . . . [and] buying lands, tenements, or hereditaments.” 1777 Act of Va., 9 Statutes at Large, supra, at 282; see also NOTES ON THE STATE OF VIRGINIA, supra, at 162 (“By our laws, no alien can hold lands, nor alien enemy maintain an action for money, or other moveable thing.“). North Carolina outright banished those who refused their oath and declared anyone so banished who returned to the state “guilty of Treason.” Act of 1777, 24 The State Records of North Carolina, supra, at 89. The few “permitted . . . to remain in the State” were not allowed to leave without express “[p]ermission . . . obtained
When viewed through this lens, the Government‘s analogy to laws disarming Loyalists fails the “why” of Bruen‘s second step. Insofar as these laws were meant as “merely temporary” measures, 2 Tucker‘s Blackstone, supra, at *368 n.2, that “disarm[ed] [a] narrow segment[] of the population” because they “threaten[ed] . . . the public safety,” that does not justify permanently disarming all non-violent felons today, see Perez-Garcia, 96 F.4th at 1189 (citing Kanter, 919 F.3d at 458 (Barrett, J., dissenting)). And if disarming the British Loyalist naturally followed because he swore himself out of “the people” by refusing his oath of allegiance, that reasoning does not carry over to the non-violent offender who served his prison term. The Government offered no evidence demonstrating that a former non-violent convict forever forfeited his legal status as one of “the people” merely because he sustained a criminal conviction.11
Nor did “how” these laws burden the Second Amendment right come close to approximating
b. Laws disarming Catholics or “Papists.”
Laws disarming Catholics fare arguably worse as historical analogues to
It is “doubt[ful] that three colonial regulations” prove that disarming Catholics as a class ever became a “well-established” tradition in this country. See Bruen, 597 U.S. at 46 (emphasis in original). The practice appears instead to have been more of an English novelty that began when “the deposed King James II . . . disarm[ed] Protestants while arming . . . Roman Catholics.” Marshall, supra, at 722-21. Indeed, the inhabitants of Virginia, Pennsylvania, and Maryland were still British subjects when they passed their Catholic-disarmament laws, and they did so at the height of the French and Indian War, “which was perceived by many . . . as a war between Protestantism and Catholicism.” Greenlee, supra, at 263. Following independence, the custom did not seem to secure a strong enough foothold on this side of the Atlantic to mature into a longstanding tradition of firearm regulation. We are unaware of any post-ratification laws disarming Catholics as a class. See id. at 721 (“Like the game laws, the English exclusion of subjects based on religion ha[d] no place within the Second Amendment, as early commentators also celebrated.“); see also Bruen, 597 U.S. at 35 (“[C]ourts must be careful when assessing evidence concerning English common-law . . . English common-law practices . . . cannot be indiscriminately attributed to the Framers of our own Constitution.“).
We are not even sure that disarming Catholics was that prevalent in England. “[T]hese laws are seldom exerted to their utmost rigour,” Blackstone wrote, and “if they were, it would be very difficult to excuse them.” See 5 Tucker‘s Blackstone, supra, at 57; see id. at 55-56 (summarizing arms restrictions and other anti-Catholic English laws); see also Bruen, 597 U.S. at 58 (“[R]espondents offer little evidence that authorities ever enforced surety laws.“). Episodes like the foiled Gunpowder Plot of 1605, where Guy Fawkes led fervent Catholics in a conspiracy to kill King James I and blow up both Houses of Parliament, Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1210-11 (2016), “obliged parliament to counteract so dangerous a spirit by laws of a great, and then perhaps necessary, severity,” 5 Tucker‘s Blackstone, supra, at 57. Thus, Blackstone explained, these laws “are rather . . . accounted for . . . from their history, and the urgency of the times which produced them, than to be approved . . . as a standing system of law.” Id.
Nor can we say that the burdens these laws imposed on the Second Amendment right were as heavy as
c. Laws disarming Indians.
