SELIM ZHERKA, “SAM,” v. PAMELA BONDI, Attorney General of the United States, in her official capacity
Docket No. 22-1108-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: June 9, 2025
August Term, 2022 (Argued: May 08, 2023)
NEWMAN, LYNCH, and PEREZ, Circuit Judges.
Before:
NEWMAN, LYNCH, and PEREZ, Circuit Judges.
The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.*
AFFIRMED.
PETER A. PATTERSON, Cooper & Kirk, PLLC, Washington, DC (Anthony G. Piscionere, Piscionere & Nemarow, P.C., Rye, NY, on the brief), for Plaintiff-Appellant.
LUCAS ISSACHAROFF, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
Plaintiff-appellant, Selim Zherka, filed a lawsuit in the United States District Court for the Southern District of New York against the Attorney General (the “government“), alleging violations of his Second and Fifth Amendment rights. He asserts that
The district court (Philip M. Halpern, J.) dismissed Appellant‘s claims, concluding that Section 922(g)(1) is constitutional as applied to him and that he has no right to a hearing prior to the adoption or application of a categorical prohibition. We agree and therefore AFFIRM the judgment of the district court.1
BACKGROUND
We take the following facts from documents of which we can take judicial notice and the operative complaint, which we accept as true, and we draw all reasonable inferences in Zherka‘s favor. See, e.g., Collymore v. Myers, 74 F.4th 22, 30 (2d Cir. 2023).
I. The Underlying Felony Conviction
On December 22, 2015, Zherka pleaded guilty to one count of conspiracy to make a false statement to a bank and to sign and file a false federal income tax return in violation of
II. Procedural History
On September 11, 2020, Zherka sued the Attorney General seeking declaratory and injunctive relief from claimed violations of his constitutional rights. First, he asserts that Section 922(g)(1) is unconstitutional as applied to someone like him who has been convicted only of a nonviolent felony. Second, he alleges that because he has a constitutionally protected liberty interest in the right to bear arms, the federal government must provide an opportunity for him to restore that interest by an individualized assessment of his dangerousness. As an example of the type of process that he claims is due to him, Appellant points to
On the government‘s motion, the district court dismissed Zherka‘s complaint. See Zherka v. Garland, 593 F. Supp. 3d 73, 82 (S.D.N.Y. 2022). On the Second Amendment issue, it applied our then-prevailing two-step test for assessing the constitutionality of gun restrictions. Id. at 77-80. Under that test, a court first had to “determine whether the challenged legislation impinges upon conduct protected by the Second Amendment,” as informed by the Amendment‘s text and history. United States v. Jimenez, 895 F.3d 228, 232 (2d Cir. 2018) (internal quotation marks omitted). Only if the challenged legislation impinged upon protected conduct would the court then “determine the appropriate level of scrutiny to apply and evaluate the constitutionality of the law using that level of scrutiny.” Id. Relying on the Supreme Court‘s assurance that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful,” District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26 (2008), the district court concluded, at the first step of the test, that Section 922(g)(1) is constitutional as applied “to individuals cоnvicted of non-violent financial felonies,” Zherka, 593 F. Supp. 3d at 77-80.
The district court also rejected Zherka‘s due process claim, reasoning that it was foreclosed by Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). See Zherka, 593 F. Supp. 3d at 80-81. In that case, the Supreme Court determined that Connecticut did not violate the plaintiffs’ procedural due process rights when it required them, as convicted sex offenders, to enroll in a publicly available registry without first receiving
Zherka filed his appeal on May 20, 2022. Shortly thereafter, on June 23, 2022, the Supreme Court issued its decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), repudiating the two-step framework for analyzing Second Amendment challenges that this circuit, and every other regional circuit, had applied. Id. at 17. In response, Zherka argues that we should vacate the district court‘s decision and remand the case for further consideration under the Bruen standard. He alternatively asserts that the government has failed to meet its Bruen burden of demonstrating that there is a history and tradition of regulating firearms in this country in a manner that is analogous to Section 922(g)(1). In other words, he contends that there is no historical analogy to Section 922(g)(1). The government, in response, argues that nothing in Bruen alters the district court‘s conclusion that Zherka, by virtue of his felony conviction, falls outside the scope of the Second Amendment‘s protections and that we should, therefore, affirm the lower court‘s decision.
LEGAL STANDARDS
I. Standard of Review
“We review de novo a district court‘s grant of a defendant‘s motion to dismiss, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff‘s favor.” City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (internal quotation marks omitted).
