*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50048 Plaintiff-Appellee , D.C. No. 2:20-cr- 00387-AB-1 v.
STEVEN DUARTE, AKA Shorty, OPINION
Defendant-Appellant . Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding Argued and Submitted En Banc December 11, 2024 Pasadena, California Filed May 9, 2025 Before: Mary H. Murguia, Chief Judge, and Kim McLane Wardlaw, Johnnie B. Rawlinson, Sandra S. Ikuta, John B.
Owens, Ryan D. Nelson, Daniel P. Collins, Lawrence VanDyke, Holly A. Thomas, Salvador Mendoza, Jr. and
Roopali H. Desai, Circuit Judges.
Opinion by Judge Wardlaw; Concurrence by Judge R. Nelson; Concurrence by Judge Collins; Partial Concurrence and Partial Dissent by Judge VanDyke SUMMARY [*]
Criminal Law
The en banc court affirmed Steven Duarte’s conviction for felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
During the pendency of this appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen , 597 U.S. 1 (2022), in which it clarified the standard for analyzing Second Amendment claims:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.
Duarte argued that under ’s framework, § 922(g)(1) is unconstitutional as applied to non-violent felons like him.
The parties disagreed as to the applicable standard of review. Because the outcome is the same under either de novo or plain error review, the en banc court assumed without deciding that de novo review applies, the standard for which Duarte advocated.
*3 standing alone, either of the two historical traditions proffered by the Government— viz. , (1) the recognized traditional power of legislatures with respect to felons, i.e. , those who have committed serious crimes; and (2) the limited historical power of legislatures, at the time of the founding, to disarm specified categories of persons—is sufficient to supply a basis for the categorical application of § 922(g)(1) to felons. In his view, § 922(g)(1) survives Second Amendment scrutiny only when these two historical traditions are taken together.
Judge VanDyke, joined by Judges Ikuta and R. Nelson as to Part I (Standard of Review), concurred in the judgment in part and dissented in part. As to the standard of review, he wrote (1) de novo review does not apply here under Fed. R. Crim. P. 12; (2) the plain error standard of review in Fed. R. Crim. P. 52(b) applies, and the majority should have affirmed the conviction on that ground; and (3) the en banc court should have used this opportunity to correct erroneous exceptions to Rule 52(b)’s plain error standard. Regarding the majority’s de novo review of the merits of Duarte’s Second Amendment claim, he wrote that the majority errs (1) by concluding that did not affect the holding or analysis of this court’s precedent rejecting Second Amendment challenges to § 922(g)(1); (2) by concluding that legislatures have unilateral discretion to disarm anyone by assigning the label “felon” to whatever conduct they desire; and (3) by reaching the broad conclusion that legislatures can disarm entire classes of individuals, even absent a specific showing of individual dangerousness or propensity to violence.
COUNSEL
William A. Glaser (argued), Attorney, Appellate Section; Lisa H. Miller, Deputy Assistant Attorney General; Nicole M. Argentieri, Principal Deputy Assistant Attorney General; Criminal Division, United States Department of Justice, Washington, D.C.; Suria M. Bahadue and Juan M. Rodriguez, Assistant United States Attorneys; Kyle Kahan, Special Assistant United States Attorney; Bram M. Alden and David R. Friedman, Assistant United States Attorneys, Criminal Appeals Section Chiefs; Mack E. Jenkins, Assistant United States Attorney, Criminal Division Chief; E. Martin Estrada, United States Attorney; Office of the *4 United States Attorney, United States Department of Justice, Los Angeles, California; for Plaintiff-Appellee.
Sonam A. H. Henderson (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender’s Office, Los Angeles, California, for Defendant-Appellant.
Katherine M. Hurrelbrink, Appellate Attorney; Kasha Castillo, Executive Director, Southern District of California; Federal Defenders of San Diego Inc., San Diego, California; 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 Defender Offices.
Matthew P. Cavedon and Clark M. Neily III, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute. Joseph G.S. Greenlee and Erin M. Erhardt, National Rifle Association of America, Institute for Legislative Action, Fairfax, Virginia, for Amici Curiae National Rifle Association of America and Firearms Policy Coalition. Neil K. Sawhney and Shilpi Agarwal, American Civil Liberties Union Foundation of Northern California, San Francisco, California; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; David D. Cole, American Civil Liberties Union Foundation, Washington, D.C.; Louise Melling, M. Yasmin Cader, Ria T. Mar, and Brandon Buskey, American Civil Liberties Union Foundation, New York, New York; Summer Lacey, American Civil Liberties Union Foundation of Southern California, Los Angeles, California for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties *5 USA V . D UARTE 6 Union of Nevada, American Civil Liberties Union of Arizona, and American Civil Liberties Union of Alaska. Alex Hemmer and Sarah A. Hunger, Deputy Solicitors General; Samantha Sherman, Assistant Attorney General; Jane E. Notz, Solicitor General; Kwame Raoul, Illinois Attorney General; Office of the Illinois Attorney General, Chicago, Illinois; Rob Bonta, California Attorney General, Office of the California Attorney General, Sacramento, California; Philip J. Weiser, Colorado Attorney General, Office of the Colorado Attorney General, William Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut; Kathleen Jennings, Delaware Attorney General, Office of the Delaware Attorney General, Wilmington, Delaware; Brian L. Schwalb, District of Columbia Attorney General, Office of the District of Columbia Attorney General, Washington, D.C.; Anne E. Lopez, Hawai’i Attorney General, Office of the Hawai’i Attorney General, Honolulu, Hawai’i; Aaron M. Frey, Maine Attorney General, Office of the Maine Attorney General, August, Maine; Anthony G. Brown, Maryland Attorney General, Office of the Maryland Attorney General, Baltimore, Maryland; Andrea J. Campbell, Commonwealth of Massachusetts Attorney General, Office of the Commonwealth of Massachusetts Attorney General, Boston, Massachusetts; Dana Nessel, Michigan Attorney General, Office of the Michigan Attorney General, Lansing, Michigan; Keith Ellison, Minnesota Attorney General, Office of the Minnesota Attorney General, St. Paul, Minnesota; Aaron D. Ford, Nevada Attorney General, Office of the Nevada Attorney General, Carson City, Nevada; Matthew J. Platkin, New Jersey Attorney General, Office of the New Jersey Attorney General, Trenton, New Jersey; Raùl Torrez, New Mexico Attorney General, Office of the New Mexico Attorney General, Albuquerque, New Mexico; Letitia James, New York Attorney General, Office of the New York Attorney General, New York, New York; Joshua H. Stein, North Carolina Attorney General, Office of the North Carolina Attorney General, Raleigh, North Carolina; Ellen F. Rosenblum, Oregon Attorney General, Office of the Oregon Attorney General, Salem, Oregon; Michelle A. Henry, Commonwealth of Pennsylvania Attorney General, Office of the Commonwealth of Pennsylvania Attorney *6 General, Harrisburg, Pennsylvania; Peter F. Neronha, Rhode Island Attorney General, Office of the Rhode Island Attorney General, Providence, Rhode Island; Charity Clark, Vermont Attorney General, Office of the Vermont Attorney General, Montpelier, Vermont; Robert W. Ferguson, Washington Attorney General, Office of the Washington Attorney General, Olympia, Washington; for Amici Curie Illinois, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
OPINION
WARDLAW, Circuit Judge:
18 U.S.C. § 922(g)(1) prohibits those who have been
“convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year” from receiving
or possessing a firearm. Today, § 922(g)(1) is one of the
most significant gun laws in our modern regulatory
framework. Section 922(g)(1) accounts for the highest
percentage of convictions under § 922(g),
[1]
and is considered
the “cornerstone” of the federal background check system
for firearm purchases. Following the Supreme Court’s
decision in
District of Columbia v. Heller
, 554 U.S. 570
(2008), every circuit to address the facial constitutionality of
§ 922(g)(1) upheld its categorical constitutionality.
Medina
v. Whitaker
,
Other circuits have rejected as-applied challenges, but
have left open the possibility that § 922(g)(1) might be
unconstitutional as applied to at least
some
felons.
See
United States v. Diaz
, 116 F.4th 458, 471 (5th Cir. 2024)
(rejecting an as-applied challenge because the defendant’s
underlying felony was sufficiently similar to a death-eligible
felony at the founding);
United States v. Williams
, 113 F.4th
637, 661–62 (6th Cir. 2024) (rejecting an as-applied
challenge because
the defendant’s criminal record
sufficiently showed that he was dangerous enough to warrant
disarmament). By contrast, the Third Circuit has held that
§ 922(g)(1) is unconstitutional as applied to a felon who was
convicted of making a false statement to secure food stamps.
See Range v. Att’y Gen.
, 124 F.4th 218, 222–23 (3d Cir.
2024) (en banc). And, as of the date of this writing, the First
and Second Circuits have declined to address constitutional
challenges to § 922(g)(1) on the merits, while the Seventh
Circuit has yet to definitively resolve an as-applied
challenge.
See United States v. Langston
, 110 F.4th 408,
419–20 (1st Cir. 2024) (rejecting an as-applied challenge
*9
because there was no “plain” error);
United States v. Caves
,
No. 23-6176-CR,
Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte.
I. Factual and Procedural History On March 20, 2020, at approximately 9:30 p.m., Inglewood police officers observed a car drive through a stop sign. Duarte was the only passenger in the vehicle. As officers activated their car’s lights and sirens, Duarte threw a pistol, without its magazine, out of the car’s rear window. After asking the driver and Duarte to step out of the vehicle, officers searched the car and found a magazine loaded with six .380-caliber bullets stuffed between the center console and the front passenger seat, within reach from the passenger compartment. The magazine fit “perfectly” into the discarded pistol. In September 2020, a federal grand jury charged Duarte with a single count of violating § 922(g)(1).
The indictment charged Duarte with knowingly possessing a firearm with knowledge that he had previously been convicted of at least one of five felonies: (1) Vandalism, in violation of California Penal Code Section 594(a), in 2013; (2) Felon in Possession of a Firearm, in violation of California Penal Code Section 29800(a)(1), in 2016; (3) Evading a Peace Officer, in violation of California Vehicle Code Section 2800.2, in 2016; (4) Possession of a Controlled Substance for Sale, in violation of California Health and Safety Code Section 11351.5, in 2016; and (5) Evading a Peace Officer, in violation of California Vehicle Code Section 2800.2, in 2019.
Following a jury verdict of guilty, the district court sentenced Duarte to a below-guidelines sentence of 51 months in prison. Duarte timely filed his notice of appeal on March 9, 2022. Duarte did not challenge his indictment or conviction as violating his Second Amendment rights before the district court.
On June 23, 2022, during the pendency of Duarte’s *10 appeal, the Supreme Court decided Bruen . Based on this new authority, Duarte argued in his opening brief to our court that because he has only non-violent prior felony convictions, § 922(g)(1) is unconstitutional as applied to him. He argued that our prior precedent upholding felon-in- possession laws as applied to non-violent felons is clearly irreconcilable with Bruen . He further argued that under Federal Rule of Criminal Procedure 12(c)(3) he demonstrated good cause to raise this defect in the indictment now, as it had been previously foreclosed by Ninth Circuit precedent.
A divided panel of our court accepted Duarte’s Second
Amendment argument.
See United States v. Duarte
, 101
F.4th 657, 661 (9th Cir. 2024),
reh’g en banc granted,
opinion vacated
,
A majority of the active judges of our court voted to rehear this appeal en banc. Having done so, although we agree that Duarte demonstrated good cause under Federal Rule of Criminal Procedure 12(c)(3), we now hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Duarte.
II. Standard of Review
The parties disagree as to whether the good cause *11 standard in Federal Rule of Criminal Procedure 12(c)(3) or the plain error standard in Federal Rule of Criminal Procedure 52(b) governs our review of Duarte’s *12 USA V . D UARTE 15 secured by the Second Amendment is not unlimited,” id. at 626. The Second Amendment does not provide an individual “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. Rather, the Supreme Court in Heller clarified that:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626–27 (emphasis added). The Court further emphasized that such limitations on the right to bear arms were “presumptively lawful regulatory measures.” Id. at 627 n.26.
Relying on this declaration, we have recognized that
“[n]othing in
Heller
can be read legitimately to cast doubt on
the constitutionality of § 922(g)(1)” and that “felons are
categorically different from the individuals who have a
fundamental right to bear arms.”
Vongxay
,
Bruen
did not change or alter this aspect of
Heller
.
Rather,
Bruen
and
Rahimi
support
Vongxay
’s holding that
§ 922(g)(1) constitutionally prohibits the possession of
firearms by felons. First, the
Bruen
Court largely derived its
constitutional test from
Heller
and stated that its analysis
was “consistent with
Heller
and
McDonald
.”
Second, Bruen limited the scope of its opinion to “law- abiding citizens,” evidenced by its use of the term fourteen times throughout the opinion. See, e.g ., id. at 8–9 (“In [ Heller and McDonald ], we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” (emphasis added)); id. at 26 (“The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.” (citation omitted and emphasis added)); id. at 60 (“None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.” (emphasis added)).
Third, six justices, including three in the majority, emphasized that Bruen did not disturb the limiting principles in Heller and McDonald . 597 U.S. at 72 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.”); id. at 80–81 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting Heller ’s language); id. at 129 (Breyer, J., dissenting, joined by Sotomayor and Kagan, JJ.) (“Like Justice Kavanaugh, I understand the Court’s opinion today to cast no doubt on that aspect of Heller ’s holding.”).
Finally, the majority clarified that “nothing in our analysis should be interpreted to suggest the *14 unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” [5] Id. at 38 n.9 (majority opinion). Justifying this reservation, the Supreme Court explained that “shall issue” laws require background checks for the very purpose of ensuring that licenses are not issued to felons:
Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, *15 that Heller “recognized a few categories of traditional exceptions to the [Second Amendment] right,” including the “longstanding prohibitions on the possession of firearms by felons” (quotation marks omitted)). Indeed, the Supreme Court was careful to note that “we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Id. at 698 (majority opinion) (citing Heller ,554 U.S. at 626 .).
Together, these repeated and consistent “assurances” make clear that felon-in-possession laws, like § 922(g)(1), are presumptively constitutional, demonstrating that our holding in Vongxay remains consistent with the Supreme Court’s articulation of Second Amendment rights. Further, these “assurances” recognize a historical tradition of firearm regulation that supports the categorical application of § 922(g)(1) to felons like Duarte. See Jackson , 110 F.4th at 1125 (“Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”). Our application of Bruen ’s constitutional test to Duarte’s conduct confirms this reading.
B. Bruen Step One: Duarte’s Conduct Is Covered by
the Second Amendment.
Turning to the application of , “[w]e first consider
whether the Second Amendment’s plain text covers an
individual’s proposed course of conduct.”
United States v.
Perez-Garcia
,
We conclude that Duarte’s proposed course of conduct
is covered under the plain text of the Second Amendment.
“The text of the Second Amendment refers to the right of
‘the people’ to keep and bear arms.”
Id.
at 1178 (citing U.S.
Const. amend. II). As the Court in
Heller
observed, “‘[t]he
people’ seems to have been a term of art employed in select
parts of the Constitution[,] . . . refer[ring] to a class of
persons who are part of a national community or who have
otherwise developed sufficient connection with this country
to be considered part of that community.”
Id.
at 580.
Therefore, the
Heller
Court instructed that we start “with a
strong presumption that the Second Amendment right is
exercised individually and belongs to all Americans.”
Id.
at
581. Accordingly, because Duarte is undoubtedly a member
of the national community, he is part of “the people” and the
“Constitution presumptively protects” his right to possess a
firearm. ,
Nonetheless, the Government contends that Duarte does not fall within the scope of the Second Amendment because of his status as a felon. The Government first relies on a “massively popular,” Heller , 554 U.S. at 616, treatise by Thomas Cooley, which states that “[c]ertain classes have been almost universally excluded” from “the people,” including “the idiot, the lunatic, and the felon, on obvious grounds.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 28–29 (Little, Brown & Co., 1st ed. 1868). And in line with this view, the Government notes that historically felons could be excluded from certain rights, such as the right to hold office and serve on juries. Thus, the Government reasons that felons are constitutionally excludable from the scope of the Second Amendment.
However, this passage from Cooley does not address the
scope of constitutionally protected individual rights, like the
one contained in the Second Amendment. Rather, Cooley’s
description of certain groups excluded from “the people” is
derived from his discussion of “[w]ho are the
people
in
whom is vested the sovereignty of the State?”
Id.
at 28.
*17
There, Cooley recognizes that “although all persons are
under the protection of the government, and obliged to
conform their action to its laws, there
are some who are
altogether excluded from participation in the government
.”
Id.
(emphasis added). In other words, Cooley’s passage
refers to “elective franchise” and those who “should be
admitted to a voice in the government.”
Id.
at 29;
see also
Williams
,
These collective rights are distinct from individual
rights, such as the rights set forth in the First, Second, and
Fourth Amendments.
See Kanter v. Barr
,
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.
Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 267–68 (Little, Brown & Co. 1880) (second emphasis added). And in describing the Second Amendment, Cooley observes that its meaning “undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms.” Id. at 271.
This view comports with how other individual rights like
those of the First and Fourth Amendments—which are rights
*18
held by “the people”—apply to felons.
See Pell v.
Procunier
, 417 U.S. 817, 822 (1974) (“[A] prison inmate
retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of
the corrections
system.”);
United States v. Lara
,
Next, the Government relies on language in Vongxay where we observed:
[M]ost 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).”
2016) (en banc) (citing
Vongxay
,
same meaning in the Second Amendment as it does in the First and
Fourth Amendments because of
Heller
and
Bruen
’s use of the language
“law-abiding” citizens. Although we recognize that this language limits
Heller
and ’s holdings, it does not follow that it also limits the
scope of the Second Amendment.
See Rahimi
,
*20 C. Bruen Step Two: Section 922(g)(1) Is Consistent with Our Historical Tradition of Firearm
Regulation.
