Bryan Range v. Attorney General United States ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-2835
______________
BRYAN DAVID RANGE,
Appellant
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA;
REGINA LOMBARDO, Acting Director, Bureau of Alcohol,
Tobacco, Firearms and Explosives
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5:20-CV-03488)
District Judge: Honorable Gene E.K. Pratter
______________
Argued before Merits Panel on September 19, 2022
Argued En Banc on February 15, 2023
______________
Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN,
GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO,
BIBAS, PORTER, MATEY, PHIPPS, FREEMAN,
MONTGOMERY-REEVES, ROTH,* and AMBRO,**
Circuit Judges.
(Filed: June 6, 2023)
William V. Bergstrom
Peter A. Patterson [Argued]
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Michael P. Gottlieb
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401
Counsel for the Appellant
Joseph G. S. Greenlee
Firearms Policy Coalition Action
5550 Painted Mirage Road
Suite 320
Las Vegas, NV 89149
*
Judge Roth is participating as a member of the en banc court
pursuant to 3d Cir. I.O.P. 9.6.4.
**
Judge Ambro assumed senior status on February 6, 2023 and
elected to continue participating as a member of the en banc
court pursuant to 3d Cir. I.O.P. 9.6.4.
2
Counsel for Amici Curiae FPC Action Foundation and
Firearms Policy Coalition, Inc. in Support of Appellant
Lisa B. Freeland
Renee Pietropaolo
Eleni Kousoulis
K. Anthony Thomas
Helen A. Marino
Heidi R. Freese
Matthew Campbell
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Amicus Curiae Federal Public &
Community Defender Organization of the Third
Circuit in Support of Appellant
Brian M. Boynton
Jacqueline C. Romero
Mark B. Stern
Michael S. Raab
Abby C. Wright
Kevin B. Soter [Argued]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for the Appellees
3
Janet Carter
Everytown Law
450 Lexington Avenue
P.O. Box 4148
New York, NY 10017
Counsel for Amicus Curiae Everytown for Gun Safety
in Support of Appellees
______________
OPINION OF THE COURT
______________
HARDIMAN, Circuit Judge, with whom CHAGARES, Chief
Judge, and JORDAN, GREENAWAY, JR., BIBAS,
PORTER, MATEY, PHIPPS, and FREEMAN, Circuit
Judges, join.
Bryan Range appeals the District Court’s summary
judgment rejecting his claim that the federal “felon-in-
possession” law—18 U.S.C. § 922(g)(1)—violates his Second
Amendment right to keep and bear arms. We agree with Range
that, despite his false statement conviction, he remains among
“the people” protected by the Second Amendment. And
because the Government did not carry its burden of showing
that our Nation’s history and tradition of firearm regulation
support disarming Range, we will reverse and remand.
4
I
A
The material facts are undisputed. In 1995, Range
pleaded guilty in the Court of Common Pleas of Lancaster
County to one count of making a false statement to obtain food
stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann.
§ 481(a). In those days, Range was earning between $9.00 and
$9.50 an hour as he and his wife struggled to raise three young
children on $300 per week. Range’s wife prepared an
application for food stamps that understated Range’s income,
which she and Range signed. Though he did not recall
reviewing the application, Range accepted full responsibility
for the misrepresentation.
Range was sentenced to three years’ probation, which
he completed without incident. He also paid $2,458 in
restitution, $288.29 in costs, and a $100 fine. Other than his
1995 conviction, Range’s criminal history is limited to minor
traffic and parking infractions and a summary offense for
fishing without a license.
When Range pleaded guilty in 1995, his conviction was
classified as a Pennsylvania misdemeanor punishable by up to
five years’ imprisonment. That conviction precludes Range
from possessing a firearm because federal law generally makes
it “unlawful for any person . . . who has been convicted in any
court, of a crime punishable by imprisonment for a term
exceeding one year” to “possess in or affecting commerce, any
firearm or ammunition.” 18 U.S.C. § 922(g)(1). Although state
misdemeanors are excluded from that prohibition if they are
“punishable by a term of imprisonment of two years or less,”
5
18 U.S.C. § 921(a)(20)(B), that safe harbor provided no refuge
for Range because he faced up to five years’ imprisonment.
In 1998, Range tried to buy a firearm but was rejected
by Pennsylvania’s instant background check system. Range’s
wife, thinking the rejection a mistake, gifted him a deer-
hunting rifle. Years later, Range tried to buy a firearm and was
rejected again. After researching the reason for the denial,
Range learned he was barred from buying a firearm because of
his 1995 conviction. Range then sold his deer-hunting rifle to
a firearms dealer.
B
Range sued in the United States District Court for the
Eastern District of Pennsylvania, seeking a declaration that
§ 922(g)(1) violates the Second Amendment as applied to him.