II. Second Amendment Principles
In a quartet of cases starting with Heller in 2008, the Supreme Court has interpreted the Second Amendment right to keep and bear arms in the context of challenges to firearm regulations. See Antonyuk v. James, 120 F.4th 941, 960-68 (2d Cir. 2024). Three of those four cases have limited applicability to this case because they concerned regulations that were outliers in the breadth of their restrictions on the rights of law-abiding citizens to possess and carry firearms.5 Only United States v. Rahimi, 602 U.S. 680 (2024), dealt with an arguably analogous statute that restricted the possession of firearms by a category of putatively non-law-abiding persons.6 We provided a detailed and comprehensive summary of all four cases in Antonyuk, 120 F.4th at 960-68. Here, we briefly summarize the Bruen standard for analyzing Second Amendment challenges and note the most relevant lessons derived from the Supreme Court‘s other twenty-first century Second Amendment cases.
Under Bruen, a court assessing firearm regulations must first consider whether “the Second Amendment‘s plain text covers an individual‘s conduct.” Bruen, 597 U.S. at 24. If it does, “the Constitution presumptively protects that conduct.” Id. The burden then shifts to the government to “justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. At this step of the Bruen analysis, the government is tasked with identifying historical analogues that demonstrate a “tradition of regulation” that is comparable to the challenged law. Id. at 27. In short, the text of the Second Amendment and the history of firearms regulation in this country are the guiding lights for adjudication of a Second Amendment challenge to a firearm regulation. Id. at 19.
A few other principles from the quartet of Second Amendment cases are worth highlighting. First, the Supreme Court has never repudiated Heller‘s assurance that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful.” 554 U.S. at 626-27, 627 n.26.7 Second, the Court has struck down only firearms laws that overly restrict the rights of “law-abiding, responsible citizens” to own and possess guns. Id. at 635; see also McDonald v. City of Chicago, 561 U.S. 742, 749-50 (2010); Bruen, 597 U.S. at 8-11, 15, 26, 29. Rahimi is the only instance in which the Court has reviewed a law that criminalizes firearms possession by potentially dangerous individuals, and there, the Court upheld the constitutionality of Section 922(g)(8) both facially and as applied. See 602 U.S. at 690. And third, the historical analogues that could support a tradition of firearm regulation do not have to be “dead ringer[s]” for the challenged regulation, especially when the challenged regulation addresses new circumstances. Id. at 692 (internal quotation marks omitted).
DISCUSSION
I. This Appeal Is Ripe for Decision.
Zherka first argues that we should vacate and remand for the district
Zherka points, in part, to Taveras v. New York City, No. 21-398, 2022 WL 2678719 (2d Cir. July 12, 2022) and Sibley v. Watches, No. 21-1986, 2022 WL 2824268 (2d Cir. July 20, 2022), two non-precedential summary orders, to support his argument for vacatur and remand. In both Taveras and Sibley, we vacated and remanded Second Amendment challenges to gun regulations, with little to no analysis, for the district courts to reconsider in light of Bruen. See Taveras, 2022 WL 2678719, at *1; Sibley, 2022 WL 2824268, at *1.
In both of those cases, however, the parties had fully briefed their positions and we had held oral argument prior to Bruen. Here, in contrast, the parties submitted their briefs and offered oral argument after the Supreme Court decided Bruen. We therefore have the full benefit of the parties’ respective Bruen-based arguments before us. It would be inconsistent with the interests of judicial economy to remand this case to the district court, only for the parties to brief the same legal issues again. Moreover, there are no relevant unsettled questions of fact in this case.8 The parties dispute only whether certain historical analogues establish a history and tradition of firearms regulation in this country sufficient to uphold Section 922(g)(1). That dispute raises only questions of constitutional interpretation, which we review de novo. See United States v. Doka, 955 F.3d 290, 293 (2d Cir. 2020) (“We review de novo questions of law, including questions of constitutional interpretation.“). In the absence of material questions of fact, we are just as well equipped as the district court to resolve the outstanding legal issues in this case. Accordingly, we decline to vacate and remand. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418-19 (2d Cir. 2001) (declining to vacate and remand a case that presented a purely legal issue, even though the district court had not reached that legal issue).
II. Bogle Remains Good Law After Bruen.
Prior to the Supreme Court‘s decision in Bruen, we had upheld Section 922(g)(1) as facially constitutional. See United States v. Bogle, 717 F.3d 281, 281-82 (2d Cir. 2013). In Bogle, we rejected a facial challenge to Section 922(g)(1), relying on the assurances in Heller and McDonald that “longstanding prohibitions on the possession of firearms by felons” are presumptively constitutional. Id. at 281, quoting Heller, 554 U.S. at 626, and citing McDonald, 561 U.S. at 786. Contrary to the government‘s assertion here, we did not conclude that “felons as a class are not among the law-abiding citizens protected by the Second Amendment.” Appellee‘s Br. 11. We simply held
Our holding in Bogle survives Bruen. “To mount a successful facial challenge” to Section 922(g)(1), a litigant “must establish that no set of circumstances exists under which the law would be valid, or show that the law lacks a plainly legitimate sweep.” Antonyuk, 120 F.4th at 983 (alterations adopted) (internal quotation marks omitted). As we determined in Bogle, that cannot be done.