Turning to the second step of the
Bruen
analysis, we hold
that the Government has met its burden of showing that
§ 922(g)(1) “is consistent with the Nation’s historical
tradition of firearm regulation.”
Bruen
,
Under
Bruen
, courts must engage in analogical reasoning
to determine “whether the modern regulation is ‘relevantly
similar’ to historical laws and traditions, . . . so as to
‘evince[ ] a comparable tradition of regulation.’”
Perez-
Garcia
,
Furthermore, not all historical evidence is entitled to equal weight. See Bruen , 597 U.S. at 34. Because our inquiry focuses on interpreting the Second Amendment as the founding generation would have understood it, we primarily look to historical regulations extant when the Second and Fourteenth Amendments were adopted in 1791 and 1868, respectively. See id. However, we may consider pre- and post-ratification history to the extent that it does not contravene founding-era evidence. See id. at 35–36, 39. In sum, ’s historical test requires that we attempt to place ourselves in the shoes of the founding generation, and to evaluate from this point of view whether the present regulation would be consistent with its understanding of the Second Amendment.
To support the application of § 922(g)(1) to Duarte, the Government proffers a variety of historical sources that evince two regulatory principles that: (1) legislatures may disarm those who have committed the most serious crimes; *21 and (2) legislatures may categorically disarm those they deem dangerous, without an individualized determination of dangerousness. We address each in turn, and agree that either supplies a basis for the categorical application of § 922(g)(1) to felons. [9]
1. Historical Felony Punishments.
First, “death was ‘the standard penalty for all serious
crimes’ at the time of the founding.”
Bucklew v. Precythe
,
*23
USA V . D UARTE 29
Indeed, pre- and post-ratification history support the
view that legislatures could disarm those who committed the
most serious crimes. The 1689 English Bill of Rights—“the
‘predecessor to our Second Amendment’”—guaranteed that
“Protestants . . . may have Arms for their Defence suitable
to their Conditions, and
as allowed by Law
[.]” , 597
U.S. at 44 (emphasis added) (citations and quotation marks
omitted). “The purpose of this clause, according to
historians, was to leave no doubt that it was Parliament that
had regulatory power over firearms, not the Crown.”
Atkinson v. Garland
, 70 F.4th 1018, 1031 (7th Cir. 2023)
(Wood, J., dissenting) (citing Carl T. Bogus,
The Hidden
History of the Second Amendment
, 31 U.C. Davis L. Rev.
309, 379–84 (1998)). And “[i]n 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.’”
Perez-Garcia
,
Furthermore, in 1820, one of the nation’s “best known proponents of abolishing capital punishment, Edward Livingston,” prepared a systematic code of criminal law for Louisiana, which replaced the death penalty for crimes such as forgery, perjury, and fraud with permanent forfeiture of certain rights, including the “right of bearing arms.” Range , 124 F.4th at 271–72 (Krause, J., concurring); See Edward Livingston, A System of Penal Law for the State of Louisiana 377, 378 (Phila., J. Kay, Jun. & Bro., Pittsburgh, J.L. Kay & Co. 1833) (including the right to bear arms as a civil right that may be forfeited); id. at 393 (between three and seven years’ imprisonment and permanent forfeiture of civil rights for perjury); id. at 409 (between seven and fifteen years’ imprisonment and permanent forfeiture of civil rights for forgery). Livingston’s work won acclaim from founders such as Thomas Jefferson, James Madison, Justice Joseph Story, and Chief Justice John Marshall. See Range , 124 *24 F.4th at 272 (Krause, J., concurring). [12] Though these codes were ultimately not adopted, the creation and reception of them serves as evidence of an unbroken understanding that the legislature could permanently disarm those who committed the most serious crimes consistent with the Second Amendment. See id.
The motivations for these historical punishments are relevantly similar to the justification for § 922(g)(1). “The purpose of capital punishment in colonial America was threefold: deterrence, retribution, and penitence.” Diaz , 116 F.4th at 469. Likewise, “[t]he precursor to § 922(g)(1) . . . was enacted to ‘bar possession of a firearm from persons whose prior behaviors have established their violent tendencies.’” Id. (quoting 114 Cong. Rec. 14773 (daily ed. May 23, 1968) (statement of Sen. Russell Long of Louisiana)). Thus, historical felony punishments are relevantly similar—sharing the “how” and “why”—to § 922(g)(1) and support its application to Duarte and all other felons.
In response, Duarte first challenges the frequency with which the punishments of death and estate forfeiture were imposed at the time of the founding. Specifically, he *25 otherwise would “force[] 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber’ . . . [a]nd it assumes that founding-era legislatures maximally exercised their power to regulate.” Rahimi , 602 U.S. at 739–40 (Barrett, J., concurring). Instead, the exposure to capital punishment and estate forfeiture is sufficient to demonstrate that the founding generation would view § 922(g)(1)’s permanent disarmament as consistent with the Second Amendment.
Duarte next contends that, even assuming that death and
estate forfeiture were the standard punishments at the time
of the founding, today’s felonies do not correspond with
felonies at the founding that were eligible for death and
estate forfeiture.
See Lange v. California
,
However, this discretion is consistent with our nation’s
history. Since the founding, legislatures have been permitted
to identify conduct that they deem the most serious and to
punish perpetrators with severe deprivations of liberty.
See
Jackson
,
To the extent that Duarte contends that we should limit
the application of § 922(g)(1) to felonies that at the time of
the founding were punished with death, a life sentence, or
estate forfeiture, we reject such a narrow view of history.
Indeed, under Duarte’s and the now-vacated panel opinion’s
approach, modern felonies that have been considered closely
related to gun violence and presenting a danger to the
community such as drug trafficking offenses could not form
the basis for a § 922(g)(1) conviction.
See Duarte
, 101 F.4th
at 691 n.16 (noting that criminalizing drug possession did
not gain momentum until the early 20th century, and modern
“illicit drugs” were legal “for a long stretch of this country’s
*26
history”); Dissenting Op. at 99–100 (“[T]here are no
comparable analogues that allowed for disarmament based
upon drug offenses.”);
see also Williams
,
2. Laws Categorically Disarming Dangerous
Individuals.
Second, the Government points to a historical tradition
of disarming “categories of persons thought by a legislature
to present a special danger of misuse.”
Rahimi
, 602 U.S. at
698. The historical record reveals a host of regulations that
disarmed those whom the legislature deemed dangerous on
a categorical basis.
See Jackson
, 110 F.4th at 1126;
Atkinson
,
“[I]n the late 1600s, . . . the government disarmed non-
Anglican Protestants who refused to participate in the
Church of England, . . . and those who were ‘dangerous to
the Peace of the Kingdom.”
Jackson
, 110 F.4th at 1126
(citations omitted). The same Parliament that enacted the
English Bill of Rights also disarmed Catholics who refused
to take an oath renouncing their faith, except as necessary
for self-defense.
See Range
,
Consistent with this tradition, through the late 1800s states continued to promulgate categorical restrictions on the possession of firearms by certain groups of people. These laws included restrictions on: (1) the sale of firearms to, or the possession of firearms by, individuals below specified ages; [14] (2) the sale of firearms to those of unsound mind; [15] (3) the possession of firearms by those who were *28 Tramps were an “object of fear” and described by one legal scholar as “the chrysalis of every species of criminal.” Lawrence Friedman, Crime and Punishment in American History 102 (1993) (quotation marks omitted). Indeed, the Ohio Supreme Court described tramps as follows:
[T]he genus tramp, in this country, is a public enemy. He is numerous, and he is dangerous. He is a nomad, a wanderer on the face of the earth, with his hand against every honest *29 tradition. And our historical tradition reveals that legislatures were permitted to categorically disarm those they deemed dangerous without having to perform “an individualized determination of dangerousness as to each [18] See Range ,124 F.4th at 267 (Krause, J., concurring) (noting that “state constitutional rights to bear arms . . . were understood to be coextensive with the Second Amendment”); see also William Baude & Robert Leider, The General-Law Right to Bear Arms , 99 Notre Dame L. Rev. 1467, 1472 (2024) (explaining that early American courts described the right to arms codified in “the English Bill of Rights, the Second Amendment to the U.S. Constitution, and various state constitutions as codifying the same preexisting right”).
person in a class of prohibited persons.”
Jackson
, 110 F.4th
at 1128;
see Atkinson
, 70 F.4th at 1035 (Wood, J.,
dissenting) (“[S]ince the founding, governments have been
understood to have the power to single out categories of
persons who will face total disarmament based on the danger
they pose to the political community if armed.”). “[F]our
centuries of unbroken Anglo-American history shows that
legislatures consistently disarmed entire categories of people
who were presumed to pose a special risk of misusing
firearms.”
Range
,
Section 922(g)(1) fits within this tradition. “Congress
obviously determined that firearms must be kept away from
persons, such as those convicted of serious crimes, who
might be expected to misuse them.”
Dickerson v. New
Banner Inst., Inc.
, 460 U.S. 103, 119 (1983). And this
legislative judgment comports with our historical tradition
of regulating firearm possession by those who commit the
most serious crimes to protect the public.
Supra
at 26–33;
see Hunt
, 123 F.4th at 708.
[19]
Accordingly, our historical
*30
USA V . D UARTE 38
tradition of categorically disarming those whom the
legislature determines to represent a “special danger of
misuse” also supports the application of § 922(g)(1) to
felons, like Duarte, who assert that their felonies were non-
violent.
Rahimi
,
. . .
In sum, these laws demonstrate that § 922(g)(1)’s
permanent and categorical disarmament of felons is
consistent with this Nation’s historical tradition of firearm
regulations. Legislatures have historically retained the
discretion to punish those who commit the most severe
crimes with permanent deprivations of liberty, and
legislatures could disarm on a categorical basis those who
present a “special danger of misuse” of firearms.
Rahimi
,
602 U.S. at 698. We agree with the Fourth and Eighth
Circuits that either historical tradition is sufficient to uphold
the application of § 922(g)(1) to all felons.
See Jackson
, 110
F.4th at 1127–28;
Hunt
,
Section 922(g)(1) “is by no means identical to these
[historical laws], but it does not need to be.”
Rahimi
, 602
U.S. at 698. History does not require “felony-by-felony
litigation” to support the application of § 922(g)(1).
Jackson
,
*31 Finally, we recognize that these historical principles “may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated.” Jackson , 110 F.4th at 1129. However, these are the fruits of Bruen ’s constitutional test. See id. ; see also Heller v. District of Columbia , 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“[G]overnments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny.” (emphasis omitted)).
IV. Conclusion
Accordingly, § 922(g)(1) is constitutional as applied to Duarte and other non-violent felons. We AFFIRM Duarte’s conviction.
R. NELSON, Circuit Judge, joined by IKUTA, Circuit Judge, concurring in the judgment:
Because Duarte failed to raise his Second Amendment argument before the district court, we must apply plain error review. Applying that standard, there was no plain error by the district court, and I would uphold Duarte’s conviction. Because I reach this conclusion, I would not reach the merits of Duarte’s Second Amendment challenge under de novo review.
§ 922(g)(1) to non-violent felons.
Compare Rahimi
,
COLLINS, Circuit Judge, concurring in the judgment:
I agree with the majority’s ultimate conclusion that Steven Duarte’s as-applied Second Amendment challenge to his conviction under 18 U.S.C. § 922(g)(1) fails on the merits even under de novo review. But I disagree with the majority’s conclusion that, standing alone , either of the two historical traditions proffered by the Government— viz ., (1) the recognized traditional power of legislatures with respect to felons, i.e. , those who have committed serious crimes; and (2) the limited historical power of legislatures, at the time of the founding, to disarm specified categories of *32 persons—is sufficient to “suppl[y] a basis for the categorical application of § 922(g)(1) to felons.” See Opin. at 26. In my view, § 922(g)(1) survives Second Amendment scrutiny only when these two historical traditions are “[t]aken together.” United States v. Rahimi , 602 U.S. 680, 698 (2024). I therefore concur only in the judgment.
I
The Second Amendment provides: “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.” U.S. C ONST ., amend. II. In
District of Columbia
v. Heller
,
In determining whether a challenged law is “relevantly similar” to particular historical examples of permissible firearm regulations and fits within the “principles that underpin [the] regulatory tradition” reflected in such examples, a court must consider “[w]hy and how the [challenged] regulation burdens the right.” Rahimi , 602 U.S. at 692 (citation omitted). Specifically, the court must consider “[1] whether modern and historical regulations impose a comparable burden on the right of armed self- defense” ( i.e. , the “how”); and “[2] whether that burden is comparably justified” ( i.e. , the “why”). , 597 U.S. at 29 (citations omitted). The Rahimi Court further clarified that, under the requisite historically based approach, courts should not evaluate particular historical examples in isolation, but should consider whether, “[t]aken together,” they reflect a general principle that helps to define the contours of the Second Amendment right. Rahimi , 602 U.S. at 698 (citing two particular historical examples and holding that, “[t]aken together,” these examples confirm the general principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” consistent with the Second Amendment).
II
Applying this framework, I agree that § 922(g)(1)’s criminal prohibition of possession of firearms by convicted felons is consistent with the Second Amendment. In reaching this conclusion, I think it is unnecessary to address, *34 USA V . D UARTE 43 or to rely on, the Government’s argument that felons are not included within the “people” whose rights are protected by the “plain text” of the Second Amendment. , 597 U.S. at 24. Even assuming arguendo that felons are presumptively covered by the literal text of the Second Amendment, I agree that the Government has established that § 922(g)(1) “is consistent with the Nation’s historical tradition of firearm regulation.” Id .
A
I turn first to the Government’s argument that the
historical tradition at the time of the Second Amendment’s
adoption confirms that the right guaranteed by that
Amendment does not “prohibit[] the enactment of laws
banning the possession of guns by categories of persons
thought by a legislature to present a special danger of
misuse.”
Rahimi
,
1
As
Rahimi
noted, English law over the centuries allowed
for the disarmament of certain categories of persons,
including “not only brigands and highwaymen but also
political opponents and disfavored religious groups.”
Rahimi
, 602 U.S. at 694. In response to the perceived
abusive disarmament practices of “the Stuart Kings Charles
II and James II,”
Heller
,
Laws generally disarming Catholics also were enacted in some of the American colonies during the French and Indian War (1756–1763), which “was perceived by many in [England] as a war between Protestantism and Catholicism.” Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons From Possessing Arms , 20 W YO . L. R EV . 249, 263 (2020). In particular, the colonial legislatures in Pennsylvania, Maryland, and Virginia enacted laws generally barring Catholics from possessing firearms and ammunition. [2]
*36 Papist,” who refuses to take an oath of allegiance, “shall, or may have, or keep in his house or elsewhere, or in the possession of any other person to his use, or at his disposition, any arms, weapons, gunpowder or ammunition”).
[3] See , e.g. , A CTS OF A SSEMBLY OF THE P ROVINCE OF M ARYLAND , ch. 4, § 3 (Annapolis, Jonas Green 1763) (1763 statute providing that “it shall not be lawful for any Person or Persons within this Province, to sell or give to any Indian Woman or Child, any Gun-powder, Shot, or Lead, whatsoever, nor to any Indian Man within this Province, more than the Quantity of one Pound of Gun-powder, and Six Pounds of Shot or Lead, at any one Time”); 6 T HE S TATUTES AT L ARGE OF P ENNSYLVANIA FROM 1682 TO 1801, at 319–20 (James T. Mitchell & Henry Flanders eds., Wm. Stanley Ray 1899) (1763 statute providing for a fine, 39 lashes, and 12 months in the “common gaol of the county” “if any person or persons whatsoever shall directly or indirectly give to, sell, barter or exchange with any Indian or Indians whatsoever any guns, gunpowder, shot, bullets, lead or other warlike stores without license from” designated officials); A CTS AND L AWS OF H IS M AJESTY ’ S P ROVINCE OF N EW - H AMPSHIRE IN N EW -E NGLAND 164 (Portsmouth, Daniel Fowle & Robert States, slaves. [4] Moreover, during the Revolutionary War, the Continental Congress in March 1776 “recommended to the several assemblies, conventions, and councils or committees of safety of the United Colonies, immediately to cause all persons to be disarmed within their respective colonies, 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.” See 4 J OURNALS OF THE C ONTINENTAL C ONGRESS 1774–1789, at 205 (Washington, D.C., Worthington Chauncey Ford ed., Library of Congress 1906). Heeding the Continental Congress’s call, several States enacted laws disarming Fowle 1771) (1721 statute prohibiting anyone from supplying Indians “with any provision, cloathing, guns, powder shott, bullets, or any other goods”); see generally 1 F RANCIS P AUL P RUCHA , T HE G REAT F ATHER : T HE U NITED S TATES G OVERNMENT AND THE A MERICAN I NDIANS 18–19 (Lincoln, Univ. of Neb. Press 1984). OLLECTION OF C EING A B ; ARGE L TATUTES AT S HE 4 T , e.g. , See A LL
THE L AWS OF V IRGINIA F ROM THE F IRST S ESSION OF THE L EGISLATURE IN THE Y EAR 1619, at 131 (Richmond, William Waller Hening ed., Franklin Press 1820) (1723 statute providing that “every gun, and all powder and shot, and every such club or weapon . . . found or taken in the hands, custody, or possession of any such negro, mulatto, or Indian, shall be taken away”); A C ODIFICATION OF THE S TATUTE L AW OF G EORGIA 813 (Savannah, William A. Hotchkiss ed., John M. Cooper 1845) (1770 statute providing that, with certain exceptions, “[i]t shall not be lawful for any slave to carry and make use of firearms, or any offensive weapon whatsoever”); 7 T HE S TATUTES AT L ARGE OF S OUTH *37 C AROLINA 410 (Columbia, David J. McCord ed., A.S. Johnston 1840) (1740 statute providing that “it shall be lawful for all masters, overseers and other persons whomsoever, to apprehend and take up any . . . negro or other slave or slaves, met or found out of the plantation of his or their master or mistress, . . . if he or they be armed with such offensive weapons,” and “him or them to disarm”).
loyalists or those who refused to take loyalty oaths. [5] In fact, even before the Continental Congress issued its recommendation, at least one State had already prohibited *38 USA V . D UARTE 48 loyalists from bearing arms. See T HE P UBLIC R ECORDS OF THE C OLONY OF C ONNECTICUT FROM M AY , TO J UNE , 1776, at 192–95 (Hartford, Charles J. Hoadly ed., Lockwood & Brainard Co. 1890) (1775 statute pre-dating the Continental Congress’s recommendation and requiring that any accused loyalist who failed to show he was “not inimical” to the colonies be “disarmed”).