Like Catholics and Loyalists, Indians, while not traitors, “had always been considered [members of a] distinct, independent political communit[y],” with whom the colonies were frequently at war. Worcester v. State of Ga., 31 U.S. 515, 519 (1832). Indians, simply put, “w[ere] [not] . . . citizen[s] of the British colonies” and were not “entitled to the [same] rights of English subjects,” so they could be disarmed as a matter of course. Jimenez-Shilon, 34 F.4th at 1047 (quoting Joyce Lee Malcom, To Keep and Bear Arms: The Origins of an Anglo-American Right 140 (1994)). And to the extent they were, it was generally during times of conflict.12 In a similar vein, to sell Indians arms during wartime was to provide material aid to the enemy, a capital crime in many cases. See, e.g., 1675 Act of Va., 2 Statutes at Large 326-27, 336 (Hening ed. 1823). Thus, colonial assemblies justified barring the sale of arms to Indians not because they were “deemed untrustworthy
For example, one 1675 Virginia law, after condemning “the sundry mur[d]ers, rapines and many depredations lately committed and done by Indians on the inhabitants of this country,” resolved that “a war[] be declared . . . against all such Indians,” and warned that “any person . . . within this colony . . . presum[ing] to trade . . . with any Indian any powder, shot[] or arm[s] . . . shall suffer death without benefit[] of clergy.” 2 Statutes at Large, supra, at 326-27, 336. New York and Massachusetts similarly denounced “the dangerous practice of selling [g]uns . . . [to] the Indians” as causing “the destruction of the Christians” and as “very poisonous and destructive to the English.” Ordinance of 1645, Laws and Ordinances of New Netherland, 1638-1674 47 (O‘Callaghan ed. 1868); Act of 1676, 11 Records Of The Colony Of New Plymouth In New England 242-43 (Pulsifer ed. 1861). Anyone “daring to trade” any arms or “munitions of War” with them was to be executed. Id. “[T]he eastern Indians have broke[n] and violated all treaties and friendship made with them,” one 1721 New Hampshire law remarked. 1721 Act, Acts and Laws of His Majesty‘s Province of New Hampshire 164 (1771). “[T]herefore [be] it enacted . . . [t]hat whoever shall . . . supply them with any . . . guns, powder shot[], [or] bullets . . . [shall] pay the sum of five hundred pounds, and suffer twelve months imprisonment.” Id. Thus, even those colonies punishing the sale of arms to Indians less harshly still justified these measures as designed to prevent the arming of a foreign enemy.
The nature of the burden imposed by these laws was also different in kind from how
d. Laws disarming Slaves and free Blacks.
The by-now-familiar reasons for disarming Loyalists, Catholics, and Indians also motivated laws disarming Slaves and free Blacks as a class. Slaves, by definition, fell outside “the people” entitled to Second Amendment protection. E.g., Citizen, Samuel Johnson, A Dictionary of the English Language 297 (6th ed. 1785) (“A freeman of a city; not a foreigner; not a slave“). And “free blacks, like that of Tories and
(citing Waters v. State, 1 Gill 302, 309 (Md. 1843) for the proposition that “free blacks were treated as a “dangerous population,“” prompting “laws . . . to prevent their migration into th[e] State; to make it unlawful for them to bear arms; [and] to guard even their religious assemblages with peculiar watchfulness“).
And as with every other historical analogue the Government relies on, laws disarming Blacks still allowed for certain case-specific exceptions. Virtually every law that we found contained exemptions for slaves who were armed but had in their possession a “ticket or license . . . from his or her master.” 1768 Act of Ga., A Compilation of the General and Public Statutes of the State of Georgia 594 (Cobb ed. 1859). This was basically a certificate authorizing them to possess firearms for some limited purpose-usually to hunt and kill game.14 To be clear, the notion that Blacks as a class were equally entitled to the right to possess arms for self-defense arguably did not enter the public conscience until Reconstruction. See Bruen, 597 U.S. at 60 (surveying the “outpouring of discussion . . . [during Reconstruction regarding] whether and how to secure constitutional rights for newly free slaves“). But what these and other exemptions demonstrate is that categorical bans on certain groups possessing
In sum, the burdens and justifications (Bruen‘s “how” and “why“) for laws disarming disfavored groups at the Founding are not “distinctly similar” to
3.
According to the Government, the Founding generation “would have understood” that the 18th-century felon had no right to possess a firearm because, historically, he faced death and total estate forfeiture for his crimes. Citing colonial and Founding era laws declaring miscellaneous offenses as either capital crimes or ones that resulted in civil forfeiture, the Government argues that these were the default penalties for committing a felony at that time. Since felons at the Founding were punished this harshly, the Government contends, it is consistent with our nation‘s history to disarm permanently the modern-day felon because that is far less severe a penalty. We reject this line of reasoning.
First, the history of punishing felonies at the Founding is far more nuanced than the Government lets on; the notion that all
Second, today‘s felon, in many respects, resembles nothing of his Founding-era counterpart, despite bearing the same label. Even as the newly formed states filled the pages of their penal codes with new felonies each passing year, “[t]he felony category” at the Founding still remained “a good deal narrower [then] than now.” Lange v. California, 141 S. Ct. 2011, 2023 (2021). The upshot is that “[m]any crimes classified as misdemeanors, or nonexistent, at common law are . . . felonies” today. Tennessee v. Garner, 471 U.S. 1, 14 (1985). Indeed, at least one of Duarte‘s prior felonies-vandalism-almost certainly would have been a misdemeanor. United States v. Collins, 854 F.3d 1324, 1333 (11th Cir. 2017) (explaining “the closest common-law offense for damaging another‘s property” was “malicious mischief,” which was punishable by a fine); see, e.g., Act of 1772, An Abridgment of the Laws of Pennsylvania 357 (Purdon ed. 1811) (“[A]ny person or persons [who] shall maliciously and voluntarily break . . . any brass or other knocker affixed to such door . . . [shall] pay the sum of twenty-five pounds.“).