In Antonyuk, a case that post-dated Bruen, we upheld New York‘s “good moral character” licensing requirement, which required licensees to possess the character necessary to “be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” 120 F.4th at 985 (emphasis in original), quoting
Other Circuit Courts have also held that neither Bruen nor Rahimi abrogated their prior precedent holding Section 922(g)(1) facially constitutional on the basis of the continued vitality of Heller and McDonald‘s assurances. See United States v. Duarte, --- F.4th ---, 2025 WL 1352411, at *4-6 (9th Cir. 2025) (en banc); Vincent v. Bondi, 127 F.4th 1263, 1264-66 (10th Cir. 2025); United States v. Hunt, 123 F.4th 697, 703-04 (4th Cir. 2024); United States v. Hester, No. 23-11938, 2024 WL 4100901, at *1 (11th Cir. Sept. 6, 2024) (unpublished).
Zherka, however, raises a different challenge; he questions the constitutionality of § 922(g)(1) as applied to him. We have not previously resolved the discrete questions at issue in this as-applied challenge, and we therefore must conduct a Bruen analysis of that claim.
III. Bruen Step One: Felons Are Part of “the People.”
We begin our Bruen analysis with the first step: does the plain text cover Appellant‘s conduct? It clearly does. We construe Zherka‘s complaint as asserting his desire to possess firearms only in a manner that the Second Amendment protects.10 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.”
Because Section 922(g)(1) clearly covers conduct that the Second Amendment presumptively protects, the only remaining question is whether Zherka, as a nonviolent felon, is included among “the people” protected by the Second Amendment.
not. It contends that the Supreme Court has consistently “defined the right to bear arms as limited to ‘law-abiding, responsible citizens.‘” Appellee‘s Br. 10, quoting Heller, 554 U.S. at 635; see also Bruen, 597 U.S. at 31-32 (“It is undisputed that petitioners ... -two ordinary, law-abiding, adult citizens—are part of the people whom the Second Amendment protects.“) (internal quotation marks omitted). The government also asserts that the Court‘s repeated assurance that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful,” Heller, 554 U.S. at 626-27, 627 n.26, further suggests that felons as a class are not among “the people” that the Second Amendment protects.
The government‘s arguments are unavailing for several reasons. First, the argument that the Supreme Court has limited the Second Amendment right to “law-abiding, responsible citizens,” id. at 635, does not definitively place law breakers, or even felons, outside the protection of the Constitution. “Though the Supreme Court has suggested that law-abiding, responsible, and/or ordinary individuals are protected by the Second Amendment, it is far from clear whether the negative of those adjectives describe[s] individuals who stand outside the Second Amendment or instead those who may be disarmed consistent with that Amendment.” Antonyuk, 120 F.4th at 981-82 (emphasis in original) (internal quotation marks omitted). Further, the Supreme Court‘s assurance that longstanding prohibitions on the possession of firearms by felons are lawful does not suggest that felons are not part of “the people” protected by the Second Amendment. That assurance instead suggests that although felons, like other Americans, are presumptively protected by the Second Amendment, Congress nevertheless has the authority to disarm them. As Justice Barrett explained when she was a judge on the Seventh Circuit
[l]there are competing ways of approaching the constitutionality of gun dispossession laws. Some maintain that there are certain groups of people—for example, violent felons—who fall entirely outside the Second Amendment‘s scope. Others maintain that all people have the right to keep and bear arms but that history and tradition support Congress‘s power to strip certain groups of that right.
Kanter v. Barr, 919 F.3d 437, 451-52 (7th Cir. 2019) (Barrett, J., dissenting) (internal citation omitted). For the reasons that then-Judge Barrett articulated, we agree that the latter is the better way to approach the question. Id. at 451-53.
Moreover, a decision that Zherka does not belong to “the people” and therefore does not have Second Amendment rights would be at odds with Heller. The Court in that case defined “the people” broadly to include ”all Americans.” Heller, 554 U.S. at 581 (emphasis added). It elaborated that “the people,” as referred to throughout the Constitution, “unambiguously refers to all members of the political community, not an unspecified subset.” Id. at 580. The government does not assert that Zherka is not an American nor that he does not, as a felon who has сompleted his sentence, belong to the political community.
Finally, other constitutional provisions grant rights to “the people” including, for example, the right to “peaceably [] assemble, and to petition the Government for a redress of grievances,”
IV. Bruen Step Two: The Historical Tradition of Firearm Regulation in the United States Supports the Constitutionality of Section 922(g)(1).
Because the Second Amendment protects Zherka and his proposed conduct, we must now determine whether Congress can constitutionally disarm him. “[T]he Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Rahimi, 602 U.S. at 693. Zherka asserts, however, that Rahimi does not apply to him because unlike in that case, there has been no finding that he poses a credible threat to the physical safety of others and because his commission of a nonviolent financial felony is an insufficient proxy for his dangerousness. We agree that, while the analysis in Rahimi is relevant in several ways to the present case, it does not directly control it. The operative question, therefore, is whether the government has justified Section 922(g)(1)‘s application to Zherka by demonstrating that disarmament of nonviolent felons, as a class or
category of persons, is “consistent with the Nation‘s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. We conclude that it has.