2
The tradition that emerges from these historical
precedents is not particularly impressive. Today,
other
constitutional provisions would independently prohibit
racially or religiously based discriminatory bans on gun
ownership by Catholics, Blacks, or Native Americans (who,
since at least 1924, have been recognized as full citizens).
See
U.S. C ONST ., amends. I, V, XIV. And, of course, slavery
was abolished by the Thirteenth Amendment. Moreover, the
Supreme Court has recognized that, in light of the
“polemical reactions by Americans” to the British
government’s efforts to “disarm the inhabitants of the most
rebellious areas” of the colonies,
Heller
,
The difficult question nonetheless remains as to what
“principles” should be understood to “underpin” this
particular “regulatory tradition,” keeping in mind that a
modern law need only be “
relevantly
similar to laws that our
tradition is understood to permit.”
Rahimi
,
other hand, the Supreme Court has made clear that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Rahimi , 602 U.S at 691–92.
The key to steering between these two extremes, in my
view, is to remember that “history” must always remain the
“guide” when it comes to recognizing and defining the scope
of any asserted exclusions from the Second Amendment’s
reach. ,
The Court, however, has also made clear that the historical antecedent only needs to be “relevantly” similar, and the Rahimi Court held, in particular, that a historical tradition allowing the imposition of other, more severe penalties than disarmament on a given class of persons may provide a sufficient analogue to support allowing such persons to be disarmed. See Rahimi , 602 U.S. at 698–99 (citation omitted). Thus, in rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(8)(C)(i), which forbids gun possession by any person who is subject to a restraining order that “includes a finding that he poses ‘a credible threat to the physical safety’ of a protected person,” Rahimi , 602 U.S. at 693 (quoting 18 U.S.C. § 922(g)(8)(C)(i)), Rahimi held that the so-called “going armed laws” provided, together with other laws, a relevant historical analogue, id. at 699. The “going armed laws prohibited ‘riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land,’” and the penalty for violation of such laws was “‘forfeiture of the arms . . . and imprisonment.’” Id . at 697 (alterations in original) (quoting 4 W ILLIAM B LACKSTONE , C OMMENTARIES ON THE L AWS OF E NGLAND 149 (10th ed. 1787)). The Court held that § 922(g)(8)(C)(i) shared the same objective ( i.e. , the same “why”) as the “going armed laws, “ because they both “restrict[ed] gun use to mitigate demonstrated threats of physical violence.” Id . at 698. The manner in which the going armed laws burdened gun possession was also sufficiently analogous, because § 922(g)(8)(C)(i) effectively imposes “temporary disarmament” when a restraining order is in effect, which entails a “ lesser restriction ” than “ imprisonment ” (which was the penalty imposed by the “going armed laws”). Id . at 699 (emphasis added). [6]
As applicable here,
Rahimi
thus teaches that a historical
precedent establishing that, at the time of the founding, a
discrete group of persons could
categorically
be subjected to
legal disabilities and penalties that were equivalent to, or
more onerous than, disarmament would provide a
“relevantly similar” “historical analogue” that would suffice
*41
created by Congress are “inferior Courts” to the “one supreme Court”). USA V . D UARTE 52
to support a legislative determination to categorically disarm
such persons.
Rahimi
,
B
Against this backdrop, the question is whether there is a
relevant historically based category of persons who, at the
time of the founding, could be subjected to legal disabilities
that were equivalent to, or more severe than, § 922(g)(1)’s
lifetime prohibition on firearm possession. The answer to
that question is yes.
See Heller
,
1
The category of serious criminal offenses known as “felonies” was well-recognized at the founding. As explained in several influential contemporary legal treatises, felonies were those crimes deemed to be sufficiently serious, either at common law or by legislative enactment, so as to warrant capital punishment and forfeiture of the convicted individual’s estate. See 4 W ILLIAM B LACKSTONE , C OMMENTARIES ON THE L AWS OF E NGLAND 94–95 (Oxford, Clarendon Press 1st ed. 1769) (hereinafter “B LACKSTONE ”) (“Felony, in the general acceptance of our English law, compri[s]es every species of crime, which occasioned at common law the forfeiture of lands or goods” and “for which a capital punishment either is or was liable to be inflicted”); 1 M ATTHEW H ALE , T HE H ISTORY OF THE P LEAS OF THE C ROWN 703 (E & R. Nutt & R. Gosling 1st ed. 1736) (hereinafter “H ALE ”) (“Generally if an act of parliament be, that if a man commit such an act, he shall have judgment of life and member, this makes the offense [a] felony, and this was ordinarily the clause used in ancient statutes.”); 1 W ILLIAM H AWKINS , A T REATISE OF THE P LEAS OF THE .
C ROWN 107 (London, E. Richardson & C. Lintot 4th ed. 1762) (hereinafter “H AWKINS ”) (stating that “Felonies” included those offenses expressly denominated as such, as well as “also those which are decreed to have or undergo Judgment of Life and Member by any Statute”).
The gravity of felonies was also understood as being in contrast to the category of less serious crimes known as misdemeanors. “In the English law[,] misdemeanour [was] generally used in contradistinction to felony ,” 5 S T G EORGE T UCKER , B LACKSTONE ’ S C OMMENTARIES : W ITH N OTES OF R EFERENCE TO THE C ONSTITUTION AND L AWS OF THE *43 F EDERAL G OVERNMENT OF THE U NITED S TATES ; AND OF THE C OMMONWEALTH OF V IRGINIA 5 n.1 (Philadelphia, William Young Birch & Abraham Small 1803) (hereinafter “S T . G EORGE T UCKER ”), and referred to a crime that “may be punished, according to the degree of the . . . offense, by fine, or imprisonment, or both,” R ICHARD B URN & J OHN B URN , A N EW L AW D ICTIONARY 472 (Dublin, Brett Smith 1792) (hereinafter “B URN & B URN ”); see , e.g. , 4 B LACKSTONE , supra , at 99–100, 162–63 (distinguishing between misdemeanors and felonies).
Influential dictionaries at the time of the Second Amendment’s ratification reflected a similar understanding that the term “felony” referred to the category of crime that was most serious and that was typically punishable by death. See , e.g. , S AMUEL J OHNSON , A D ICTIONARY OF THE E NGLISH L ANGUAGE (London, 10th ed. 1792) (defining a “felony” as “[a] crime denounced capital by the law”); T HOMAS S HERIDAN , A C OMPLETE D ICTIONARY OF THE E NGLISH L ANGUAGE (London, 2d ed. 1789) (same); 1 J OHN A SH , T HE N EW AND C OMPLETE D ICTIONARY OF THE E NGLISH L ANGUAGE (London, 2d ed. 1795) (defining a “felony” as a “capital crime, a very heinous offence”); W ILLIAM P ERRY , D T HE R OYAL S TANDARD E NGLISH D ICTIONARY (London, 5th ed. 1788) (defining a “felony” as a “capital or enormous crime”); B URN & B URN , supra , at 302 (explaining that “felony, as it is now become a technical term, signifies in a more restrained sense an offence of an high nature, yet it is not limited to capital offenses only, but still retains somewhat of this larger acceptance”); see also 1 N OAH W EBSTER , A C OMPENDIOUS D ICTIONARY OF THE E NGLISH L ANGUAGE 115 (New-Haven, Sidney’s Press 1806) (following the definition in Ash’s dictionary).
Accordingly, it was commonly understood that “death
was ‘the standard penalty for all serious crimes’ at the time
of the founding.”
Bucklew v. Precythe
,
*45 USA V . D UARTE 57 similarly observed that acts such as, inter alia , robbery, certain thefts, fraudulent bankruptcy, forgery of coin, and forgery of a marriage license were felonies that could warrant death and forfeiture. 4 B LACKSTONE , supra , at 6, 156, 162–65, 238–39, 246–47. Colonial laws in the decades directly preceding, or during, the Revolutionary War prescribed the death penalty for a variety of felonies, including certain instances of counterfeiting, fraud, theft, and perjury. See B ANNER , supra , at 7–8 (describing pre- Revolution laws in New Hampshire, Connecticut, Pennsylvania, New York, Virginia, Delaware, and South Carolina that imposed capital punishment for non-violent crimes such as counterfeiting, perjury, theft, embezzlement, and burning timber). [9] And the same is true of state laws at the time of the founding. [10]
*46
and, if it chose, to subject those convicted of such crimes to
the death penalty. Inflicting death, of course, is the most
severe exercise of state power against an individual, and
disarmament—even permanent disarmament—is a “lesser
restriction” than execution.
See Rahimi
, 602 U.S. at 699.
Because, at the time of the founding, legislatures had a
recognized power to define serious crimes as felonies, and
to attach the penalty of death and forfeiture of estate to them,
the category of convicted “felons” is one that then could
categorically be subjected to legal disabilities that equaled or
exceeded lifetime disarmament. These two historical
traditions (of legislative categorical disarmament and
legislative power to define felonies eligible for severe
imposing felon status and death for counterfeiting); A C OLLECTION OF
A LL S UCH A CTS OF THE G ENERAL A SSEMBLY OF V IRGINIA , OF A P UBLIC
OR P ERMANENT N ATURE , AS A RE N OW IN F ORCE 260–61 (Richmond,
Augustine Davis 1794) (1792 law imposing death and felon status for
certain instances of theft, forgery, and counterfeiting); 2 L AWS OF THE
S TATE OF N EW -Y ORK 41–42 (New-York, Thomas Greenleaf 1792)
(1788 law imposing “death as a felon” for certain instances of forgery
and counterfeiting);
id.
at 73–75 (1788 law imposing capital punishment
for certain thefts); 1 T HE P UBLIC A CTS OF THE G ENERAL A SSEMBLY OF
N ORTH -C AROLINA 242 (Newbern, James Iredell & Francois-Xavier
Martin eds., Martin & Ogden 1804) (1784 law stating that those
convicted of committing forgery, counterfeiting, or fraud with respect to
tobacco shipments “shall be adjudged a felon, and suffer as in cases of
felony”);
Commonwealth v. Hope
,
punishment), taken together , therefore provide a sufficient historical analogue to satisfy the “how” requirement of . And because the death penalty, like disarmament, is in part aimed at addressing the problem of potential future lawlessness by demonstrated lawbreakers, see 4 B LACKSTONE , supra , at 11–12 (explaining that among the aims of criminal punishment were to “depriv[e] the party injuring of the power to do future mischief” and to “deter[] others”); Joseph Story on Capital Punishment , 43 C AL L. R EV . 76, 80 (John C. Hogan ed. 1955) (1830 essay by Justice Story explaining that capital punishment is premised on “cutting [a convict] off from the power of doing further mischief” and “the deterring of others from committing like crimes”), the “why” requirement is satisfied as well.
For the foregoing reasons, the historical traditions *47 concerning legislative treatment of felons and concerning legislative categorical disarmament, taken together, provide a “relevantly similar” historical analogue that justifies, as [11] I therefore disagree with the majority’s suggestion that the two traditions, considered separately, provide alternative grounds for rejecting Duarte’s Second Amendment challenge here. Considered separately, neither is sufficient. As I have explained, positing a free- floating legislative power to categorically disarm any group deemed to be unreliable, see Opin. at 36–38 & n.19, seems at war with the original understanding of the Second Amendment. See supra at 48–49. And the greater-includes-the-lesser argument that disarmament is a lesser burden than execution is also inadequate, standing alone, to uphold felon disarmament. Stripping convicted felons of their First Amendment rights is also less severe a consequence than death, but no one could seriously contend that such a statute would be consistent with the First Amendment. The crucial difference is that, in the context of the Second Amendment (in contrast to the First Amendment), there was, at the time of the founding, a well-recognized (if limited) legislative power to strip specified categories of persons of their right to bear arms. 60
consistent with the Second Amendment,
legislation
permanently disarming the category of persons who are
convicted felons.
Rahimi
,
In my view, none of the contrary arguments presented by Duarte and others on this point is persuasive. In particular, the fact that capital punishment was in practice only “sparingly” applied in the colonies and that many felonies were not eligible for the death penalty, see Kanter v. Barr , 919 F.3d 437, 459 (7th Cir. 2019) (Barrett, J., dissenting) (citation omitted), does not require a different conclusion. As I have explained, the relevant question in assessing the scope of a historically based legislative power to disarm particular categories of persons is whether it was understood, at the time of the founding, that the legislature had the discretion to impose on a particular group, categorically, legal burdens that were equivalent to or more onerous than permanent disarmament. [12] That was clearly the case with *48 forfeiture and narrow the applicability of capital punishment. See 5 S T . G EORGE T UCKER , supra , at n.1. And writing in 1868, the year of the Fourteenth Amendment’s ratification, Francis Wharton explained that at common law, “it was held, that whenever judgment of life or member was affixed by statute, the offence to which it was attached became respect to the category of persons who committed serious crimes that the legislature chose to define as felonies, and the Second Amendment is therefore not violated if a legislature decides to impose permanent disarmament on persons who have previously been convicted of what it deems to be a sufficiently serious crime.
Likewise, it does not matter that, under current Eighth
Amendment doctrine, the vast majority of felonies are not
constitutionally eligible for the death penalty. In assessing
whether a legislature at the time of the founding had the
discretion to impose burdens that exceeded disarmament in
severity on a particular category of persons, what matters is
the scope of such power as then understood, and not 21st
century notions of what is consistent with “evolving
standards of decency.”
Kennedy v. Louisiana
,
felonious by implication, though the word felony was not used in the statute,” and that “[i]n this country, with a few exceptions, the common law classification has obtained; the principal felonies being received as they originally existed, and their number being increased as the exigencies of society prompted.” 1 F RANCIS W HARTON , A T REATISE ON THE C RIMINAL L AW OF THE U NITED S TATES § 2, at 2 (Philadelphia, Kay & Brother 6th ed. 1868). *49 USA V . D UARTE 62
III
For the foregoing reasons, I conclude that § 922(g)(1)’s lifetime ban on possession of a firearm or ammunition by a convicted felon does not violate the Second Amendment and that Duarte’s as-applied challenge fails. I therefore respectfully concur in the judgment.
VANDYKE, Circuit Judge, with whom IKUTA and R. NELSON, Circuit Judges, join as to Part I, concurring in the judgment in part and dissenting in part:
Steven Duarte was indicted 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 18 U.S.C. § 922(g)(1). Duarte was previously
convicted of five non-violent criminal offenses in California,
each of which carried a sentence of one year or more in
prison: vandalism, Cal. Penal Code § 594(a); felon in
possession of a firearm,
id.
§ 29800(a)(1); possession of a
controlled substance, Cal. Health & Safety Code § 11351.5;
and two convictions for evading a peace officer, Cal. Veh.
Code § 2800.2. The government conceded in pre-trial
proceedings below that “none of [Duarte’s] prior convictions
are violent or involve fraud.” Duarte did not challenge his
indictment on Second Amendment grounds, as such an
argument was foreclosed by our court’s precedent in
United
States v. Vongxay
,
After a jury trial, Duarte was convicted of violating
§ 922(g)(1). The Supreme Court then issued
New York State
Rifle & Pistol Ass’n v. Bruen
, 597 U.S. 1 (2022), which
represented a dramatic shift from our court’s approach to the
Second Amendment and upended our court’s precedent,
see
id.
at 15 (abrogating
Young v. Hawaii
, 992 F.3d 765, 773
(9th Cir. 2021) (en banc)).
Bruen
thus called into question
our court’s precedents holding
that § 922(g)(1)’s
felon-in-possession ban is constitutional in all applications.
See Vongxay
,
A three judge-panel of our court reversed the district court, concluding that our precedent in Vongxay was “clearly irreconcilable” with Bruen , that Duarte was a part of “the people” protected by the Second Amendment, and that the government had not proved that § 922(g)(1)’s categorical prohibition, as applied to a nonviolent felon like Duarte, “‘is part of the historical tradition that delimits the outer bounds of the’ Second Amendment right.” United States v. Duarte , 101 F.4th 657, 661–62 (9th Cir. 2024), reh’g en banc granted, opinion vacated , 108 F.4th 786 (9th Cir. 2024) (quoting Bruen , 597 U.S. at 19). Then a majority of our court voted to take this case en banc, vacating the panel opinion. See Duarte , 108 F.4th at 786; see also id. (VanDyke, J., disgrantle).
The majority of our en banc court now holds that under a de novo standard of review, applying § 922(g)(1) to Duarte does not violate the Second Amendment. In so holding, the majority makes a cavalcade of errors. First, the majority assumes that de novo review applies to Duarte’s claims. The court should have instead disposed of this case under plain error review. Second, the majority concludes that our court’s pre- precedent upholding § 922(g)(1) against Second Amendment challenges is not inconsistent with intervening Supreme Court authority. But given the paradigm change in Second Amendment jurisprudence that Bruen effected, the majority’s conclusion is incorrect. Third, the majority concludes that legislatures have unilateral discretion to disarm anyone by assigning the label “felon” to whatever conduct they desire. And fourth, the majority reaches the broad conclusion that legislatures can disarm entire classes of individuals, even absent a specific showing of individual dangerousness or propensity to violence.