So not all felonies now were felonies then, and many felonies then were punishable by a term of years-not execution, civil forfeiture, or life in prison. Nevertheless, it may well be that “the 18th- and 19th-century” laws traditionally punishing certain felonies with death, estate forfeiture, or a life sentence are the closest things to
Punishable with Death or Imprisonment in the State Prison, 1 The Laws of the State of New York 254 (1802) (committing any person “duly convicted . . . of any felony,” with certain enumerated exceptions, to a “term [of imprisonment] not more than fourteen years.“); See also 2 Timothy Cunningham, A New and Complete Law Dictionary (3d ed. 1783) (describing punishments for various felonies as ranging from death and estate forfeiture to imprisonment and hard labor).
“longstanding” felon firearm
That would all seem to be in step with Bruen. Yet the Government would have us go much further. We are asked to hold that “Congress[] . . . [can] define any . . . crime as a felony and thereby use it as the basis for a
This, in our view, “expand[s]” the historical felony category “far too broadly.” Bruen, 597 U.S. at 31. “Put simply, there is no historical basis” for Congress “to effectively declare” that committing “a[ny] crime punishable by imprisonment for a term exceeding one year,”
A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are “distinctly similar” to Duarte‘s underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender‘s estate. See Bruen, 597 U.S. at 27. Our pre-Bruen decision in Phillips largely endorsed this approach. After “assuming the propriety of felon firearm bans,” as Vongxay required, we still canvassed the history to determine whether “Phillips‘s predicate conviction for misprision of felony c[ould] constitutionally serve as the basis for a felon ban” under
Here, Duarte‘s underlying vandalism conviction, we have explained, likely would have made him a misdemeanant at the Founding. See infra at 59. Duarte‘s second predicate offense—felon in possession of a firearm,
IV.
We do not base our decision on the notion that felons should not be prohibited from possessing firearms. As a matter of policy,
Duarte is an American citizen, and thus one of “the people” whom the
REVERSED; CONVICTION VACATED.
M. SMITH, Circuit Judge, dissenting:
Whether felons have a
The Supreme Court‘s decision in New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022), did not overrule Vongxay. Instead, Bruen reiterates that the
* * *
In Vongxay, we held that
In our circuit, a decision of a prior three-judge panel is controlling until a superseding ruling comes from the Supreme Court or a panel of our court sitting en banc. See Miller, 335 F.3d at 893, 899–900. “[T]he issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Id. at 900. When the two authorities are “clearly irreconcilable,” we consider ourselves “bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.” Id. The “clearly irreconcilable” requirement is “a high standard.” Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (internal quotation marks omitted). “It is not enough for there to be ‘some tension’ between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to ‘cast doubt’ on the prior circuit precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (quoting United States v. Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per curiam)). “In order for us to ignore existing Ninth Circuit precedent . . . the reasoning and principles of [the later authority] would need to be so fundamentally inconsistent with our prior cases that our prior cases cannot stand.” In re Gilman, 887 F.3d 956, 962 (9th Cir. 2018). But if we “can apply our prior circuit precedent without running afoul of the intervening authority, we must do so.” Lair, 697 F.3d at 1207 (internal quotations marks omitted).