After analyzing modern felon-in-possession laws, we turn to a discussion of the historical tradition of disarmament laws in this country. There are no twins of the modern felon-in-possession laws from the pre-Founding and Founding periods.12 That the relevant historical record lacks a historical twin is unsurprising, because before and during the Founding periods, felons were typically subject to execution. We discuss below what that fact suggests about the Founders’ perceptions of felons’ right to bear arms.
Shortly after the Founding, attitudes about appropriate punishment for felons began to change. Evidencе in the historical record from that time, including the debates over the ratification of the Constitution, reflects that some Founders believed that felons could be disarmed constitutionally. Although the ratification debates are not specific historical legislative analogues to modern felon in possession laws, we discuss them next because they inform the background tradition of constitutional gun regulation in this country.
Finally, we turn directly to the historical analogues, which establish that there is a tradition of regulating firearms in a manner that is analogous to Section 922(g)(1). Like Section 922(g)(1), laws from seventeenth century England, the American Colonies,13 and the early United States,14 establish that it has long been permissible to regulate firearms possession
A. Section 922(g)(1)
Although the Supreme Court characterized laws prohibiting felons from possessing firearms as “longstanding,” Heller, 554 U.S. at 626, they are, in fact, relatively recent creations, at least in relation to the period immediately surrounding the adoption of the Bill of Rights. Congress first prohibited felons from obtaining firearms in the
Those laws alone may not be sufficient tо establish a historical tradition of firearms regulation, but the modern concerns that they addressed, and continue to address, diminish the government‘s burden of drawing a tight historical analogy to
Although gun violence is hardly a new social concern,15 Congress passed both the
The problem of gun violence persists today at an unprecedented scale. In 2020, the number of gun-related deaths in the United States reached the highest level ever recorded up to that point, and the rate has remained high ever since.17 Over half of adults surveyed in the United States “report that either they, or a family member, have experienced a firearm-related incident.”18 And for children and adolescents in the United States, “firearm-related injury has been the leading cause of death [since 2020], . . . surpassing motor vehicle crashes, cancer, and drug overdose and poisoning.”19 That evolving public health crisis necessitates that we take the “more nuanced approach” that Bruen set forth for assessing historical analogies to
That approach is plainly illustrated in Rahimi. There, the Supreme Court upheld a further expansion of the firearms limitations contained in
As the Supreme Court acknowledged, no precise historical precedent for such a criminal prohibition existed. See Rahimi, 602 U.S. at 698, 700-01. The statute was a novel response to the problem of domestic violence, primarily against women and children, that had not been the direct object of governmental concern or of firearms regulation until the late 20th century. Nevertheless, the Court upheld that law, analogizing to pre-Bill of Rights laws that regulated gun possession by individuals and groups identified as dangerous to the community in general and/or to particular individuals. Id. at 693-700. We look to similar aspects of that tradition here.
B. Historical punishments for felonies
There are no historical twins for
In feudal England, the term “felony” referred to “a breach of the feudal obligations between lord and vassal,” the consequence of which was “forfeiture of goods and the escheat of the fief.” Will Tress, Unintended Collateral Consequences: Defining Felony in the Early Americаn Republic, 57 CLEV. ST. L. REV. 461, 463 (2009). As the feudal order passed, felony later came to mean a “serious crime punishable by death.”
Although the traditional common-law felonies included murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny,23 the category of offenses classified as felonies, and therefore punishable by death, included some nonviolent crimes. By the eighteenth century, the list of felonies had expanded to encompass some 160 crimes, including “counterfeiting currency, embezzlement, and desertion from the army.” Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019).24 Thus, while the list of felonies under the modern definition has grown to encompass all crimes punishable by more than a year in prison, the Founding-era concept was not limited to violent crimes. Rather, it included some “white collar” crimes25 - like Zherka‘s - and many other offenses that today are punished neither by death nor even extremely long prison sentences, and even some conduct, such as
We conclude from this history that the lack of historical laws prohibiting felons from possessing firearms is nоt dispositive of
We further note that several of our sister circuits have concluded that the Founders likely would have considered disarmament permissible as punishment for a felony conviction since they passed laws instituting the death penalty and forfeiture of a perpetrator‘s entire estate as punishments for both nonviolent and violent felonies. See United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024) (explaining that early legislatures “authorized punishments that subsumed disarmament-death or forfeiture of a perpetrator‘s entire estate-for non-violent offenses involving deceit and wrongful taking of property” and collecting examples); Hunt, 123 F.4th at 706 (same). The logic is that the greater punishment of death and estate forfeiture includes the lesser punishment of disarmament.