I. Standard of Review
The majority needed to go no further than the standard of review to decide this case. Rather than “assum[ing] without deciding that de novo review applies,” the majority should have applied plain error review and affirmed Duarte’s conviction on that ground. De novo review does not apply here under Federal Rule of Criminal Procedure 12, as Duarte contends. Rather, Rule 52(b)’s plain error standard of *51 review applies, and we should have used this opportunity while sitting as an en banc court to correct our erroneous exceptions to that standard.
Duarte’s argument that de novo review should apply is
wrong. Rule 12(b) provides that certain defenses—
including certain defects in the indictment—must be raised
by motion before trial. Fed. R. Crim. P. 12(b)(3)(B). If a
defendant fails to timely make such a motion, then the
defense can later be considered only “for good cause.”
Id.
12(c)(3). And Rule 52(b) provides that on appeal a court
may only consider an issue that “was not brought to the
court’s attention” below if that issue represents “[a] plain
error that affects substantial rights.” We apply the familiar
four-part
Olano
test to determine whether an issue was
“plain error.”
United States v. Olano
,
Against this backdrop, Duarte contends “that de novo
review applies once a defendant-appellant shows Rule 12
good cause.” The text of Rule 12 and Supreme Court
precedent foreclose this argument. Rule 12 doesn’t address
appellate standards of review or “explicitly announce an
exception to plain-error review.”
Jones v. United States
, 527
U.S. 373, 388–89 (1999). So any argument that Rule 12 sets
aside plain error upon a showing of good cause relies on an
inference from silence. And on at least four occasions, the
Supreme Court has refused to find exceptions to plain error
based on inferences from silence.
See Johnson v. United
States
,
Arguing otherwise, Duarte cites
United States v.
Guerrero
,
Guerrero did not directly address the question posed to us here. In Guerrero , the court decided whether a defendant who fails to show good cause when required by Rule 12 can get any review at all. In answering that question, Guerrero said “no”: if a defendant has not shown good cause he can get no review at all. In that sense, Rule 12 “displaces” Rule 52(b)’s “plain error” standard. When a defendant fails to satisfy Rule 12’s requirement to raise a pre-trial defense—or fails to show “good cause”—then the court’s inquiry stops at the Rule 12 analysis, and the court never even turns to the Rule 52(b) analysis.
The question Duarte poses is different: whether a defendant who has shown good cause for not raising a required Rule 12 defense should obtain de novo or plain error review when raising the required Rule 12 defense for the first time on appeal. Guerrero did not directly address that. In that instance, plain error review remains “the default standard” for reviewing new claims on appeal that were not raised at any time below, id. at 897, and thus the appellate court must apply the plain error standard.
To put it another way, Rule 12’s good cause standard is
not an alternative to Rule 52(b)’s plain error standard.
Instead, the good cause standard is an additional
“antecedent” requirement to be applied in tandem with Rule
52(b)’s plain error standard.
United States v. McMillian
, 786
F.3d 630, 636 (7th Cir. 2015). So when a defendant wants
to raise a Rule 12(b)(3) defense for the first time
on appeal
,
as Duarte seeks to do here, he must show both good cause
and plain error. Fed. R. Crim. P. 12(c)(3), 52(b). This is
how other circuits have interpreted the interaction between
*53
the two rules.
See, e.g.
,
McMillian
,
The upshot is that applying Rule 12 doesn’t make it
easier for Duarte to raise his Second Amendment arguments
for the first time on appeal. It makes it harder. Rule 12 limits
Duarte’s ability to get even plain error review—if he can’t
show good cause, he’s not entitled to any review at all.
Guerrero
,
The government does not meaningfully dispute that
Duarte has good cause under Rule 12. Under our court’s
precedents, an intervening change in law satisfies Rule 12’s
good cause standard.
See United States v. Aguilera-Rios
,
769 F.3d 626, 629 (9th Cir. 2014). In
Aguilera-Rios
, our
court held that there was “good cause” to consider a
defendant’s argument that had not been raised prior to trial
pursuant to Rule 12(b)(3)(B) because the defendant “would
have had no reason to challenge” the indictment at the
district court as “this Court’s caselaw … foreclosed the
argument he now makes.”
Id.
at 630–31. Similarly here,
Duarte did not challenge his indictment because our
precedent in
Vongxay
foreclosed his argument that
§ 922(g)(1) was unconstitutional.
But because Duarte did not raise his Second Amendment argument at any point below—either in a Rule 12(b) motion or through another motion—under a plain reading of Rule 52(b) we must apply plain error review. See, e.g. , United States v. Mak , 683 F.3d 1126, 1133 (9th Cir. 2012) *54 (“[C]onstitutional issues not originally raised at trial are reviewed for plain error.”).
But that is not the end of the matter, because the Ninth
Circuit has already muddied this otherwise clear rule by
crafting atextual exceptions to the plain error standard. For
example, our court has created an exception to Rule 52(b)’s
plain error standard when a “new issue arises while the
appeal is pending because of a change in the law.”
United
States v. Valdivias-Soto
, 112 F.4th 713, 721 n.5 (9th Cir.
2024) (quoting
United States v. Grovo
,
This change-in-law exception would apply to Duarte’s
claim. Just as was a change in law satisfying Rule
12’s “good cause” requirement,
Bruen
was a sufficient
change to warrant application of our “change in the law”
exception to Rule 52(b), thus leading us to apply de novo
review.
See, e.g.
,
Grovo
,
But this exception should never have been created, and the government has asked us to take advantage of the en banc posture of this case to jettison it. Cf. United States v. Begay , 33 F.4th 1081, 1090 n.3 (9th Cir. 2022) (en banc) (“The government did not ask us to revisit our precedent allowing the application of de novo review” under Rule 52(b).). I would accept that invitation. The exception is divorced from the text of Rule 52(b) and contradicts the Supreme Court’s repeated rejection of exceptions to Rule 52(b). [1]
Rule 52(b) is mercifully short. It states: “[a] plain error
that affects substantial rights may be considered even though
*55
States v. Eckford
, 77 F.4th 1228, 1231 (9th Cir. 2023) (noting that
application of the categorical approach is a “purely legal question”);
McAdory
, 935 F.3d at 842 (“[W]hether McAdory’s prior convictions
qualify as predicate felonies under § 922(g)(1) is a purely legal
question.”). And “[t]he Government suffers no prejudice because of
[Duarte’s] failure to raise the issue to the district court—at the time,
under then-current law, the answer would have been obvious and in the
Government’s favor. On appeal, the effect of intervening law was the
subject of supplemental briefing and the main focus of oral argument so
the Government has had a full opportunity to present its views.”
McAdory
,
it was not brought to the court’s attention.” Fed. R. Crim. P.
52(b). “Except in unusual circumstances, that is all there is
to it: we must review new, unpreserved arguments for plain
error.”
United States v. Yijun Zhou
, 838 F.3d 1007, 1015
(9th Cir. 2016) (Graber, J., concurring). Our exception has
no grounding in Rule’s 52(b)’s plain text, the sine qua non
for interpreting the Federal Rules of Criminal Procedure.
See In re Pangang Grp. Co., LTD.
,
A quick look at how this exception came about shows
that it is not grounded in the text of Rule 52(b). The Ninth
Circuit’s exception materialized through an errant line in
United States v. Whitten
, where our court stated that “where
a new theory or issue arises while an appeal is pending
because of a change in the law,” our court will review that
issue in the first instance. 706 F.2d 1000, 1012 (9th Cir.
1983) (first citing
Hormel v. Helvering
,
In sharp contrast to what our court did in
Whitten
, the
Supreme Court has repeatedly rebuffed litigants’ and lower
courts’ efforts to create such exceptions.
See, e.g.
,
United
States v. Young
, 470 U.S. 1, 15 (1985). In
Johnson
, the
Court explained that courts have “no authority to make”
exceptions to Rule 52(b) “out of whole cloth.” 520 U.S. at
466;
see also Puckett v. United States
,
Our change-in-law exception also makes us an outlier
among the circuits. Other circuits have made clear they
“review for plain error even if the objection would have
lacked merit at the time of trial, before an intervening change
in the law.”
United States v. Maez
,
There was no plain error by the district court. Given the
split among the circuit courts over the constitutionality of
§ 922(g)(1) as applied to felons convicted of non-violent
offenses, and our pre-
Bruen
precedent upholding the
constitutionality of the statute, I cannot say that the district
court’s error was “clear” and “obvious.”
Olano
, 507 U.S. at
731;
Bain
,
Dorsey
,
II. Merits of the Second Amendment Challenge
Although the majority could resolve this case under plain
error review, it declines to do so. Instead, the majority
addresses the merits of Duarte’s Second Amendment
challenge under de novo review, resolving conclusively for
our circuit that § 922(g)(1) is constitutional in all of its
applications. In doing so, the majority deepens a circuit
split, intentionally taking the broadest possible path to
uphold § 922(g)(1).
[3]
Because the majority refuses to
*59
“application of § 922(g)(1) to nonviolent offenders”), and
United States
v. Dubois
,
A. The Second Amendment Historical Analysis
Before turning to the merits of Duarte’s Second
Amendment challenge, I provide a brief description of the
historical analysis the Supreme Court has directed us to
follow when evaluating the scope of the individual right to
“keep and bear” firearms. U.S. Const. amend. II.
Bruen
clarified “that the Second Amendment’s text, history, and
tradition are the ‘[o]nly’ avenues to justify a firearm
regulation.”
United States v. Perez-Garcia
,
It is the government’s burden to show that a challenged
regulation is consistent with our historical traditions, and it
must do so by showing that the “challenged regulation is
consistent with the principles that underpin our regulatory
tradition.”
Id.
at 692 (citing
Bruen
,
With that background in place, I turn to responding to the
majority’s analysis of Duarte’s Second Amendment claims.
[4]
*61
as an en banc court, we are not bound by our prior circuit
precedent, nor are three-judge panels bound by our circuit
precedent when the holding or reasoning of an intervening
Supreme Court or en banc case is “clearly irreconcilable”
with our prior decision.
Miller v. Gammie
,
The Second Amendment regime courts are now supposed to operate under is very different than the law we applied when our court upheld § 922(g)(1) in Vongxay . Bruen explicitly rejected the analytical framework that our court, and many others, had applied when addressing Second Amendment challenges, see 597 U.S. at 19 (rejecting our court’s former “two-step approach” as “one step too many,” and rejecting “applying means-end scrutiny in the Second Amendment context”).
Our old test bears no relationship to
Bruen
’s test, which
looks for “consisten[cy] with the principles that underpin our
regulatory tradition,”
Rahimi
,
Vongxay
, and the cases it relied upon, did not follow
anything resembling
Bruen
’s text-history-and-tradition
“mode of analysis.”
Miller
, 335 F.3d at 900 (“[L]ower
courts a[re] bound not only by the holdings of higher courts’
decisions but also by their ‘mode of analysis.’” (quoting
Antonin Scalia,
The Rule of Law as a Law of Rules
, 56 U.
Chi. L. Rev. 1175, 1177 (1989))). Rather,
Vongxay
relied on
a handful of prior circuit court decisions, then turned to
Heller
’s passing footnote referring to “longstanding” felon
firearm bans as “presumptively lawful.”
See Phillips
, 827
F.3d at 1174 (“[W]e held in
United States v. Vongxay
, that
‘felons are categorically different from the individuals who
have a fundamental right to bear arms,’” “based on th[e]
language” in
Heller
that “‘longstanding prohibitions on the
possession of firearms by felons’ … were ‘presumptively
lawful’” (citations omitted)). In short,
Vongxay
wholly
omitted ’s two-step methodology, and thus its
*62
reasoning is “clearly irreconcilable” with
Bruen
’s “mode of
analysis” for analyzing Second Amendment challenges.
Miller
,
To be sure, our sister circuits are split on the question of
whether
Bruen
abrogated their pre-
Bruen
precedent
regarding § 922(g)(1).
Compare Dubois
,
Our en banc court here should have made clear that our pre- Bruen decisions applying a mode of analysis other than Bruen ’s text-history-and-tradition approach are no longer binding upon future panels of our court. Instead, the majority further bakes in our outdated and erroneous precedent.
C. Reliance on Heller ’s “Presumptively Lawful”
Footnote
The majority’s continued reliance on Vongxay ’s analytical approach is emblematic of another problem with Second Amendment jurisprudence in this Circuit: using “cherrypicked language” that is “mis- and over-applied from the Court’s prior precedents” to uphold any firearms regulation that comes before it. Duarte , 108 F.4th at 788 (VanDyke, J., disgrantle). “[J]udges who are more *63 must instead determine whether Bruen indisputably and pellucidly abrogated [our precedent].” (citations omitted)).
interested in sidestepping than following the Court’s Second Amendment precedent will latch onto phrases like ‘presumptively lawful’ … while conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Id. That is exactly what Vongxay did, and what the majority here continues to do.
The majority extracts from Heller ’s footnoted statement that felon-in-possession laws are “presumptively lawful” the apparent per se rule that all felon-in-possession laws are constitutional, warranting “the categorical application of § 922(g)(1) to felons.” “[A]pplying Heller ’s dicta uncritically,” as our court continues to do, is “at odds with Heller itself, which stated courts would need to ‘expound upon the historical justifications’ for firearm-possession restrictions when the need arose.” Williams , 113 F.4th at 648 (quoting Heller , 554 U.S. at 635). Nevertheless, the majority doubles-down on our pre- precedent “to foreclose Second Amendment challenges to § 922(g)(1), regardless of whether an underlying felony is violent or not.” But “[m]aking the leap from presumptively constitutional to always constitutional … is too much for that overused line to bear, no matter how you read it.” United States v. Jackson , 121 F.4th 656, 658 (8th Cir. 2024) (Stras, J., dissental).
Heller
speaks only in terms of a presumption. A
presumption must be defeasible.
United States v. Williams
,
616 F.3d 685, 692 (7th Cir. 2010) (“‘[P]resumptively
lawful’ ... by implication[] means that there must exist the
possibility that the ban could be unconstitutional in the face
of an as-applied challenge.”). So the Court’s statement that
felon-in-possession laws are only
presumptively
lawful
implies that felon-in-possession laws must be unlawful in at
*64
USA V . D UARTE 19
least
some
instances.
See Jackson
,
Stretching the language of Heller ’s “presumption” beyond what it can bear is par for the course on our court. The majority’s holding continues a trend in our court’s cases relying on Heller ’s “presumptively lawful” footnote to sidestep the otherwise governing standard. 554 U.S . at 627 & n.26. You might call it our court’s Second Amendment fiat-by-footnote. In Heller , the court identified at least four types of regulations that are presumptively lawful:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on [1] the possession of firearms by felons and [2] the mentally ill, or [3] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or [4] laws imposing conditions and qualifications on the commercial sale of arms.
Id.
at 626–27. Our court has taken each of these
“presumptively lawful” regulations outside of the “heavy
burden” that
Bruen
imposes on the government to justify its
regulations.
United States v. Connelly
,
Consider “sensitive places” prohibitions.
Heller
, 554
U.S. at 626;
see generally
David B. Kopel & Joseph G.S.
*65
Greenlee,
The “Sensitive Places” Doctrine: Locational
Limits on the Right to Bear Arms
, 13 Charleston L. Rev. 203
(2018). Our court recently upheld certain “sensitive places”
prohibitions that Hawaii and California enacted.
See
Wolford v. Lopez
,
Or look at the way that our court has treated laws that
impose “conditions and qualifications on the commercial
sale of arms,” another of
Heller
’s “presumptively lawful”
categories. 554 U.S. at 626–27 & n.26. In
B & L
Productions, Inc. v. Newsom
, our court held that commercial
restrictions presumptively fall outside the plain text of the
Second Amendment altogether.
And our court upheld § 922(g)(4)’s prohibition on the
possession of firearms by those who are mentally ill in
Mai
v. United States
,
Finally, the majority here relies on Heller ’s “presumptively lawful” language once more to adopt a per se rule upholding felon-in-possession bans. That is just as wrong as each of our court’s earlier decisions relying on Heller ’s “presumption” footnote to sidestep Bruen ’s text-history-and-tradition test.
The Supreme Court has provided one test for assessing
the constitutionality of regulations on the right to bear arms.
“[T]he Second Amendment’s text, history, and tradition are
the ‘[o]nly’ avenues to justify a firearm regulation.”
Perez-Garcia
, 96 F.4th at 1175 (alteration in original)
(quoting
Bruen
, 597 U.S. at 17)). Our court makes a
“category error in its analysis” when it concludes that such
regulations are not “subject to [the full scope of] ’s test.”
Reese v. A.T.F.
,
The majority’s approach here confirms once more that
Second Amendment jurisprudence in our circuit is not
principally one of reason or logic. It does not actually rely
on general historical “principles,” distilled from history and
tradition, or the holdings and reasoning of Supreme Court
precedent. Rather, ours is a jurisprudence built on
throwaway lines and footnotes.
See United States v.
Perez-Garcia
, 115 F.4th 1002, 1008 (9th Cir. 2024)
(VanDyke, J., dissental);
Duarte
, 108 F.4th at 788
(VanDyke, J., disgrantle). We disregard holdings to
*67
USA V . D UARTE 23
embrace dictum.
And we set aside a coherent
methodological approach for ad hoc exceptions justifying
our court majority’s policy preferences. The Supreme Court
has demanded better of us—as does the Constitution—for
“the right to keep and bear arms is among the ‘fundamental
rights necessary to our system of ordered liberty.’”
Rahimi
,
D. The Greater Includes the Lesser Rationale The majority purports to derive from the historical record the “regulatory principle” that “legislatures may disarm those who have committed the most serious crimes.” In doing so, the majority endorses the government’s argument that because, in 1791, “the greater punishment of death and estate forfeiture was permissible to punish felons, [the] lesser restriction of permanent disarmament is also permissible.” The majority’s argument breaks down in at least three respects. First, the three historical sources the majority cites are insufficient to show an “unbroken understanding that the legislature could permanently disarm those who committed the most serious crimes consistent with the Second Amendment.” Second, capital punishment and estate forfeiture were imposed as punishment for only a few felonies. The death penalty was not, as the majority contends, “‘the standard penalty for all serious crimes’ at the time of the founding.” And third, the majority’s argument presupposes that the felonies at the founding were equivalent to felonies today. But that’s obviously false; many felonies today bear little resemblance to felonies at the founding.