He also requested an injunction prohibiting the law’s
enforcement against him. Range asserts that but for
§ 922(g)(1), he would “for sure” purchase another deer-
hunting rifle and “maybe a shotgun” for self-defense at home.
App. 197–98. Range and the Government cross-moved for
summary judgment.
The District Court granted the Government’s motion.
Range v. Lombardo, 557 F. Supp. 3d 609, 611 (E.D. Pa. 2021).
Faithfully applying our then-controlling precedents, the Court
held that Range’s crime was “serious” enough to deprive him
of his Second Amendment rights. Id. In doing so, the Court
noted the two-step framework we established in United States
v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Range, 557 F.
Supp. 3d at 613. The Court began—and ended—its analysis at
the first step. It considered five factors to determine whether
Range’s conviction made him an “unvirtuous citizen” of the
6
kind historically barred from possessing a firearm: (1) whether
the conviction was classified as a misdemeanor or a felony; (2)
whether the elements of the offense involve violence; (3) the
sentence imposed; (4) whether there was a cross-jurisdictional
consensus as to the seriousness of the crime, Binderup v. Att’y
Gen., 836 F.3d 336, 351–52 (3d Cir. 2016) (en banc)
(plurality); and (5) the potential for physical harm to others
created by the offense, Holloway v. Att’y Gen., 948 F.3d 164,
173 (3d Cir. 2020). Range, 557 F. Supp. 3d at 613–14.
The Government conceded that four of the five factors
favored Range because he was convicted of a nonviolent, non-
dangerous misdemeanor and had not been incarcerated. Id. at
614. But the District Court held the “cross-jurisdictional
consensus” factor favored the Government because about 40
jurisdictions would have classified his crime as a felony. Id. at
614–15. Noting that our decisions in Holloway, 948 F.3d at
177, and Folajtar v. Att’y Gen., 980 F.3d 897, 900 (3d Cir.
2020), had rejected as-applied challenges to § 922(g)(1)
despite only one of the relevant factors weighing in the
Government’s favor, the District Court held that the cross-
jurisdictional consensus alone sufficed to disarm Range.
Range, 557 F. Supp. 3d at 615–16. Range timely appealed.
While Range’s appeal was pending, the Supreme Court
decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142
S. Ct. 2111 (2022). The parties then submitted supplemental
briefing on Bruen’s impact. A panel of this Court affirmed the
District Court’s summary judgment, holding that the
Government had met its burden to show that § 922(g)(1)
reflects the Nation’s historical tradition of firearm regulation
such that Range’s conviction “places him outside the class of
people traditionally entitled to Second Amendment rights.”
7
Range v. Att’y Gen., 53 F.4th 262, 266 (3d Cir. 2022) (per
curiam).
Range petitioned for rehearing en banc. We granted the
petition and vacated the panel opinion. Range v. Att’y Gen., 56
F.4th 992 (3d Cir. 2022).
II
The District Court had jurisdiction under 28 U.S.C.
§ 1331 because Range’s complaint raised a federal question:
whether the federal felon-in-possession law, 18 U.S.C.
§ 922(g)(1), violates the Second Amendment as applied to
Range. We have jurisdiction under 28 U.S.C. § 1291.
III
In District of Columbia v. Heller, the Supreme Court
held that the Second Amendment guarantees an individual
right to keep and bear arms unconnected with militia service.
554 U.S. 570, 583–84 (2008). In view of that right, the Court
held unconstitutional a District of Columbia law that banned
handguns and required other “firearms in the home be rendered
and kept inoperable at all times.” Id. at 630. It reached that
conclusion after scrutinizing the text of the Second
Amendment and deducing that it “codified a pre-existing
right.” Id. at 592. The Heller opinion did not apply
intermediate or strict scrutiny. In fact, it did not apply means-
end scrutiny at all. But in response to Justice Breyer’s dissent,
the Court noted in passing that the challenged law would be
unconstitutional “[u]nder any of the standards of scrutiny that
we have applied to enumerated constitutional rights.” Id. at
628–29.
8
Many courts around the country, including this one,
overread that passing comment to require a two-step approach
in Second Amendment cases, utilizing means-end scrutiny at
the second step. We did so for the first time in Marzzarella,
614 F.3d at 97, and we continued down that road for over a
decade. See, e.g., Drake v. Filko, 724 F.3d 426, 429, 434–40
(3d Cir. 2013); Binderup, 836 F.3d at 344–47, 353–56; Ass’n
of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d
106, 117 (3d Cir. 2018); Beers v. Att’y Gen., 927 F.3d 150,
154–55 (3d Cir. 2019), vacated sub nom. as moot, Beers v.
Barr, 140 S. Ct. 2758 (2020); Holloway, 948 F.3d at 169–172;
Folajtar, 980 F.3d at 901.