The Supreme Court, too, has еmbraced the greater-includes-the-lesser logic in the Second Amendment context when it concluded that “the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is [] permissible” because a historical analogue to that law imposed the greater punishment of imprisonment. Rahimi, 602 U.S. at 699. We are reluctant to place much weight on this argument, however. That felons could be executed when the Bill of Rights was enacted does not mean that anyone convicted of a felony today forfeits all civil rights.
Ultimately, the severe punishment of felons, including those who committed nonviolent crimes, in colonial times provides at least some reason to be skeptical that the drafters of the Second Amendment intended to prohibit Congress from disarming felons who were spared execution, but we do not consider it conclusive.
C. Debates over Ratification of the Constitution
Although the death penalty was the primary punishment for felonies during the Founding generation, various efforts at penal reform mobilized in states across the nation during the late 18th and early 19th centuries. Those efforts often resulted in the passage of laws that imposed imprisonment for сrimes that had formerly been capital crimes. Tress, Unintended Collateral Consequences, 57 CLEV. ST. L. REV. at 468-70. “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.”
Debates over the right to bear arms in state ratification conventions that occurred at around the same time as efforts at penal reform reflect the evolving attitudes about the treatment of felons. Those debates also support a historical tradition of firearms regulation through legislative disarmament and illustrate some Founders’ views of the scope of the Second Amendment right.
The right to bear arms proposals most often cited to support Congress‘s authority to disarm felons include: the New Hampshire Proposal, Samuel Adams‘s proposal to the Massachusetts convention, and the Pennsylvania Dissent of the Minority (“the Dissent“). See Kanter, 919 F.3d at 454-55 (Barrett, J., dissenting).30 We focus principally on the Dissent, which most clearly supports the view that some Founders believed that it was permissible for Congress to disarm convicted felons.31
The Dissent provides that “the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming
The Dissent was also “highly influential” in the debates that led to the Bill of Rights, Heller, 554 U.S. at 604, and was among the most “widely distributed of any essays published during ratification,” Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENT. 221, 227 (1999). It is therefore illustrative of what at least some Founders believed should be Congress‘s authority to disarm individuals who committed crimes and, as a result, informs the historical tradition of gun regulation in the United States. Nevertheless, the proposal that entered the Constitution as the Second Amendment did not contain the proviso permitting firearms restrictions on criminals, and so the Dissent too, while reflecting at least some ambivalence about the scope of the Amendment, is inconclusive.
D. English, American Colonial, and Early American Status-Based Disarmament Laws
The absence, for understandable reasons, of an eighteenth century “historical twin” for contemporary felon in possession laws has not prevented the Supreme Court, or this Court, from recognizing “what common sense suggests,” Rahimi, 602 U.S. at 692, 698, that persons who present a clear danger to others if permitted to possess firearms may be disarmed. See also Antonyuk, 120 F.4th at 983-84. It is presumably for that reason that, as noted above, the Supreme Court has consistently disavowed the notion that its rejection of state and federal laws prohibiting ownership and carrying of guns by law-abiding members of the community calls into question the general constitutionality of laws disarming felons. See Heller, 554 U.S. at 626-27, 627 n.26; McDonald, 561 U.S. at 786. Indeed, the Supreme Court and this Court have affirmed that dangerous people can be disarmed.33 As also noted
Zherka argues, however, that his case differs from those precedents. Antonyuk addressed a licensing regime in which the question was whether an applicant for a permit was, individually, a person whose conduct had shown him to be too dangerous to be trusted to use a firearm in a lawful and prudent manner. And while Rahimi, like this case, addressed a criminal statute prohibiting firearms possession by a category of persons, the category in question included only individuals whom a court had specifically found to be dangerous to one or more other persons. Most of the historical analogues that the Supreme Court identified in Rahimi similarly involved firearms restraints imposed on specific individuals. Id. at 695-700.
In contrast,
The answer is unequivocally yes. English, American colonial, and early American histories abound with examples of laws demonstrating that legislatures had broad authority to regulate firearms, including by disarming large classes of people based on their status alone. Religious minorities, political dissenters, Native Americans, and persons of color were among the disfavored groups that historical legislatures disarmed based on a perception that persons in those categories were inherently dangerous or non-law-abiding. Many of those laws are offensive to contemporary moral sensitivities, or might well be deemed unconstitutional today on First and Fourteenth Amendment grounds. They are, however, relevant to the Second Amendment historical analysis that Bruen requires we conduct. As we discuss in greater detail below, the status-based disarmament laws show that at the time of the adoption of the Second Amendment, legislatures had the authority to use status as a basis for disarmament. Moreover, those laws demonstrate that legislative disarmament did not always turn on a particularized finding of a propensity for violence. Instead, legislatures could disarm classes of people that they perceived as dangerous, without any judicial scrutiny of the empirical basis for that perception.