1. Historical Disarmaments
The majority’s evidence of the “unbroken understanding
that the legislature could permanently disarm those who
committed the most serious crimes” is just one Colonial-era
English enactment and two
draft
proposals from the
Founding-era and succeeding decades. The paucity of that
historical record speaks for itself.
Bruen
doubted that three
Colonial-era laws were enough to show a historical tradition.
First, the majority points to the 1689 English Bill of Rights, characterized as the “predecessor to our Second Amendment.” This Bill of Rights provided “[t]hat the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by law.” Bill of Rights 1688, 1 W. & M. Sess. 2 c. 2, sch. 1. (Eng.); see also 6 William Searle Holdsworth, A History of English Law 241 (1924) (explaining that Parliament added this provision to the Bill of Rights in response to James II’s refusal to allow Protestants the right to carry arms). But notwithstanding the ostensible limitation of this right “as allowed by law,” “[t]here is no evidence that any Protestants were excluded from the 1689 arms right for being insufficiently loyal or law-abiding.” See Joseph G.S. Greenlee, Disarming the Dangerous: The American Tradition of Firearm Prohibitions , 16 Drexel L. Rev. 1, 23 (2024) [hereinafter Greenlee, Disarming the Dangerous ]; see also 5 William Blackstone, Commentaries 57 (St. George Tucker ed. 1803) [hereinafter Blackstone, Commentaries ] (“[T]hese laws are seldom exerted to their utmost rigour” and “if they were, it would be very difficult to excuse them.”). And there were multiple “statements made during debates in Parliament that suggest all Protestants were protected by the right, regardless of their condition.” Greenlee, Disarming the Dangerous at 23; see also 5 Cobbett’s Parliamentary History of England 183 (London, T.C. Hansard 1809) (“If you find not a way to convict them [for being Catholic], you cannot disarm them.” (statement of W. Wogan)); 9 Debates of the House of Commons, From the Year 1667 To the Year 1694 , at 170 *69 (London, D. Henry, R. Cave & J. Emonson 1763) (“[B]eing not convicted [for being Catholic] they will say they are not concerned ... and not one man will ... deliver their arms.” (statement of Speaker H. Powle)).
The founders also rejected the limitations on the right to
bear arms set out in the 1689 English Bill of Rights.
Greenlee,
Disarming the Dangerous
at 25;
see also Bridges
v. California
,
limitations on the right to bear arms in the English Bill of Rights, including that it only protected the right of Protestants. See James Madison, Notes for speech in Congress supporting Amendments (June 8, 1789) (reprinted in 12 The Papers of James Madison 193–94 (Charles F. Hobson et al. eds., 1979)) Thomas Cooley explained how the Second Amendment “was adopted with some modification and enlargement from the English Bill of Rights of 1688.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 270 (Boston, Little, Brown & Co. 1880). And William Rawle’s “influential treatise” on the Constitution, Heller , 554 U.S. at 607, contrasted the “cautiously described” English Bill of Rights—as it was “secured to protestant subjects only” and only protected “bearing arms for their defence, ‘suitable to their conditions, and as allowed by law’”—with the more expansive American right, William Rawle, A View of The Constitution of The United States of America 126 (Philadelphia, Philip H. Nicklin ed. 1829). In sum, the 1689 English Bill of Rights does not support the majority’s purported principle because it was not actually used to disarm those who had committed crimes and the founders explicitly departed from its limitations on the right to bear arms found in our Bill of Rights. See also , 597 U.S. at 35 (“[C]ourts must be careful when assessing evidence concerning English common-law rights.... English common-law practices ... cannot be indiscriminately attributed to the Framers of our own Constitution.”).
Second,
the majority emphasizes
that “[i]n
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.’” But that proposal was just that: a
proposal. It went nowhere. “[N]one of the relevant limiting
language made its way into the Second Amendment” from
this convention, nor from any of the other state ratifying
conventions that the government points to.
Kanter
, 919 F.3d
at 455 (Barrett, J., dissenting);
see also
1 Jonathan Elliot,
The
Debates in The Several State Conventions on The Adoption
of The Federal Constitution
326 (Washington, Jonathan
Elliot 1836) (New Hampshire proposal); 2 Bernard
Schwartz,
The Bill of Rights: A Documentary History
675,
681 (1971) (Massachusetts proposal). The Pennsylvania
minority proposal failed to even obtain a majority of its own
convention.
Kanter
,
Third and finally, the majority cites a draft criminal code
that Edward Livingston proposed for the state of Louisiana.
As the majority describes it, this code would have abolished
the death penalty for certain crimes, replacing it instead with
“permanent forfeiture of certain rights, including the ‘right
of bearing arms.’” It bears repeating that this too was a
draft
criminal code—as with Pennsylvania’s convention proposal,
the code was never adopted. Given the minimal probative
value of such a draft code, it is no surprise that the
government never raised it in its briefing to this court.
Instead, the majority errs by bringing in historical evidence
of its own volition.
See Baird v. Bonta
,
In sum, the majority fails to point to any historical evidence that actually supports its supposed “unbroken understanding” of permanently disarming felons. The government and the majority thus fail to situate § 922(g)(1) in a “historical tradition of firearm regulation.” , 597 U.S. at 17. It is perhaps unsurprising, then, that the majority attempts to compensate by pointing to a different analog— the purported practice of consistently executing felons at the founding.
2. The Majority’s Cold, Dead Fingers Rationale The majority’s death-equals-disarmament argument is no more persuasive than its historical evidence for disarming felons. The majority contends that dead people can’t keep or bear arms, and “death was ‘the standard penalty for all serious crimes’ at the time of the founding.’” But the historical support for that statement is “shaky.” Kanter , 919 F.3d at 459 (Barrett, J., dissenting). During the colonial era, through the founding, and in the succeeding years, the death penalty was steadily divorced from serious crimes. “[E]ven before the Founding, the link between felonies and capital punishment was frayed.” Folajtar v. Attorney General , 980 F.3d 897, 920 (3d Cir. 2020) (Bibas, J., dissenting). In Blackstone’s telling, at common law not all felonies faced capital punishment; it was only certain felonies “according to the degree of guilt,” “to which capital *72 or other punishment may be superadded.” 5 Blackstone, Commentaries , 95; see also id. at 97 (“Felony may be without inflicting capital punishment … and it is possible that capital punishments may be inflicted, and yet the offence be no felony ….”). The American colonies further limited the scope of crimes eligible for the death penalty relative to the English Common Law. Folajtar , 980 F.3d at 920 (Bibas, J., dissenting).
And even for those crimes that were capital, “[t]he colonies carried out the death penalty ‘pretty sparingly,’ and ‘[p]roperty crimes were, on the whole, not capital.’” Id. (quoting Lawrence M. Friedman, Crime and Punishment in American History 42 (1993)). “Colonial Pennsylvania, for instance, on average sentenced fewer than two people per year to die and executed only one of those two per year.” Id. (citation omitted). And in 1682, Pennsylvania “limited imposition of the death penalty to ‘willful murder.’” June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail , 34 Syracuse L. Rev. 517, 531 (1983) [hereinafter Carbone, Principles in Bail ] (quoting 2 Charles P. Keith, Chronicles of Pennsylvania 1688–1748 , at 586 (1917)). In short, “[a]t the common law, few felonies, indeed, were punished with death.” James Wilson, Lectures on Law , in 2 Collected Works of James Wilson 242 (Kermit L. Hall & Mark David Hall eds., 2007) [hereinafter, Wilson, Lectures ]; see also 1 Wilson, Lectures on Law 343 (“How few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England!”).
The relationship between the death penalty and felonies continued to diverge at the founding. “[M]any states were moving away from making felonies … punishable by death in America.” Range , 124 F.4th at 227. Founder James Wilson explained that while, in theory, “the idea of [a] felony [wa]s very generally ... connected with capital punishment,” in practice, this “inference[] ... [wa]s by no means entitled the merit of critical accuracy.” 2 Wilson, Lectures 242. And James Madison explained in The Federalist that the term “felony is a term of loose signification, even in the common law of England.” The Federalist No. 42 , at 234 (Clinton Rossiter ed., 1961) (James Madison). What defined a felony “is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws.” Id. As a result, there were “many felonies, not one punished with forfeiture of estate, *73 and but a very few with death.” [6] 6 Nathan Dane, A General *74 1771) (describing punishments for various felonies as ranging from death and estate forfeiture to imprisonment and hard labor). five states had abolished it for all crimes besides murder.” Mugambi Jouet, Death Penalty Abolitionism from the Enlightenment to Modernity , 71 Am. J. Comp. L. 46, 69 (2023). “Within two decades of gaining independence from England, the states of the Union had replaced execution with incarceration as the punishment for all but a few crimes.” Will Tress, Unintended Collateral Consequences: Defining Felony in the Early American Republic , 57 Clev. St. L. Rev. 461, 468 (2009). Michigan abolished the death penalty for all crimes but treason in 1846, and Rhode Island and Wisconsin each abolished the death penalty entirely between 1852 and 1853. See John D. Bessler, The Death Penalty in Decline: From Colonial America to the Present , 50 Crim. L. Bull. 245, 258 (2014); Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 28 (1986). Indeed, Edward Livingston’s proposed criminal code for Louisiana, on which the majority stakes much of its historical argument, was part of this movement to eliminate the death penalty as part of the criminal law. So the historical evidence belies the majority’s claim that “death was ‘the standard penalty for all serious crimes’ at the time of the founding.”
Absent the relationship at the founding between the
historical punishments for felonies and § 922(g)(1), the
majority’s rationale crumbles. To get around the absence of
historical support, the majority contends that “history need
not show that
every
felony was punished with death and
estate forfeiture.... Instead, the exposure to capital
punishment and estate forfeiture is sufficient to demonstrate
that the founding generation would view § 922(g)(1)’s
permanent disarmament as consistent with the Second
Amendment.” But “[t]he Founding-era practice of
punishing some nonviolent crimes with death does not
*75
USA V . D UARTE 33
suggest that the
particular
(and distinct) punishment at issue
here—de facto lifetime disarmament for all felonies and
felony-equivalent misdemeanors—is rooted in our Nation’s
history and tradition.”
Range
, 124 F.4th at 231. So “the
historical evidence belies the [majority’s] necessary link in
its analysis.”
Perez-Garcia
,
Moreover, even putting aside the ahistorical foundation
for the majority’s attempted analogy, its death-equals-
disarmament equivalence still fails. “The obvious point that
the dead enjoy no rights does not tell us what the
founding-era generation would have understood about the
rights of felons who lived, discharged their sentences, and
returned to society.”
Id.
at 462 (Barrett, J., dissenting). “No
one suggests that [someone with a felony conviction] has no
right to a jury trial or [to] be free from unreasonable searches
and seizures.”
Williams
,
How can the “greater include the lesser” rationale work when the claimed “greater” (capital punishment of all, or even most, felonies) was in fact a historical fiction? It can’t. And what can the founders’ greater willingness to apply capital punishment tell us about whether they would disarm those not sentenced to death? Nothing. But those aren’t the only flaws with the majority’s historical analysis. The majority is also wrong to uncritically equate modern-day felonies with those at the founding, the point I turn to next. 3. The Difference Between Modern and Founding-era
Felonies
The majority cannot dispute that “today’s felonies do not correspond with felonies at the founding that were eligible for death and estate forfeiture.” And the majority rightly *76 concedes that “[t]he felony category then was a good deal narrower than now.” “Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies.” Tennessee v. Garner , 471 U.S. 1, 14 (1985). For example, the crime of vandalism—one of Duarte’s prior convictions—would have been a misdemeanor at the founding. United States v. Collins , 854 F.3d 1324, 1333 (11th Cir. 2017) (describing “malicious mischief” as “the closest common-law offense for damaging another’s property”); see, e.g. , Act of 1772, in An Abridgment of the Laws of Pennsylvania 357 (Philadelphia, Farrand, Hopkins, Santzinger & Co. 1811) (setting forth the penalty for “malicious mischief” as a payment of “the sum of twenty-five pounds”). And “possessing a firearm as a felon”—another of Duarte’s prior convictions—“was not considered a crime until 1938 at the earliest.” Diaz , 116 F.4th at 468 (citing Federal Firearms Act, ch. 850, §§ 1(6), 2(f), 52 Stat. 1250, 1250–51 (1938)). As a result of this expansion of what constitutes a felony, § 922(g)(1) now covers an “immense and diverse category” of criminal offenses—“everything from ... mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses.” Kanter , 919 F.3d at 466 (Barrett, J., dissenting).
The majority acknowledges this glaring problem but
then bulldozes right over it. It concludes that legislatures
have “discretion [] consistent with our nation’s history.… to
identify conduct that they deem the most serious and to
punish perpetrators with severe deprivations of liberty.” The
majority doesn’t point to any limits on that discretion. It is
true that “judges [normally] have little authority to question
a legislature’s decision to criminalize or punish certain
conduct; a felony sentence is ‘purely a matter of legislative
prerogative.’”
Williams
, 113 F.4th at 660–61 (quoting
Rummel v. Estelle
,
Under the majority’s approach, the Second Amendment
is a paper tiger with no fixed boundaries. “Congress may
decide to change [the definition of what a felony is] in the
future.”
Diaz
,
Analogizing properly, the government has not shown
that § 922(g)(1)’s permanent firearm ban can be
constitutionally applied to Duarte. As already noted,
Duarte’s prior vandalism and
felon-in-possession
convictions were not felonies at the founding. And there are
*79
based upon drug offenses.
Connelly
,
E. Designating Categories of Dangerous Persons As if the blanket discretion the majority bestows upon legislatures to disarm anyone they label as a felon was not concerning enough, the majority also identifies a second— and even broader—“regulatory principle” supporting § 922(g)(1)’s constitutionality: “legislatures may categorically disarm those they deem dangerous, without an individualized determination of dangerousness.”
There is no such principle grounded in our nation’s
historical tradition. The historical analogues on which the
majority and the government rely satisfy neither the “how”
nor the “why” of
Bruen
’s test. The majority relies first on
certain Founding-era laws that disarmed British Loyalists,
Catholics, Native Americans, and Blacks. The majority then
relies upon a series of laws that effectuated temporary
disarmaments—of minors, those of unsound mind, the
actively intoxicated, and “tramps.” But the former set of
laws were all united by one historical principle: they
“permitted disarmament if one was a member of a group that
was expected to take up arms against the government.”
Perez-Garcia
, 115 F.4th at 1031 (VanDyke, J., dissental).
And the second set of laws effectuated mere temporary
dispossessions of firearms—not permanent bans like
§ 922(g)(1). Because the historical analogues fail to match
either the “how” or the “why” of ’s test, they are not
“relevantly similar” to § 922(g)(1).
Rahimi
,
1. Categorical Disarmament Laws
The first set of laws the majority relies upon are those it
characterizes as “regulations that disarmed those whom the
legislature deemed dangerous on a categorical basis.” These
colonial- and Founding-era laws disarmed or otherwise
limited the ability to own firearms by British Loyalists,
*80
Catholics, Native Americans, Blacks, and slaves. But the
majority is wrong in its historical analysis. The laws did
disarm groups that were deemed to be “dangerous” in the
sense that they were “judged to be a threat to the public
safety.”
Kanter
, 919 F.3d at 458 (Barrett, J., dissenting).
But this “history and tradition of disarming ‘dangerous’
persons does not include non-violent [felons like Duarte].
Indeed, not one piece of historical evidence suggests that, at
the time they ratified the Second Amendment, the Founders
authorized Congress
to disarm
anyone
it deemed
dangerous.”
Connelly
,
In
Bruen
’s parlance,
these sets of categorical
disarmament laws are not analogues because they were
motivated by a different “why.” Their motivation was “one
particular type of perceived danger: that the group would
take up arms against the government during war or in
revolt.”
Perez-Garcia
, 115 F.4th at 1012 (VanDyke, J.,
dissental);
see also Range
, 124 F.4th at 245 (Matey, J.,
concurring) (“Laws imposing class wide disarmament were
enacted during times of war or civil strife where separate
sovereigns competed for loyalty.”);
Jackson
,
By contrast, § 922(g)(1)’s broader prohibition serves
to—in the majority’s telling, and in Congress’s judgment—
prevent the general danger of gun violence and misuse of
firearms.
See Kanter
, 919 F.3d at 448 (describing the
government’s interest in § 922(g)(1) “as preventing gun
violence”);
id.
at 451 (Barrett, J., dissenting) (same).
“Section 922(g)(1) … takes aim at ‘gun violence’ generally,
which is a ‘problem that has persisted in this country since
the 18th century.’ And § 922(g)(1) ‘confront[s] that
problem’ with ‘a flat ban on the possession of guns.’”
Duarte
, 101 F.4th at 677 (alterations omitted) (quoting
Bruen
, 597 U.S. at 26, 27). Because these laws did not
address a comparable problem, they are not “relevantly
similar.” ,
Given the extent to which the government has relied upon these alleged categorical disarmament laws, a further explanation of each of the four categories is in order. During the Revolutionary War, former colonies enacted laws to disarm the Loyalists and others who did not take an oath to the union. See C. Kevin Marshall, Why Can’t Martha *81 Stewart Have a Gun? , 32 Harv. J.L. & Pub. Pol’y 695, 711 (2009) [hereinafter Marshall, Martha Stewart ]. The Continental Congress recommended that legislatures “disarm 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.’” Greenlee, Historical Justification at 264 (quoting 4 Journals of the Continental Congress, 1774– 1789 , at 205 (Worthington Chauncey Ford ed. 1906)). At least six states enacted such laws, disarming those who refused to “renounc[e] all allegiance to the now-foreign sovereign George III in addition to swearing allegiance to one’s State.” [10] Marshall, Martha Stewart at 724–25.