Nothing in the Supreme Court‘s decision in Bruen reflects a retreat from the Court‘s earlier statement in Heller that “longstanding prohibitions on the possession of firearms by felons and the mentally
Two of the Justices whose concurrences were essential to the judgment cabined the scope of Bruen on this very point. Justice Kavanaugh, joined by Chief Justice Roberts, wrote separately to “underscore two important points about the limits of the Court‘s decision.” Id. at 79 (Kavanaugh, J., joined by Roberts, C.J., concurring). His second point is germane here: “[A]s Heller and McDonald established and the Court today again explains, the
Justice Alito added in a separate concurrence that Bruen did not “disturb[] anything that [the Court] said in Heller or McDonald about restrictions that may be imposed on the possession or carrying of guns.” Id. at 72 (Alito, J., concurring) (cleaned up). He made clear: “All that we decide in this case is that the
Thus, Bruen did nothing to upend our decision in Vongxay. Bruen was a
(”Heller relied on text and history.“); Vongxay, 594 F.3d at 1118. We did not reference, let alone employ, the “means-end” scrutiny that Bruen rejected. See Bruen, 597 U.S. at 19; Vongxay, 594 F.3d at 1114–18. That we cited United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004), and United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), does not suggest otherwise. See Vongxay, 594 F.3d at 1116–17. Rather, we cited these Fifth Circuit cases merely as examples from our “examination of cases from other circuits and of historical gun restrictions [that] lends credence to the post-Heller viability of” United States v. Younger, 398 F.3d 1179, 1192 (9th Cir. 2005), in which we held that
For the reasons noted, Duarte fails to meet the “high standard” of Miller. See Rodriguez, 728 F.3d at 979. Vongxay is neither “clearly irreconcilable” nor “so fundamentally inconsistent” with Bruen that we must reject our precedent. See Miller, 335 F.3d at 900; In re Gilman, 887 F.3d at 962. To conclude otherwise is to read Bruen more broadly than, at a minimum, Chief Justice Roberts, Justice Alito, and Justice Kavanaugh intended. The Bruen majority did not fashion an entirely new
The majority errs by discarding Vongxay and conducting the
The majority appears to suggest that Vongxay‘s failure to apply the two-step framework set forth in Bruen is alone sufficient to render the decision null. But that view is not supported by Miller or its progeny. The Miller analysis focuses on the “theory” and “reasoning” underlying the decisions; the analysis turns on function, not form. See Miller, 335 F.3d at 900. Yet, the majority states: “Because Bruen had not yet clarified these particular analytical steps until after Vongxay was decided, Vongxay, predictably, failed to apply them” (cleaned up), citing our decision in United States v. Slade, 873 F.3d 712, 715 (9th Cir. 2017). Slade does not stand for such formalism. In Slade, we held that our decision in United States v. Jennen, 596 F.3d 594 (9th Cir. 2010), was clearly irreconcilable with later Supreme Court precedent because Jennen based its analysis on an implicit assumption that the Supreme Court thereafter expressly denounced. See Slade, 873 F.3d at 715. It was not the mere failure to consider “the analytical process [later] prescribed by [the Supreme Court]” that made the two decisions clearly irreconcilable but rather Jennen‘s incorrect legal assumption. See id. The circumstances here are different. We did not merely assume in Vongxay that a felon was excluded from “the people” whom the
Second, the majority contends that ”Vongxay‘s reliance on Younger is . . . ‘clearly irreconcilable’ with Bruen—separate and apart from Vongxay‘s failure to apply Bruen‘s methodology.” But Vongxay did not improperly rely on cases holding that the
Indeed, in a case decided six years after Vongxay, we expressly rejected the argument that Vongxay somehow invalidated itself by citing pre-Heller precedent:
Phillips argues that Vongxay is not good law. He contends that it conflicted with circuit precedent when it relied, in part, on United States v. Younger, 398 F.3d 1179 (9th Cir. 2005), a pre-Heller case that held that there is no individual right to bear arms under the
Second Amendment . See Vongxay, 594 F.3d at 1116.But Vongxay acknowledged Heller‘s holding—that there is an individual right under the Second Amendment —notwithstanding the panel‘s assertion that it was “still bound by Younger.” Id. . . . If the panel had truly considered itself bound by Younger in all respects, it would not have analyzed theSecond Amendment question at all, since there would have been no claim to an individual right. If Phillips believes that Vongxay is inconsistent with Heller, his remedy in this court is to seek rehearing en banc.
United States v. Phillips, 827 F.3d 1171, 1174 n.1 (9th Cir. 2016). Since the majority‘s theory here is identical to the argument rejected in Phillips (except referencing Bruen, rather than Heller), it is foreclosed.
The “clearly irreconcilable” requirement of Miller is a “high standard.” Rodriguez, 728 F.3d at 979. As long as we “can apply our prior circuit precedent without running afoul of the intervening authority, we must do so.” Lair, 697 F.3d at 1207. For the reasons noted, we can easily do so here. Nevertheless, the majority engages in a de novo
* * *
The majority reads Bruen, a Supreme Court decision reviewing New York‘s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation. As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).
One day—likely sooner, rather than later—the Supreme Court will address the constitutionality of
I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority‘s misapplication of Bruen.
Notes
We noted the following:
Finally, we observe that most scholars of the
Second Amendment agree that the right to bear arms was “inextricably tied to” the concept of a “virtuous citizen[ry]” that would protect society through “defensive use of arms against criminals, oppressive officials, and foreign enemies alike,” and that “the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) . . . .” Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (noting that felons “were excluded from the right to arms” because they were “deemed incapable of virtue“). We recognize, however, that the historical question has not been definitively resolved. See C. Kevin Marshall, Why Can‘t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol‘y 695, 714–28 (2009) (maintaining that bans on felon gun possession are neither long-standing nor supported by common law in the founding era).