We start with English history. The 1689 English Bill of Rights, enacted by Parliament and considered the “predecessor to our Second Amendment,” Bruen, 597 U.S. at 44 (internal quotations marks omitted), guaranteed that “Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by law,” 1 W. & M., Sess. 2, ch. 2, § 7 (1689), in 3 ENG. STAT. AT LARGE 441 (London, Mark Baskett, Henry Woodfall, & William Strahan 1763) (emphasis added). On its face, that statute supports the proposition that Parliament could limit the right of Protestants to bear arms “by law”
Legislatures in the American colonies also disarmed Catholics, largely in response to the French and Indian War, which many perceived as a religious war between Protestants and Catholics.35 For example, in Virginia in 1756, Catholics and suspected Catholics could not possess arms unless they took an oath authorized by Parliament.36 Likewise in Pennsylvania, the legislature required colonial officials to take firearms from any “рapist or reputed papist.”37 The legislature of Maryland - a state founded by and for Catholics38 - did similarly.39
In another example of religious status-based disarmament, the Massachusetts Bay Colony, during the late 1630s, disarmed at least 58 individuals who were
accused of following the religious views preached by Anne Hutchinson. See Range v. Att‘y Gen. United States, 69 F.4th 96, 122–23 (3d Cir. 2023) (Krause, J., dissenting), cert. granted, judgment vacated sub nom Garland v. Range, --- U.S. ---, 144 S. Ct. 2706 (2024).40 Anne Hutchinson was a Boston preacher who challenged religious orthodoxy in the Massachusetts Bay Colony by advocating for “direct, personal relationships with the divine.” Id. Governor John Winthrop found those views threatening and accused Hutchinson and her followers of “being Antinomians—those who viewed their salvation as exempting them from the law.” Id. at 123. He banished Hutchinson and, to “embarrass” her followers, forced them to personally deliver their firearms to the authorities. Id., quoting James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebellion” Against the Clergy, 61 NEW. ENG. Q. 381, 391 (1988).
In addition to Catholics and members of minority Protestant sects, American legislatures during the Revolutionary War passed laws disarming individuals that they perceived as dangerous to the revolutionary cause. In an early example, the Connecticut Colony General Assembly passed a law in 1775 that disarmed any person convicted of “libel[ing] or defam[ing] any of the resolves of the Honorable Congress of the United Colonies, or the acts and proceedings of the General Assembly of this Colony.”41 In a letter to the Governor of Rhode Island, George Washington discussed that Connecticut law and remarked that “the other Colonies ought to adopt similar ones.”42 Shortly thereafter in March 1776, the Continental Congress passed a resolution recommending that assemblies in the colonies “cause all persons to be disarmed . . . who arе notoriously disaffected to the cause of America.”43 Several colonies heeded that recommendation and passed their own laws disarming the disloyal.44
Legislative bans on firearm possession in the American colonies were not limited to religious minorities and political dissenters. Laws in various colonies also prohibited Native Americans, people of African descent, and mixed-race people from owning firearms.45 Virginia, for example, passed a law in 1723 that prohibited Black people, mixed-race people, and Native Americans from “keep[ing], or carry[ing] any gun, powder, shot, or any club, or other weapon whatsoever, offensive or defensive.”46 The law allowed those classes of
in their county.47
Class-wide, race-based legislative disarmament continued in the United States after the American Revolution and often took the form of “complete bans on gun ownership by free blacks, slaves, Native Americans, and those of mixed race.”48 In Mississippi, for example, slaves were prohibited from keeping or carrying guns unless a justice of the peace granted a license upon application of the slaveholder.49 By 1852, however, Black people in Mississippi were prohibited from owning guns with no exceptions; the Mississippi legislature passed a law that prohibited magistrates in the state from issuing licenses to carry and use firearms to any Black person.50
These examples demonstrate that before, during, and shortly after the Founding, legislative bodies regulated firearms by prohibiting their possession by categories of persons perceived to be dangerous. And those regulations were accepted as lawful. We are not aware of challenges to those restrictions under state and federal constitutional protections of the right to bear arms.
Nor did that tradition disappear after the adoption of the Fourteenth Amendment guaranteed federal constitutional rights against state governments. In the latter half of the nineteenth century, various jurisdictions prohibited so-called “‘tramps’ — typically defined as males begging for charity outside of their home county” from possessing firearms.51 Those jurisdictions included New Hampshire and Vermont in 1878, Rhode Island, Ohio, and Massachusetts in 1880, Wisconsin
The “tramp” laws may be too distant from 1791 to inform us of the Founders’ beliefs about the scope of Second Amendment rights. They illustrate, however, that the tradition of legislative disarmament of classes of persons based on a perception of dangerousness has survived generations, even if the laws’ targets have shifted. Over time, the categories of persons perceived as dangerous evolved from political and religious dissenters or enslaved or formerly enslaved persons in the eighteenth and early nineteenth centuries, to “tramps” in the latter nineteenth century, to convicted criminals in the twentieth.54 But the tradition that legislatures could make such judgments, consistent with the Second Amendment “right to bear arms,” has persisted.