These Loyalist laws were temporary measures—both in the timing for their enactments and in the extent to which *82 USA V . D UARTE 42 they disarmed individuals. [11] They were “merely temporary,” 2 Blackstone, Commentaries 368 n.2, as they were enacted in the midst of the war, and did not “survive[] through the Founding in anything like their original form,” Marshall, Martha Stewart at 726. [12] They were also temporary in the sense that individuals could regain their right to bear arms upon swearing an oath of allegiance to the Union or disavowing the Crown. See, e.g. , Act of Dec. 1775, in 15 The Public Records of the Colony of Connecticut , supra , at 193 (stating that individuals who were “inimical” to the States would be disarmed only “until they shall satisfy” the authorities that they “are friendly to this and the other United Colonies”); see also June 13, 1777, Journal of the Council of Safety, in 1 The Public Records of the State of Connecticut 327–29 (Hartford, Cask, Lockwood & Brainard 1894) (releasing “John Wilcocks and James Ward,” and “George Folliot,” from custody after each took an oath of loyalty).
Given the temporary nature of these laws disarming
Loyalists, they fail both the “why” and “how” of
Bruen
’s
second step. The motivation for these regulations (wartime
*83
The colonial laws disarming Catholics fare no better
under
Bruen
’s test. The government points to only three
such colonial laws.
[13]
But again, it is “doubt[ful] that
three
colonial regulations” prove that disarming Catholics as a
class ever became a “well-established” national tradition.
See Bruen
,
[15] See also, e.g. , 1675 Act for the Safeguard and Defence of the Country Against the Indians, in 2 Va. Statutes at Large , supra , at 326–27, 336 (condemning “the sundry mur[d]ers, rapines and many depredations lately committed and done by Indians on the inhabitants of this country,” too fail to serve as a distinctly similar historical analogue, as they had a distinct purpose (the “why”)—not arming the enemy. The laws also imposed a different type of burden (the “how”). They did not ban Native Americans from possessing firearms but simply prohibited colonists from selling them arms. Greenlee, Disarming the Dangerous at 29.
Finally, colonial laws disarming slaves and Blacks reflected similar concerns. Just as the colonists feared the “danger of Indian attack[s],” they felt the “equivalent fear” of “indentured servants and slaves as a class.” Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794 , 16 L. & Hist. Rev. 567, 581 (1998). The colonies justified disarming Blacks based on the threat of violence they posed as a collective group. [16] directing that “a war[] be declared ... against all such Indians,” and ordering 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”). See, e.g. , Act of 1752, in 2 Va. Statutes at Large 481–82 (“Whereas
the frequent meeting of considerable numbers of negroe slaves ... is
judged of dangerous consequence ... it shall not be lawful[] for
any negroe or other slave to carry or arm[] himself[] with any club,
staff[], gun[] ... or any other weapon.”); Act of 1770,
in A Codification
of the Statute Law of Georgia
813 (Augusta, Charles E. Greville 1848)
(“[A]s it is absolutely necessary to the safety of this province[] ... to
restrain the wandering and meeting of ... slaves ... it shall be lawful for
any person ... to apprehend any ... slave ... found out of
the
plantation ... [and] if he ... be armed ... to disarm [him].”); Act of 1740,
in
7
Statutes at Large of South Carolina
410 (Columbia, A.S. Johnston
1840) (same);
see also
1790 Act of N.C., in
A Manual of the Laws of
North-Carolina
172 (Raleigh, J. Gales 1814) (“When any number
*85
of negroes, or other slaves, or free people of color, shall collect together
See Heller
,
1664 to the Revolution 687 (Albany, James B. Lyon 1894) (making it unlawful “for any Slave or Slaves to have or use any gun Pistoll sword Club or any other Kind of Weapon whatsoever” unless in the presence of their master); Act for the Trial of Negroes, in 1 Laws of the State of Delaware 104 (Newcastle, Samuel & John Adams 1797) (regulating the possession of weapons by “any Negro or Mulatto slave”); Act of 1704 Relating to Servants and Slaves, in Proceedings and Acts of the General Assembly of Maryland, September, 1704–April, 1706 , at 261 (Browne ed. 1906) (“[N]o Negro or other Slave within this Province shall be permitted to carry any Gunn or any other Offensive Weapon ....”); Acts of Assembly, Passed in the Province of New York, From 1691, to 1718 , at 144 (London, John Baskett 1719) (“[I]t shall not be Lawful for any Negro, Indian, or Mulatto Slave, to have or use any Gun or Pistol, but in his Master’s ... Presence ....”); Act of 1770, in A Codification of the Statute Law of Georgia , supra , at 812 (“It shall not be lawful for any slave, unless in the presence of some white person, to carry and make use of firearms, or any offensive weapon whatsoever ….”); Act of 1740, in 7 Statutes at Large of South Carolina , supra , at 404 (same); Act of 1755, in 18 The Colonial Records of the State of Georgia 117–18 (Candler ed. 1910) (“[I]t shall not be Lawfull for any Slave ... to Carry and make use of Fire Arms” except with a ticket that must be renewed each month). *86 USA V . D UARTE 47
Refining the Dangerousness Standard in Felon Disarmament , 108 Minn. L. Rev. Headnotes 315, 319–20 (2024) [hereinafter, McWilliam, Refining the Dangerous Standard ].
In sum, this history reveals that even while there was a
tradition of disarming groups deemed to be “dangerous,”
Kanter
,
It should be clear enough that § 922(g)(1) does not fit
within that tradition. The burdens and justifications
(
Bruen
’s “how” and “why”) for laws disarming disfavored
groups at the founding are not “relevantly similar” to
§ 922(g)(1)’s blanket ban on non-violent felons possessing
firearms. , 597 U.S. at 29. While § 922(g)(1) was
“originally intended to keep firearms out of the hands of
violent persons,” Greenlee,
Historical Justification
at 274,
the law now “encompasses those who have committed
any
nonviolent felony or qualifying state-law misdemeanor”—
an “immense and diverse category.”
Kanter
,
The majority thus fails to show support for its proposed “regulatory principle” from the 17th- and 18th-century categorical disarmament laws it addresses. As we’ll see, its second set of 19th-century laws fare no better.
2. Temporary Disarmaments The majority points to four sets of laws that it describes as “categorical restrictions on the possession of firearms by *87 certain groups of people.” These laws restricted the ability to possess firearms by minors, the unsound of mind, the intoxicated, and “tramps.” At the outset, given the absence of such regulations in the Founding-era, the majority only cites law from the Reconstruction-era (or later). This approach “inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction)” then “work[ing] backward to assert that these laws are consistent with founding-era analogues.” Reese , 127 F.4th at 596. But none of these laws is a “relevantly similar” analogue in any event, as they were merely temporary disarmaments, in contrast to § 922(g)(1)’s permanent disarmament.
The first set involves laws that prohibited minors from
purchasing or possessing firearms. Of course, a limitation
on a minor’s right is necessarily a temporary limitation,
given that the limitation falls away once the minor passes the
age of majority. Moreover, the idea that historical
limitations on the scope of a
minor’s
constitutional rights can
justify even greater restrictions on an
adult’s
rights
contradicts the Supreme Court’s repeated conclusions that
other fundamental constitutional rights apply differently to
minors.
See, e.g.
,
New Jersey v. T.L.O.
,
The same is true of the laws that prohibited the sale of
firearms to those of unsound mind. These historical laws
only provide support for disarming those who are
presently
ill.
See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t
, 837 F.3d
678, 705–06 (6th Cir. 2016) (en banc) (Batchelder, J.,
concurring in most of the judgment). “Our common law
heritage has long recognized that mental illness is not a
permanent condition.”
Tyler
, 837 F.3d at 710 (Sutton, J.,
concurring in most of the judgment);
see also
Anthony
Highmore,
A Treatise on The Law of Idiocy and Lunacy
73
(Exeter, George Lamson 1822) (“A lunatic is never to be
looked upon as irrecoverable.”). “At the time of the
*88
Founding” “mental illness was considered a
temporary
ailment that only justified a
temporary
deprivation of
rights.”
Mai v. United States
,
The majority next proffers four state laws that restricted
the possession of firearms by those who were intoxicated, or
the sale of firearms to them. But offering just four
Reconstruction-era
laws “passed scores of years
post-Ratification … misses the mark by a wide margin.”
Connelly
,
The laws disarming “tramps” are no different. They too
did not effectuate permanent disarmaments. Rather, they
applied only to individuals who were actively engaging in
certain activities.
See
Eugene Volokh,
Implementing the
Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda
, 56 UCLA L.
Rev. 1443, 1475 (2009) (distinguishing between restrictions
that limit “how” or “when” one may carry, and restrictions
that limit “who” may carry). For example, Ohio’s law
applied to men who were not “in the county in which he
usually lives or has his home” and were “found going about
begging and asking subsistence by charity.”
State v. Hogan
,
63 Ohio St. 202, 208 (1900). “The point of prohibiting
armed tramps from threatening harm to another’s person or
property was plainly to prevent violence.” Greenlee,
Historical Justification
at 270 (citing
Hogan
, 63 Ohio St. at
215, 219). As the Ohio Supreme Court explained in
upholding this law against constitutional challenge, the law
*89
USA V . D UARTE 51
did not prohibit carrying firearms generally but only carrying
firearms for the unlawful purpose of “terrorizing” the
community.
See Hogan
,
Altogether, the majority’s proffered laws simply
effectuated temporary disarmaments. And a temporary
disarmament is not a relevant analogue to the lifetime bar on
possession that § 922(g)(1) imposes.
See Rahimi
, 602 U.S.
at 699 (emphasizing “[s]ection 922(g)(8)’s restriction was
temporary as applied to Rahimi”);
id.
at 713 (Gorsuch, J.,
concurring) (stressing the same point);
Kanter
, 919 F.3d at
468 n.18 (Barrett, J., concurring) (distinguishing between
permanent and temporary disarmaments). Because the
“how” of the historical temporary disarmaments do not
match § 922(g)(1)’s much-broader permanent disarmament,
these laws are not “relevantly similar” analogues.
Rahimi
,
3. Absolute Discretion
The consequences of the principle the majority announces are profound. The majority puts it entirely within the hands of “the legislature [to] determine[] [who] represent[s] a ‘special danger of misuse.’” In doing so, our court neuters any judicial oversight of the legislative determinations as to who can be permanently disarmed— effectively stripping them of their Second Amendment rights altogether.
By granting legislatures unreviewable discretion to
disarm entire categories of individuals, the majority
necessarily returns right back to a regime of deference to
legislative interest-balancing rejected by the Supreme Court
in .
See Range
, 124 F.4th at 228 (rejecting the
*90
approach the majority takes here “because such ‘extreme
deference gives
legislatures unreviewable power
to
manipulate the Second Amendment by choosing a label’”
(quoting
Folajtar
,
It is problem enough that the majority steps back into a regime of interest-balancing. But the majority goes even further. Instead of just returning to the old interest-balancing regime—in which our court applied either strict or intermediate scrutiny, see, e.g. , Young , 992 F.3d at 783– 84—the majority’s decision here effectively now applies rational basis review to categorical firearm disarmaments. One step forward in , three steps back in the Ninth Circuit.
As
Heller
explained, “[i]f all that was required to
overcome the right to keep and bear arms was a rational
basis, the Second Amendment would be redundant with the
separate constitutional prohibitions on irrational laws, and
would have no effect.”
The majority’s rational basis test doesn’t stop at
disarming just felons either. Under the majority’s extreme
deference, the legislature can disarm anyone it deems to
present a “special danger.” States could, for example,
disarm “aliens, or military veterans with PTSD.”
Nat’l Rifle
Ass’n, Inc. v. A.T.F.
, 714 F.3d 334, 345 (5th Cir. 2013)
(Jones, J., dissental). And why stop at felons? Those with
misdemeanor convictions could be disarmed too. Perhaps
even just those who have only ever been indicted. Those
with a below-average IQ score could lose their right to bear
*91
arms.
[19]
Those who are unemployed, are less educated, or
have a low income could be banned, since a legislature could
rationally conclude that they were more likely as a group to
[18]
See Kanter
,
[19] See, e.g. , Richard J. Herrnstein et al., Does IQ Significantly Contribute to Crime? , in Taking Sides: Clashing Views on Controversial Issues in Crime and Criminology 34–42 (6th ed. 2001) (arguing that IQ is a significant cause of crime and indicating that criminal populations generally have an average IQ below the mean).
*92
commit violent crimes.
[20]
How about everyone under the age
of 25? Of course, they could be disarmed too under the
majority’s rationale.
[21]
There are countless classes of people
for whom a legislature could muster up enough statistics to
show that they are more likely to commit certain crimes
using a firearm than the general public: men;
[22]
people who
[22]
See United States v. Daniels
,
2012/tables/42tabledatadecoverviewpdf/table_42_arrests_by_sex_2012 .xls)).
play violent videogames; [23] transgender persons; [24] registered Democrats. [25]
The merits of the social science behind each of these suspect classifications may not be rock-solid. But under the majority’s rational basis test, I see no reason why they would not pass constitutional muster. After all, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” F.C.C. v. Beach Commc’ns, Inc. , 508 U.S. 307, 315 (1993). “[T]he rational basis standard ‘asks whether there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Montana Med. Ass’n v. Knudsen , 119 F.4th 618, 630 (9th Cir. 2024) (quoting Olson v. California , 104 F.4th 66, 77 (9th Cir. 2024) (en banc)) (cleaned up). With no more than a rational basis requirement, legislatures have carte blanche authority to disarm any disfavored groups.
*93
USA V . D UARTE 56
We would never
treat any other fundamental
constitutional right this way. This “approach once again
makes the Second Amendment a constitutional outlier.”
Perez-Garcia
,
Try to imagine any other constitutional right that the members of this majority would treat the way it treats the Second Amendment—explicitly providing our court’s imprimatur to “overbroad” laws and granting governments authority to strip the rights even of “law-abiding people who [are] not dangerous, violent, untrustworthy, or unstable.” I can’t think of one. The Second Amendment is inarguably the red-headed stepchild of the Constitution.
III. Response to Separate Concurrence
Judge Collins’s concurrence offers a different route to get to the majority’s conclusion. The concurrence first accepts the majority’s view that there is a historical tradition that rests on the back of the racially and religiously *94 discriminatory laws that categorically disarmed certain groups at the founding. But unlike the majority, Judge Collins is unwilling to leverage that tradition to authorize a freewheeling power today to disarm any group a legislature desires, since that historical principle would be too broad to satisfy ’s commands and would effectively eliminate an express constitutional guarantee. So to cabin the principle, the concurrence concludes that a legislature’s categorical disarmament power must at least be tethered to some group that was actually disfavored at the founding. Thus the Second Amendment does not prevent legislatures from categorically disarming those who were disarmed in the past, such as Loyalists, Catholics, Native Americans, Blacks, and slaves (although the concurrence quickly adds that all of these groups—except modern anglophiles, I suppose—would presumably be protected from singling out today by other constitutional provisions).
It’s an admirable attempt by Judge Collins to cabin the majority’s breathtakingly broad historical principle and to gerrymander something to save § 922(g)(1) as applied to nonviolent felons without inventing a sweeping exception to the Second Amendment that so obviously swallows the rule. The threshold problem with that approach, though, is the stubborn fact that felons were never, as a group, categorically disarmed at the founding. The concurrence needs some mechanism to extend the disarmament power to all felons notwithstanding this historical obstacle, so it concludes that the modern power to disarm extends not only to those who were disarmed at the founding, but also to any group that could have been treated as bad as or worse than being disarmed. This works, the concurrence concludes, because legislatures at the founding could treat felons worse than just disarming them—they could impose the death penalty upon them. Therefore, “taken together,” the two historical traditions of the state power to severely punish felons and the state power to categorically disarm historically disfavored groups are enough to sustain § 922(g)(1)’s constitutionality.
I offer a few points in response to Judge Collins’s gloss on the majority’s approach.
First, the different route taken by the concurrence still runs into many of the same flaws that I and other judges have already identified with the majority’s approach. For starters, both the majority and concurrence depend on a false history. As I already explained, the colonies departed from the older *95 common law tradition of generally imposing the death penalty for felonies, and that trend continued through the founding and into succeeding generations. So to get around this absence of historical support, the concurrence makes the same analytical move the majority does, contending that what matters is not that real history supports its position, but rather that history theoretically could have supported its position, since presumably Founding-era legislatures had the discretion to make basically any felony (not to mention many non-felonies) death eligible.
But that doesn’t do the trick. requires a
“well-established” historical tradition, not speculation about
what historically could have happened in a Marvel-style
multiverse.
The concurrence’s historical analysis tracks the majority’s flaws in another way too. The concurrence presupposes that felonies at the founding were the equivalent of felonies today. But as described in response to the majority, many felonies today bear little resemblance to the felonies at the founding that were eligible for the death penalty. See, e.g. , Garner , 471 U.S. at 14. This is particularly problematic for the concurrence. If the whole point of the concurrence’s novel approach is to arrive at the same conclusion as the majority but in a way that does not give carte blanche to legislatures to simply disarm whomever they want, then you would think that the types of “felons” disarmed today would need to be the same types of “felons” usually executed at the founding. Where the only similarity is the label “felon,” then the constraining rationale for the concurrence’s alternative approach falls apart.
From the laws that disarmed Catholics, Loyalists, slaves,
Blacks, and Native Americans the concurrence also seems to
draw the same principle as the majority: That these groups
of persons were all deemed to present a “special danger of
misuse.” But like the majority the concurrence fails to
acknowledge that each of these “[l]aws imposing class wide
disarmament were enacted during times of war or civil strife
where separate sovereigns competed for loyalty.”
Range
,
It is also important to notice that while the concurrence makes an admirable effort to reach a narrower holding than the majority’s, it is far from clear that it successfully achieves that goal. The concurrence would cabin the discretion afforded to legislatures in just one dimension while leaving a wide-open path to generally disarm in just slightly different ways. The concurrence contends that its approach “confin[es] any legislative categorical *98 of the day, the concurrence would still “give[] legislatures unreviewable power to manipulate the Second Amendment [just] by choosing a label.” Id. at 228 (quoting Folajtar , 980 F.3d at 912 (Bibas, J., dissenting)).
And while at first blush the concurrence’s serpentine approach may seem to be a handy way to justify disarming all felons—but only felons—on closer inspection it unfortunately isn’t as constrained as it first appears. If, as the concurrence posits, the “legislative categorical disarmament power” can apply to any “historically based classes of persons who could be subjected to equivalent or greater disabilities,” then it is not just felons who would be affected. While the concurrence would rely on “ other provisions of the Constitution” to cabin its approach, other large groups besides felons still fall in the gap. Legislatures at the founding punished—including with death or lengthy imprisonment—those who engaged in conduct that the founding generation deemed to be sexually immoral or deviant, a tradition of disarmament that could presumably extend to the massive part of society today who engage or have engaged in similar conduct. [27] Legislatures at the founding also allowed for the indefinite imprisonment of delinquent debtors in debtor’s prisons, a tradition that one could expect to allow for disarming the bankrupt or insolvent today. [28] The sexually immoral and debtors at the founding certainly were “subjected to legal disabilities that were equivalent to, or more severe than,” disarmament. If legislatures today can disarm those who fall in even just these two “historically based” categories, a large number of Americans beyond just “felons” could be disarmed under the concurrence’s approach. [29] And I’m sure if we tried we could think of more groups.
*99 [28] See Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 81 (2002); see also generally Charles Dickens, Little Dorrit (London, G.L. Wright 1857). See, e.g. , Bankruptcy Filing Statistics, United States Courts,
https://www.uscourts.gov/data-news/reports/statistical-
reports/bankruptcy-filings-statistics (last visited April 21, 2025);
Lindsay T. Labrecque & Mark A. Whisman,
Attitudes Toward and
Prevalence of Extramarital Sex and Descriptions of Extramarital
Partners in The 21st Century
, 31 J. Family Psych. 952, 952–57 (2017);
Lawrence B. Fine,
Trends in Premarital Sex in The United States,
1954-2003
, Pub. Health Rep., Jan.–Feb. 2007, at 76 (noting that
“[a]lmost all individuals of both sexes have intercourse before
Now you might think that judges and state legislatures
out here on the left coast would never, ever rely on historical
laws punishing sexual conduct and impoverishment to
justify modern disarmament. If so, you would be wrong.
Our court has repeatedly made sufficiently clear that when it
comes to justifying disarmament,
any
stick will do to beat a
dog—even the ugliest stick. One need look no further than
this very case, where the majority and the government (and
the concurrence) justify disarming non-violent felons by
relying on racially and religiously discriminatory laws.
Notwithstanding the majority’s professed displeasure with
such discriminatory laws, this displeasure apparently takes a
back seat to their “demonstrated dislike of things that go
bang.”
See Mai
,
felons, would still leave ample avenues to get to much of the same result as the “legislatures-can-ban-whomever-they- want” principle adopted by the majority today. I give the concurrence an “A” for effort, but ultimately the same failing grade as the majority for its slightly different but equally flawed approach.
IV. Conclusion
It’s worth reiterating at this point how unnecessary it was for the majority to reach the merits of Duarte’s Second Amendment claim in this case. If forced to decide whether to apply the plain error or de novo standard of review, I would easily predict that a majority of this en banc panel would apply plain error. But in its zeal to reach and broadly deny Duarte’s Second Amendment claim on the merits, the majority is happy to simply assume de novo review. That allows it to announce the broadest of holdings, giving legislatures effectively unconstrained authority to disarm entire swaths of our citizenry. Once again we demonstrate our court’s deep-seated prejudice against a fundamental constitutional right, and I must respectfully dissent.
Notes
[*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. Aligning itself with the Fourth, Eighth, Tenth, and Eleventh Circuits, the en banc court held that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Duarte. Judge R. Nelson, joined by Judge Ikuta, concurred in the judgment. Judge Nelson wrote that because Duarte failed to raise his Second Amendment challenge before the district court, this court must apply plain error review. He wrote that there was no plain error by the district court, and would uphold the conviction; he would not reach the merits of Duarte’s Second Amendment challenge under de novo review. Judge Collins concurred in the judgment. He agreed with the majority’s ultimate conclusion that Duarte’s as-applied Second Amendment challenge to his conviction under § 922(g)(1) fails on the merits even under de novo review. He disagreed with the majority’s conclusion that,
[1] The United States Sentencing Commission estimates that 88.5% of
convictions under § 922(g) are due to prior felony convictions.
See
U.S.
Sent’g Comm’n, Quick Facts: 18 U.S.C. § 922(g) Firearms Offenses
(2024),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/quick-facts/Felon_In_Possession_FY23.pdf;
see also
Rehaif v. United States
,
[2] Dru Stevenson, In Defense of Felon-in-Possession Laws , 43 Cardozo L. Rev. 1573, 1575 (2022); id. at 1594–98 (describing § 922(g)(1)’s impact on the federal background check system). This was the state of Second Amendment affairs when Steven Duarte was indicted, tried, convicted, and sentenced as a felon in possession of a firearm in violation of § 922(g)(1). It was only after he filed his notice of appeal to our court, that the Supreme Court issued its decision in Bruen , which worked a sea change in the analytical framework that the federal courts had developed since Heller issued. The Court in Bruen rejected the “two-step framework” Courts of Appeals had “coalesced around” since Heller to evaluate whether gun regulations violate the Second Amendment. Bruen , 597 U.S. at 17. The Court clarified the standard for analyzing Second Amendment claims: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Id. at 24. Bruen was issued on June 23, 2022; Duarte filed his opening brief in our court on January 27, 2023, and for the first time challenged the constitutionality of § 922(g)(1) as applied to him. Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under ’s analytical framework. While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake
[3] Dissenting, Judge M. Smith contended that
Vongxay
was not clearly
irreconcilable with
Bruen
, and thus, foreclosed Duarte’s constitutional
challenge.
Duarte
,
[4] See also Bruen , 597 U.S . at 15, 29–31, 33 n.8, 38 & n.9, 70–71.
[5] A “shall-issue” regime is “where authorities must issue concealed-carry
licenses whenever applicants satisfy certain threshold requirements,
without granting licensing officials discretion to deny licenses based on
a perceived lack of need or suitability.”
Bruen
,
[6]
See, e.g.
,
United States v. Yancey
,
[8] We recognize that there is “ongoing scholarly debate” regarding the
appropriate time frame of our analysis—whether we must only look to
1791 and the surrounding period or whether we may also consider 1868
and the surrounding period.
See Rahimi
,
[9] We do not disagree with Judge Collins’s conclusion that “taken
together” both historical principles—that legislatures may disarm those
who have committed the most serious crimes, and that categorical
disarmament was also within the legislative power—serves to bolster our
conclusion that § 922(g)(1) is categorically constitutional.
See
Concurring Op., Collins, J., at 58–60;
see also Rahimi
,
[10]
[10] Colonies and states also authorized seizure of firearms from those who
engaged in misdemeanor hunting offenses, such as hunting partridge or
deer.
See, e.g.
, Act of Oct. 9, 1652, Laws and Ordinances of New
Netherlands 138 (1868) (forbidding partridge and game hunting “on pain
of forfeiting the gun”); Act of Apr. 20, ch. III (1745), 23 Acts of the
North Carolina General Assembly 218, 219 (1805) (prohibiting
nonresidents from hunting deer in “the King’s Wast” and stating that any
Thus, “it is difficult to conclude that the public, in 1791,
would have understood someone facing death and estate
forfeiture to be within the scope of those entitled to possess
arms.”
Medina
,
[11]
disarmament is also permissible.
See Rahimi
, 602 U.S. at
699 (“[I]f imprisonment was permissible to respond to the
use of guns to threaten the physical safety of others, then the
lesser restriction of temporary disarmament that Section
922(g)(8) imposes is also permissible.”);
see also Diaz
, 116
F.4th at 469 (“[I]f capital punishment was permissible to
respond to theft, then the lesser restriction of permanent
disarmament that § 922(g)(1) imposes is also permissible.”);
Jackson
,
[11] We note that § 922(g)(1) does not necessarily affect permanent
disarmament of all felons. Under § 921(a)(20), certain offenses are
excluded from § 922(g)(1)’s ambit including “offenses relating to the
regulation of business practices.” 18 U.S.C. § 921(a)(20). Furthermore,
“[a]ny conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter.”
Id.
And under
§ 925(c), a felon may seek administrative relief and regain his right to
bear arms. 18 U.S.C. § 925(c). However, this “relief provision has been
rendered inoperative . . . for Congress has repeatedly barred the Attorney
General from using appropriated funds ‘to investigate or act upon [relief]
applications.’”
See Logan v. United States
,
[12] See also Letter from John Marshall, Chief Justice, Supreme Court of the United States, to Edward Livingston (Oct. 24, 1825), https://findingaids.princeton.edu/catalog/C0280_c3493 (last visited Feb. 7, 2025) (noting that he had “no marginal notes to make nor any alterations to suggest” and stating that “no former legislator has relied sufficiently on [provisions that deprived criminals of civil political rights]; and [that he had] strong hope of its efficacy”). contends that the notion that all felonies at the founding were actually punished by death or forfeiture is “shaky.” See Kanter , 919 F.3d at 458 (Barrett, J., dissenting) (“The premise of this argument—that the states permanently extinguished the rights of felons, either by death or operation of law, in the eighteenth and nineteenth centuries—is shaky.”). However, this argument misperceives our standard. To find Duarte’s punishment consistent with the founding generation’s understanding of the Second Amendment, history need not show that every felony was punished with death and estate forfeiture. It may be the case that by the time of the founding, legislatures made the policy choice to retreat from harsher punishments. But this does not mean that, as a matter of constitutional authority, legislatures lacked the ability to impose such punishments. Holding
[13] Although they did not directly prohibit Native Americans from
possessing firearms, “these laws still inform how early settlers of the
colonies that became the United States thought about regulating
firearms.”
Williams
,
[14] At least ten state statutes restricted the possession or sale of firearms to those below certain ages: Act of July 13, 1892, ch. 159, § 5, 27 Stat. 116, 117 (D.C.); Act of Feb. 2, 1856, No. 26, § 1, 1855 Ala. Acts 17; Act of Apr. 8, 1881, ch. 548, § 1, 16 Del. Laws 716, 716; Act of Feb. 17, 1876, No. 128, § 1, 1876 Ga. Laws 112, 112; Act of Feb. 10, 1882, ch. 4, §§ 1-2, 1882 N.J. Acts 13, 13-14; Act of May 10, 1883, § 1, ch. 375, 1883 N.Y. Laws 556, 556; Act of Mar. 6, 1893, ch. 514, § 1, 1893 N.C. Pub. Laws 468, 468; Act of June 10, 1881, No. 124, § 1, 1881 Pa. Laws 111, 111-112; Act of Apr. 13, 1883, ch. 374, § 1, 1883 R.I. Acts & Resolves 157, 157; Act of Nov. 16, 1896, No. 111, § 1, 1896 Vt. Acts & Resolves 83, 83.
[15] Three state statutes restricted the sale of firearms to those of unsound mind: Act of Feb. 4, 1881, ch. 3285, No. 67, § 1, 1881 Fla. Laws 87, 87; Crimes and Punishments-Relating to Minors and Deadly Weapons or Toy Pistols, ch. 105, § 1, 1883 Kan. Sess. Laws 159; Act of Feb. 17, 1899, ch. 1, § 52, 1899 N.C. Pub. Laws 3. intoxicated;
[16] and (4) the possession of weapons by certain vagrants—known as “tramps.”
[17] Indeed, laws disarming “tramps” illustrate the broad and imprecise nature of categorical disarmament. “Tramps” were typically defined as those who went “about from place to place begging and asking or subsisting upon charity.” See, e.g. , Act of Aug. 1, 1878, ch. 38, § 1, 1878 N.H. Laws 170.
[16] Four other state statutes restricted the possession of firearms by those who were intoxicated: Act of Feb. 23, 1867, ch. 12, § 1, 1867 Kan. Sess. Laws 25; Act of Feb. 28, 1878, ch. 46, § 2, 1878 Miss. Laws 175; 1 Mo. Rev. Stat. ch. 24, Art. II, § 1274, at 224 (1879); Act of Apr. 3, 1883, ch. 329, § 3, 1883 Wis. Sess. Laws, Vol. 1, at 290.
[17] And thirteen more state statutes restricted the possession of firearms
by those who were deemed “tramps”: Act of Mar. 27, 1879, ch. 59, § 4,
1879 Conn. Pub. Acts 393, 394; Act of Mar. 27, 1879, ch. 155, § 8, 1879
Del. Laws 223, 225; Arrest Trial and Punishment of Tramps, ch. 43, § 4,
1890 Iowa Acts 68, 68-69; Act of Apr. 24, 1880, ch. 257, § 4, 1880 Mass.
Acts 231, 232; Miss. Rev. Code § 2964 (1880); Act of Aug. 1, 1878, ch.
38, § 2, 1878 N.H. Laws 170, 170; Act of May 5, 1880, ch. 176, § 4, 1
N.Y. Laws 296, 297; Act of Mar. 12, 1879, ch. 198, § 2, 1879 N.C. Sess.
Laws 355, 355; Act of June 12, 1879, § 2, 76 Ohio Laws 191, 192; Act
of Apr. 30, 1879, No. 31, § 2, 1879 Pa. Laws 33, 34; Act of Apr. 9, 1880,
ch. 806, § 3, 1880 R.I. Acts & Resolves 110, 110; Act of Nov. 26, 1878,
No. 14, § 3, 1878 Vt. Acts & Resolves 29, 30; Act of Mar. 4, 1879, ch.
188, § 4, 1879 Wis. Sess. Laws 273, 274.
man, woman, and child, in so far as they do
not promptly and fully supply his demands.
He is a thief, a robber, often a murderer, and
always a nuisance. He does not belong to the
working classes, but is an idler.
State v. Hogan
,
[18] writing that the state right to bear arms “was never intended as a warrant for vicious persons to carry weapons with which to terrorize others.” Id. at 219. Certainly not all “tramps” were “vicious” or “dangerous.” Yet, thirteen states passed laws categorically disarming them on the belief that tramps, as a class, presented a danger to the community if armed. To be clear, these laws reflect overgeneralized and abhorrent prejudices that would not survive legal challenges today. And many of these laws would likely be unconstitutional today under other parts of the Constitution. But these laws are reflective of American history and
[19] We do not hold, as Judge Collins would, that every legislative judgment that a group of individuals presents a “special danger of misuse” must be rooted in history. See Concurring Op., Collins, J., at 50. However, we recognize that, in this case, Congress’s well-founded determination that felons, as a class, present a special danger of firearm misuse is fully supported by our tradition of regulating those who have committed the most serious crimes.
[20] Echoing Justice Thomas’s lone dissent in Rahimi , Judge VanDyke’s granular historical analysis contends that historical analogues for § 922(g)(1) are not sufficiently similar to uphold the application of
[1] Like the majority, I assume arguendo that Duarte’s challenge should be reviewed de novo . See Opin. at 13–14. 626. Rather, the Second Amendment right was “enshrined with the scope [it] w[as] understood to have when the people adopted [it].” Id. at 634–35. In New York State Rifle & Pistol Ass’n v. Bruen , 597 U.S. 1 (2022), the Supreme Court set forth a basic framework based in “constitutional text and history” for “defining the character” and “outer limits” of the Second Amendment right and for “assessing the constitutionality of a particular regulation.” Id . at 22. The Court instructed: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Id. at 24 (citation omitted). In Rahimi , the Court clarified that the “appropriate” historically based analysis requires “considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”
[2] See 5 T HE S TATUTES AT L ARGE OF P ENNSYLVANIA FROM 1682 TO 1801, at 627 (James T. Mitchell & Henry Flanders eds., Wm. Stanley Ray 1898) (1759 statute providing “[t]hat all arms, military accoutrements, Colonial American legislatures also adopted other laws that categorically prohibited, or severely limited, the sale of firearms and ammunition to specific classes of persons. These included Native Americans,
[3] as well as, in southern gunpowder and ammunition of what kind soever, any papist or reputed papist within this province hath or shall have in his house or houses . . . , shall be taken from such papist or reputed papist by warrant”); 52 A RCHIVES OF M ARYLAND : P ROCEEDINGS AND A CTS OF THE G ENERAL A SSEMBLY OF M ARYLAND 1755–1756, at 454 (Baltimore, J. Hall Pleasants ed., Md. Hist. Soc’y 1935) (1756 statute providing “that all Arms Gunpowder and Ammunition of what kind soever any Papist or reputed Papist within this Province hath or shall have in his House or Houses or elsewhere shall be taken from Such Papist or reputed Papist by Warrant”); 7 T HE S TATUTES AT L ARGE ; B EING A C OLLECTION OF A LL THE L AWS OF V IRGINIA F ROM THE F IRST S ESSION OF THE L EGISLATURE IN THE Y EAR 1619, at 35–39 (Richmond, William Waller Hening ed., Franklin Press 1820) (1756 statute providing “[t]hat no Papist, or reputed
[5] See 5 T HE A CTS AND R ESOLVES , P UBLIC AND P RIVATE , OF THE P ROVINCE OF THE M ASSACHUSETTS B AY 479–84 (Boston, Wright & Potter Printing Co. 1886) (1776 statute providing that “every male person above sixteen years of age . . . who shall neglect or refuse to subscribe a printed or written declaration . . . upon being required thereto . . . shall be disarmed, and have taken from him, in manner hereafter directed, all such arms, ammunition and warlike implements, as, by the strictest search, can be found in his possession or belonging to him”); 9 T HE S TATUTES AT L ARGE ; B EING A C OLLECTION OF A LL THE L AWS OF V IRGINIA F ROM THE F IRST S ESSION OF THE L EGISLATURE IN THE Y EAR 1619, at 281–83 (Richmond, William Waller Hening ed., J. & G. Cochran 1821) (1777 statute providing that any male above the age of 16 who refuses to take a loyalty oath will be “disarmed”); 9 T HE S TATUTES AT L ARGE OF P ENNSYLVANIA FROM TO 1801, at 110–14 (James T. Mitchell & Henry Flanders eds., Wm. Stanley Ray 1903) (1777 statute providing “[t]hat every person above the age [of 18] refusing or neglecting to take and subscribe the said oath or affirmation shall during the time of such neglect or refusal . . . be disarmed”); 7 R ECORDS OF THE C OLONY OF R HODE I SLAND AND P ROVIDENCE P LANTATIONS IN N EW E NGLAND 567–68 (Providence, John Russell Bartlett ed., A. Crawford Greene 1862) (1776 statute providing “that in case any such suspected [loyalist] shall refuse to subscribe [to an oath],” he will be “search[ed] for all arms, ammunition and warlike stores,” which will be taken); T HE A CTS OF A SSEMBLY OF THE S TATE OF N ORTH C AROLINA 42–44 (Newbern, James Davis 1778) (1777 statute providing “[t]hat all Persons failing or refusing to take the Oath of Allegiance, and permitted by the County Courts . . . to remain in the State, . . . shall not keep Guns or other Arms within his or their House”); J OURNAL OF THE P ROVINCIAL C ONGRESS OF S OUTH C AROLINA , 1776, at 77–79 (Charlestown 1776) (1776 resolution providing “[t]hat all persons who shall hereafter bear arms against, or shall be active in opposing the measures of the Continental or Colony Congress, and upon due conviction thereof before a majority of the Committee of the district or parish where such persons reside, be disarmed, and at the discretion of the said Committee taken into custody”).