For most of our history, moreover, such prohibitions met with little or no constitutional resistance. As we have noted above, the tradition is so strongly rooted that even after the Supreme Court, early in this century, reinvigorated the Second Amendment and detached its meaning from its “well-regulated militia” prologue, the Court has consistently assured that its decisions did not threaten “longstanding prohibitions on the possession of firearms,” by felons, Heller, 554 U.S. at 626, or state licensing regimes that denied firearms to persons whose conduct showed that they were not “law-abiding, responsible citizens,” Bruen, 597 U.S. at 38 n.9 (internal quotation marks omitted).
There is some disagreement over why legislatures passed those laws. Some argue that legislatures disarmed disfavored groups out of fear that they were presently dangerous to the polity and would incite rebellion if armed; others argue that legislatures
It does not matter whether legislatures believed that members of the targeted groups had a specific propеnsity for violence or were, more broadly, unable to follow the law, because it is at least clear from the historical evidence and from the text of the disarmament laws that legislatures could disarm people as long as they belonged to an identity group that the legislature perceived as dangerous. The status-based disarmament statutes are “relevantly similar” historical analogues, Bruen, 597 U.S. at 29 (internal quotation marks omitted), to
We acknowledge that many of the historical precedents for class-based prohibitions on firearms are, to say the very least, offensive to contemporary morals and rooted in prejudiced stereotypes and racial, religious, or class bigotry. We cite them not as examples to be followed but rather, according to the analysis the Supreme Court has directed we undertake, as examples of a historical tradition of broad categorical restrictions on firearms possession. The tradition of status-based, categorical restrictions on firearms possession is indicative of an understanding, before, during, and after the period of the Founding and continuing to the present day, of a legislative power, consistent with the Second Amendment, to disarm categories of persons presumed to be dangerous.
We note, however, that while prior discrimination against religious, political, or racial minorities, or the law-abiding poor, would undoubtedly offend other constitutional provisions today, the prohibition of firearms possession by persons convicted
V. Zherka‘s As-Applied Challenge.
Despite the historical tradition of legislative disarmament, Zherka argues that
The Sixth Circuit recently embraced this view in dicta. See United States v. Williams, 113 F.4th 637, 659–63 (6th Cir. 2024). It pointed out that some of the categorical disarmament laws vested the discretion to make a finding that someone was too dangerous to possess firearms “in the officials on the ground,” not the legislature. Id. at 660. It further asserted that evеn when the “disarmament legislation itself created the exception regime, the fact remained that individuals had the opportunity to demonstrate that they weren‘t dangerous.” Id. From that background the Sixth Circuit concluded that “[t]he relevant principle from our tradition of firearms regulation is that, when the legislature disarms on a class-wide basis, individuals must have a reasonable opportunity to prove that they don‘t fit the class-wide generalization.” Id. at 661. Because no such opportunity exists under Section 922(g)(1), or any related law, the Sixth Circuit suggested that it would likely be unconstitutional as applied to a non-dangerous person convicted of only a nonviolent felony. Id. at 661-63.
Zherka‘s argument and the Sixth Circuit‘s analysis are flawed for several reasons. First, history does not support the proposition that status-based disarmament laws were permissible only if they also provided a mechanism for individuals to prove that they were not too dangerous to own a firearm. Although some of the historical laws created such an exemption structure,56 not all of them did. Some provided for exceptions unlinked to an individualized dangerousness finding, whereas others provided for no exceptions at all. The 1723 Virginia law prohibiting persons of color from possessing firearms, for example, allowed possession only if those persons were “house-keeper[s],” “listed in the militia,” or if they lived on a “frontier plantation” and obtained a license from a justice of the peace.57 Those exceptions were not based on an individualized assessment of dangerousness. Further, neither the 1759 Pennsylvania law disarming Catholics nor the 1852 Mississippi law disarming
Second, a convicted felon can be exempted from
Most importantly, Zherka‘s as-applied argument fails on a foundational level because the Supreme Court cautioned that the search for historical analogues is not a quest for a “historical twin.” Id. (internal quotation marks omitted). Instead, a “well-established and representative historical analogue” is sufficient. Bruen, 597 U.S. at 30 (emphasis omitted). Contrary to Zherka‘s argument and the Sixth Circuit‘s dicta, even the historical disarmament statutes that permitted members of the disfavored group to possess firearms under narrow circumstances not always including a generalized showing of non-dangerousness are relevantly similar to
At times the legislature has crafted exceptions, at others, it has not. As Zherka points out, under
upon which we could declare
* * *
Because legislatures at or near the Founding had the authority to pass laws disarming large classes of people based on status alone, we conclude that the Second Amendment does not bar Congress from passing laws that disarm convicted felons, regardless of whether the crime of conviction is nonviolent.