[6] The dissent obviously does not like that, in determining when a given
historical analogue is “sufficiently similar,”
Rahimi
applied a greater-
includes-the-lesser standard,
Rahimi
,
[7] The dissent, therefore, is wrong in insisting on an identical tradition, viz ., a showing that felons, “as a group, [were] categorically disarmed at the founding.” See Dissent at 119.
[8] The vacated panel opinion in this case ascribed to Justice Wilson the
view that the widespread, common understanding of “felony” was
incorrect as a technical and historical matter.
See United States v.
Duarte
, 101 F.4th 657, 689,
vacated and reh’g en banc granted,
108
F.4th 786 (9th Cir. 2024);
see also
Dissent at 91–92 (similar). But Justice
The same treatises noted above also recognized the
important point that the legislature had the authority to
expand the category of “felony” to include additional serious
crimes and that the legislature could, if it wished, subject
such newly defined offenses to the punishment of death that
was typically allowed for felonies.
See
4 B LACKSTONE ,
supra
, at 98 (“And therefore if a statute makes any
new
offence felony, the law implies that it shall be punished with
death . . . , as well as with forfeiture” (emphasis added));
1 H ALE ,
supra
, at 703–04 (recognizing the legislature’s
authority to enact “new felonies”); 1 H AWKINS ,
supra
, at 107
(similar). And that power to expand the category of felonies
was not limited to only those offenses involving violent acts.
Thus, for example, “[s]hortly after proposing the Bill of
Rights, the First Congress . . . punished forgery of United
States securities, ‘running away with a ship or vessel, or any
goods or merchandise to the value of fifty dollars,’ treason,
and murder on the high seas with the same penalty: death by
hanging.”
Harmelin v. Michigan
, 501 U.S. 957, 980–81
(1991) (opinion of Scalia, J.) (original brackets omitted)
(quoting Crimes Act of 1790, 1 Stat. 112, 114–15 (1790));
see also United States v. Tully
,
[9] See also , e.g. , A CTS OF THE G ENERAL A SSEMBLY OF THE P ROVINCE OF N EW -J ERSEY 121 (Burlington, Samuel Allinson ed., Isaac Collins 1776) (1741 statute imposing “the Pains of Death” for “Felons” convicted of impersonating another during bail proceedings); T HE H ISTORY OF THE P ROVINCE OF N EW -Y ORK FROM THE F IRST D ISCOVERY TO THE Y EAR 1732, at 216 (London, William Smith ed. 1757) (stating that “[t]o counterfeit . . . is Felony without Benefit of Clergy”); A D IGEST OF THE L AWS OF M ARYLAND 255–56 (Baltimore, Thomas Herty ed. 1799) (1776–78 statutes imposing “death as a felon” for forgery and counterfeiting); A D IGEST OF THE L AWS OF THE S TATE OF G EORGIA 181 (Philadelphia, Robert Watkins & George Watkins eds. 1800) (hereinafter “G A . D IGEST ”) (1773 statute providing that a counterfeiter of “paper money . . . shall be adjudged a felon, and shall suffer death without benefit of clergy”).
[10] See , e.g. , 1 A M ANUAL OF THE L AWS OF N ORTH -C AROLINA 199 (Raleigh, John Haywood ed., 2d ed. 1808) (1790 law imposing felon status and death for horse theft); G A . D IGEST , supra , at 467–68 (1792 law imposing felon status and death for forgery); id. at 341–43 (1786 law Thus, at the time of the adoption of the Second Amendment, it was well understood that a legislature had the authority to define and expand a category of serious crimes
[12] Thus, while Congress and the States shifted away from capital punishment in the decades after the founding, see B ANNER , supra , at 112–43, this evolution in thought did “not alter the nature of felony” as a serious crime worthy of harsh punishment, as St. George Tucker recognized specifically with respect to Virginia’s decision to abolish
[1] Our court has also crafted another exception to Rule 52(b)’s plain error review in cases where the court is “presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” United States v. McAdory , 935 F.3d 838, 841–42 (9th Cir. 2019) (alterations in original) (quoting United States v. Garcia-Lopez , 903 F.3d 887, 892 (9th Cir. 2018)). Both prongs of this exception would also appear to be met in this case, again leading to de novo review. Under the majority’s chosen approach—upholding categorical bans on all felons—Duarte’s claim raises a purely legal determination. See United
[2] Other members of our court have raised the questionable provenance
of the “pure questions of law” exception and stated that the exception
should be reconsidered.
See, e.g.
,
Zhou
,
[3]
Compare United States v. Hunt
,
[4] I do not address the majority’s conclusions at
Bruen
’s first step,
see
597
U.S. at 17, because I agree that Duarte’s challenged conduct is covered
by the text of the Second Amendment, and that Duarte is a part of “the
People” protected by the Second Amendment’s guarantees.
B. The Status of our Pre-
Bruen
Precedent
At the outset, the majority incorrectly concludes that
did not affect the holding or analysis of our court’s
precedent rejecting Second Amendment challenges to
§ 922(g)(1).
See Vongxay
, 594 F.3d at 1114–18.
Bruen
abrogated that precedent.
See
[5]
Compare, e.g.
,
Dubois
, 94 F.4th at 1293 (“An intervening Supreme
Court decision abrogates our precedent only if the intervening decision
is both ‘clearly on point’ and ‘clearly contrary to’ our earlier decision….
To abrogate a prior-panel precedent, ‘the later Supreme Court decision
must “demolish” and “eviscerate” each of its “fundamental props.”’”
(citations omitted));
Vincent
,
[6]
See, e.g.
, Act for the Punishment of Diverse Capital and Other Felonies,
in Acts and Laws of the State of Connecticut in America
182–83
(Hartford, Hudson & Goodwin 1796) (listing various “felonies” but
punishing only some capitally (
e.g.
, bestiality, arson, bearing false
witness); Act for the Punishment of Certain Atrocious Crimes and
Felonies,
in Acts and Laws of the State of Connecticut in America, supra
, at 183–86 (listing various “felonies” that were punished with a term of
imprisonment (
e.g.
, forgery, counterfeiting, attempted rape, horse theft,
robbery));
General Laws of Pennsylvania, from the Year 1700 to April
22, 1846
, at 155 (Philadelphia, T. & J.W. Johnson 1847) (abolishing
capital punishment for
all
crimes except first-degree murder); An Act to
Prevent the Stealing and Taking away of Boats and Canoes,
in
1
The
Laws of the Province of South Carolina
49 (Nicholas Trott, ed. 1736)
Abridgment and Digest of American Law
715 (Boston,
Cummings, Hilliard & Co. 1824).
In the years immediately after the Founding, the
relationship became even more attenuated.
See
Perez-Garcia
, 1115 F.4th at 1018–19 (VanDyke, J.,
dissental) (detailing this relationship). For example, of more
than twenty crimes the first Congress defined in The Crimes
Act of 1790, only seven were punishable by death.
See
Act
for the Punishment of Certain Crimes Against the United
States, ch. 9, §§ 1–28, 1 Stat. 112, 112–18 (1790).
Manslaughter, perjury, mayhem (the intentional maiming of
another person), and larceny were all non-capital offenses,
punished with imprisonment for a term of years.
Id.
§§ 7,
13, 16, 18. And even for the “nonviolent crimes such as
forgery and horse theft” that the majority points to, “by the
early Republic, many states assigned lesser punishments.”
Range
,
[7]
See also
Joseph G.S. Greenlee,
The Historical Justification for
Prohibiting Dangerous Persons from Possessing Arms
, 20 Wyo. L. Rev.
249, 269 (2020) [hereinafter Greenlee,
Historical Justification
] (“[I]n
West Virginia, someone who shoplifts three times in seven years,
‘regardless of the value of the merchandise,’ is forever prohibited from
possessing a firearm. In Utah, someone who twice operates a recording
device in a movie theater is forever prohibited from possessing a firearm.
And in Florida, a man committed a felony when he released a dozen
heart-shaped balloons in a romantic gesture ….” (footnotes and citations
omitted)).
majority’s
extreme
deference
gives
legislatures
unreviewable power to manipulate the Second Amendment
by choosing a label.”). “Simply classifying a crime as a felony does not meet the
level of historical rigor required by
Bruen
and its progeny.”
Diaz
,
[8] As the above discussion should make clear enough, contrary to Judge
Collins’s caricature of my position I would not require an “
identical
tradition.” I would simply require a historical analogue that has a closer
fit to the modern law and thus has a “comparable burden” and is
“comparably justified” in its restriction on the right of armed self
defense.
Bruen
,
[9] To justify avoiding this approach required by , the majority turns
to a new favorite talismanic Supreme Court line—stating that this would
lead to looking for “a law trapped in amber.” The majority’s fear is
unwarranted. Just as it must do when considering other Second
Amendment challenges, the court here too is perfectly capable of looking
to analogies and other “relevantly similar” Founding-era regulations.
This is not the first cherrypicked line from a Supreme Court Second
Amendment opinion that our court has weaponized to dodge the standard
the Supreme Court has directed us to apply.
See, e.g.
,
McDougall v.
Cnty. of Ventura
, 23 F.4th 1095, 1124 n.1 (9th Cir.),
reh’g en banc
granted, opinion vacated
,
[10] E.g. , Act of Oct. 10, 1779, in 9 Statutes at Large of Pennsylvania 347– 48 (James T. Mitchell & Henry Flanders eds. 1903) [hereinafter, Pa. Statutes at Large]; Act of May 1, 1776, in 5 The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay 479–482 (Boston, Wright & Potter Printing Co. 1886); Act of May 1777, in 9 Statutes at Large 281–82 (Hening ed. 1821) [hereinafter, Va. Statutes at Large ]; Act of 1776, in 7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (Bartlett ed. 1862); Act of 1777, in 24 The State Records of North Carolina 86–89 (Clark ed. 1905); Act of 1778, in 203 Hanson’s Laws of Maryland 1763–1784 , at 193, 278 (Annapolis, Frederick Green 1801); Act of 1775, in 15 The Public Records of the Colony of Connecticut, From May, 1775, to June 1776 , at 193 (Hartford, Case, Lockwood & Brainard Co. 1890) (disarming those who “libel[ed] or defame[d] any of the resolves of the Honorable Congress of the United Colonies” or, upon “complaint being made to the civil authority,” were found to be “inimical to the liberties of this Colony and the other United Colonies in America”); Order of May 21, 1776, in 15 Documents Relating to the Colonial History of the State of New York 103 (Albany, Weed, Parsons & Co. 1887) (ordering the supplying of its militias with “such good Arms fit for soldiers use as they may have collected by disarming disaffected persons”); Act of April 14, 1778, in Acts of the General Assembly of the State of New Jersey 90 (Burlington, Isaac Collins 1777) (granting authority to Council of Safety “to deprive and take from such Persons as they shall judge disaffected and dangerous to the present Government, all the Arms, Accoutrements, and Ammunition which they own or possess”).
[11] See, e.g. , Act of 1778, in 10 Va. Statutes at Large 309–10 (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 … it has become highly expedient … to vest the executive with extraordinary powers for a limited time”); Act of 1779, in 9 Pa. Statutes at Large 441 (calling for the “temporary suspension of law” in the “time[] of public danger” and confining suspected Loyalists).
[12] After the Revolutionary War, some states did continue to disarm
Loyalists. Greenlee,
Disarming the Dangerous
at 53. But these laws too
were temporary—both in the time for which they were enacted, and the
timeframe within which individuals could get their right to bear arms
back upon taking an oath.
measures) was also different than the motivation behind
§ 922(g)(1) (limiting gun crimes). And the manner in which
these
laws effectuated
that purpose—a
temporary
disarmament—does not match § 922(g)(1)’s lifetime ban.
So these laws are not “relevantly similar” to § 922(g)(1).
,
[14] See 1 Journals of the House of Burgesses of Virginia, 1619–1658/59 , at 13 (H.R. McIlwaine ed. 1915) (making it a crime to “sell or give any Indians any piece shott, or poulder, or any other armes offensive or defensive”); Act of 1633 Respecting the Indians, in The Charters and General Laws of the Colony and Province of Massachusetts Bay 133 (T.B. Wait & Co., 1814) (banning the selling or bartering of “any gun or guns, powder, bullets, shot, [or] lead, to any Indian whatsoever”); Ordinance of March 31, 1639, in Laws and Ordinances of New Netherland, 1638–1674 , at 19 (Albany, Weed, Parsons & Co. 1868) (“every Inhabitant of New Netherland … is most expressly forbidden to
[20] See, e.g. , Richard B. Freeman, The Economics of Crime , in 3 Handbook of Labor Economics 3532 (Ashenfelter & Card eds. 1999).
[21] See, e.g. , Richard B. Freeman, Why Do So Many Young American Men Commit Crimes and What Might We Do About It? , J. Econ. Perspectives, Winter 1996, at 29–30.
[23] See, e.g. , Craig Anderson et al., Violent Video Game Effects on Aggression, Empathy, and Prosocial Behavior in Eastern and Western Countries: A Meta-Analytic Review , 136 Psych. Bull. 151, 151–73 (2010) (“[W]e believe that debates can and should finally move beyond the simple question of whether violent video game play is a causal risk factor for aggressive behavior; the scientific literature has effectively and clearly shown the answer to be ‘yes.’”).
[24] See, e.g. , Diana Miconi et al., Meaning in Life, Future Orientation and Support for Violent Radicalization Among Canadian College Students During the COVID-19 Pandemic , Frontiers Psychiatry, Feb. 2022, at 7, 9 (“Transgender and gender-diverse youth emerge as the group at the highest risk of support for [violent radicalization].”).
[25] See Marc Meredith & Michael Morse, Do Voting Rights Notification Laws Increase Ex-Felon Turnout? , 651 Annals Am. Acad. Pol. & Soc. Sci. 220, 229 (2014).
[26] The concurrence is correct to note that I am not a fan of the
“greater-includes-the-lesser” standard. Unless such standards are
rigorously applied, they fail to constrain judges. And it is clear that in
the Second Amendment context judges need constraining, as judges—
like my colleagues in the majority here—can always find a reason to rule
against the Second Amendment when given some flexibility. Indeed,
one of the reasons that rejected the interest balancing two-step
approach was that it gave too much leeway to judges to balance away
constitutional rights. 597 U.S. at 22–24. The Justices have also
repeatedly emphasized that courts must be careful to avoid using
historical analogizing to eliminate constraints.
See id.
at 29 n.7 (noting
that analogizing “is not an invitation to revise th[e] balance [struck by
the founding generation] through means-end scrutiny”);
Rahimi
, 602
U.S. at 740 (Barrett, J., concurring) (noting that “a court must be careful
not to read a principle at such a high level of generality that it waters
down the right”);
id.
at 734 (Kavanaugh, J., concurring) (noting that a
“history-based methodology supplies direction and imposes a neutral
and democratically infused constraint on judicial decisionmaking”);
id.
at 712 (Gorsuch, J., concurring) (noting the problem of permitting judges
“to extrapolate their own broad new principles from” text and history
such that “no one can have any idea how they might rule”). The
concurrence fails to head those warnings when applying the greater-
includes-the-lesser standard here; not only applying that standard, but
extending it beyond the context of temporary disarmament in which the
Rahimi
court applied it to the new context of permanent disarmaments.
[27] See, e.g. , An Act Against, and For The Punishment of, Adultery, in Acts and Laws of the State of Connecticut in America, supra , at 30–31; Martin J. Siegel, For Better or for Worse: Adultery, Crime & the Constitution , 30 J. Fam. L. 45, 48 (1992) (discussing the prevalence of colonial laws prohibiting adultery and sex outside of wedlock); Lawrence v. Texas , 539 U.S. 558, 597 (2003) (Scalia, J., dissenting) (noting that there are “records of 20 sodomy prosecutions and 4 executions during the colonial period” (citing Jonathan Katz, Gay/Lesbian Almanac 29, 58, 663 (1983))).