We acknowledge and are sympathetic to the fact that felon-in-possession laws have contributed to the mass incarceration crisis and its associated racial inequalities.61 It may well be that there are sound policy reasons for restoring
Because history reveals a tradition of categorical legislative bans on firearms possession by classes of people perceived as dangerous, a prohibition directed at persons convicted of serious crimes is among the easiest classifications to justify. First, it is consistent with the Supreme Court‘s assurance in Heller that “longstanding
Such a prohibition also aligns with the Supreme Court‘s insistence that “shall-issue” licensing regimes are constitutional because they are “designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens.” Bruen, 597 U.S. at 38 n.9 (internal quotation marks omitted). “Shall-issue” licensing regimes “contain only narrow, objective, and definite standards guiding licensing officials,” and often require “applicants to undergo a background check.” Id. (internal quotation marks omitted). That it is permissible for a state to decline an applicant a firearms license based on information discovered in a background check, which will often disclose prior criminal convictions, suggests that it is also permissible for the federal government to prohibit felons from possessing firearms.
Second, unlike the historical prohibitions of the eighteenth and nineteenth centuries, the ban on possession by convicted felons is based on the prohibited person‘s actual behavior, as admitted in a formal plea of guilt, entered with the guaranteed right to the advice of a lawyer or found by a unanimous jury beyond a reasonable doubt after a trial with vigorous procedural safeguards. Perhaps someday these prohibitions too will be looked back on with dismay. But unlike bans directed at minority racial, political, or religious groups, or at victims of economic misfortune, solely because of their group characteristics, the felon ban is based on actual past behavior.
That behavior, moreover, consists in the violation of basic terms of the social contract. That is true of all felony crimes, not just violent crimes. Zherka, for example, pleaded guilty to criminal conspiracy to make a false statement to a bank and to sign and file a false federal-income tax return, resulting in $8.5 million in fines, restitution, and forfeiture. That conduct is reasonably regarded as an indication that such a person lacks the “character of temperament necessary to be entrusted with a weapon.” Bruen, 597 U.S. at 13 n.1 (internal quotation marks removed).
Finally, any effort by the courts to craft a line that would separate some felons from others is fraught with peril. The idea that every felon, regardless of the crime of conviction, is entitled to some form of hearing as to whether that particular individual should be subject to a lifetime ban on firearms possession is inconsistent with the historical tradition permitting class-based legislative judgments.
Zherka also suggests that we should unilaterally narrow the category of offenses that Congress has subjected to the prohibition, arguing that “nonviolent” felons should be exempted from the category defined by Congress. Such a judicial exemption would usurp the legislative function. It would also embark on a line-drawing process that would raise endless questions with which the courts have had difficulty in other contexts.
Were we to decide that nonviolent felons are exempt from
To distinguish between violent and nonviolent crimes in the Second Amendment context, courts could employ the cаtegorical approach, which is used to determine whether an offense is a crime of violence in the context of the Armed Career Criminal Act, and draw lines based on the elements of the crime of conviction. See United States v. Evans, 924 F.3d 21, 25 (2d Cir. 2019). That approach has, however, proven largely “unworkable.” Mathis v. United States, 579 U.S. 500, 521 (2016) (Kennedy, J., concurring); see also Transcript of Oral Argument at 26, United States v. Stitt, 586 U.S. 27 (2018) (Alito, J.) (describing categorical approach jurisprudence as “one royal mess“). The categorical approach requires courts to resolve cases by “embark[ing] on an intellectual enterprise grounded in the facts of other cases not before them, or even imagined scenarios.” Evans, 924 F.3d at 31 (emphasis in original). Whatever the merits of that approach in the context of a statute that has been deemed to require it, it is difficult to see how such a rule could be rooted in the text of the Second Amendment. It is also difficult to imagine, moreover, why the courts should embark on an enterprise that has consumed years of judicial effort, culminating in a solemn argument in the Supreme Court about whether murder under New York‘s fairly typical definition was or was not categorically a “crime of violence.” (It is, but the decision divided the Court.). See Delligatti v. United States, 145 S. Ct. 797 (2025). That does not seem a promising way to proceed.63
On the other hand, were we to instead determine whether a felon qualifies as nonviolent by assessing that person‘s background, including the facts of particular offenses, we would have to face head-on the “practical difficulties and potential unfairness” that such a factual approach would present and which the categorical approach was developed to avoid. See Taylor v. United States, 495 U.S. 575, 601 (1990).64
Finally, we note that Congress has considered and rejected, after what it clearly regarded as a failed experiment, an approach that would have set up an administrative system of case-by-case, “as-applied”
For all these reasons, we join the majority of our sister circuits that have considered similar arguments, and we reject Zherka‘s contention that the prohibition on possession of firearms by convicted felons violates the Second Amendment as applied to “nonviolent” felons.
VI. Appellant Does Not Have a Procedural Right to More Process to Determine Whether He is Too Dangerous to Possess a Firearm.
What has been said above effectively disposes of Zherka‘s alternative contention that he has a due process right to a mechanism for relief from
CONCLUSION
For the reasons stated above, we affirm the judgement of the district court dismissing Zherka‘s complaint.