Bruen rejected the two-step approach as “one step too
many.” 142 S. Ct. at 2127. The Supreme Court declared:
“Heller and McDonald do not support applying means-end
scrutiny in the Second Amendment context.” Id. Instead, those
cases teach “that when the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 2126. And “[o]nly if a firearm
regulation is consistent with this Nation’s historical tradition
may a court conclude that the individual’s conduct falls outside
the Second Amendment’s ‘unqualified command.’” Id.
(quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10
(1961)).
Applying that standard, Bruen held “that the Second and
Fourteenth Amendments protect an individual’s right to carry
a handgun for self-defense outside the home.” Id. at 2122. But
the “where” question decided in Bruen is not at issue here.
Range’s appeal instead requires us to examine who is among
“the people” protected by the Second Amendment. U.S. Const.
amend. II; see Bruen, 142 S. Ct. at 2157 (Alito, J., concurring)
(“Our holding decides nothing about who may lawfully
9
possess a firearm . . . .”); see also 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 (2009) (distinguishing among “who,”
“what,” “where,” “when,” and “how” restrictions). Range
claims he is one of “the people” entitled to keep and bear arms
and that our Nation has no historical tradition of disarming
people like him. The Government responds that Range has not
been one of “the people” since 1995, when he pleaded guilty
in Pennsylvania state court to making a false statement on his
food stamp application, and that his disarmament is historically
supported.
IV
Having explained how Bruen abrogated our Second
Amendment jurisprudence, we now apply the Supreme Court’s
established method to the facts of Range’s case. Both sides
agree that we no longer conduct means-end scrutiny. And as
the panel wrote: “Bruen’s focus on history and tradition,”
means that “Binderup’s multifactored seriousness inquiry no
longer applies.” Range, 53 F.4th at 270 n.9.
After Bruen, we must first decide whether the text of the
Second Amendment applies to a person and his proposed
conduct. 142 S. Ct. at 2134–35. If it does, the government now
bears the burden of proof: it “must affirmatively prove that its
firearms regulation is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.”
Id. at 2127.
10
A
We begin with the threshold question: whether Range is
one of “the people” who have Second Amendment rights. The
Government contends that the Second Amendment does not
apply to Range at all because “[t]he right to bear arms has
historically extended to the political community of law-
abiding, responsible citizens.” Gov’t En Banc Br. at 2. So
Range’s 1995 conviction, the Government insists, removed
him from “the people” protected by the Second Amendment.
The Supreme Court referred to “law-abiding citizens”
in Heller. In response to Justice Stevens’s dissent, which relied
on United States v. Miller, 307 U.S. 174 (1939), the Court
reasoned that “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for
lawful purposes.” Heller, 554 U.S. at 625. In isolation, this
language seems to support the Government’s argument. But
Heller said more; it explained that “the people” as used
throughout the Constitution “unambiguously refers to all
members of the political community, not an unspecified
subset.” Id. at 580. So the Second Amendment right, Heller
said, presumptively “belongs to all Americans.” Id. at 581.
Range cites these statements to argue that “law-abiding
citizens” should not be read “as rejecting Heller’s
interpretation of ‘the people.’” Range Pet. for Reh’g at 8. We
agree with Range for four reasons.
First, the criminal histories of the plaintiffs in Heller,
McDonald, and Bruen were not at issue in those cases. So their
references to “law-abiding, responsible citizens” were dicta.
And while we heed that phrase, we are careful not to overread
it as we and other circuits did with Heller’s statement that the
District of Columbia firearm law would fail under any form of
11
heightened scrutiny. Second, other Constitutional provisions
reference “the people.”1 It mentions “the people” twice with
respect to voting for Congress,2 and “the people” are
recognized as having rights to assemble peaceably, to petition
the government for redress,3 and to be protected against
unreasonable searches and seizures.4 Unless the meaning of the
phrase “the people” varies from provision to provision—and
the Supreme Court in Heller suggested it does not—to
conclude that Range is not among “the people” for Second
Amendment purposes would exclude him from those rights as
1
See, e.g., U.S. Const. pmbl. (“We the People of the United
States . . . .” (emphasis added)); id. amend. IX (recognizing
rights “retained by the people”); id. amend. X (acknowledging
the powers reserved “to the people”).
2
U.S. Const. art. I, § 2 (“The House of Representatives shall
be composed of Members chosen every second Year by the
People of the several States . . . .” (emphasis added)); id.
amend. XVII (“The Senate of the United States shall be
composed of two Senators from each State, elected by the
people thereof . . . .” (emphasis added)).
3
U.S. Const. amend. I (“Congress shall make no law
respecting . . . the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
(emphasis added)).
4
U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”
(emphasis added)).
12
well. See 554 U.S. at 580. And we see no reason to adopt an
inconsistent reading of “the people.”
Third, as the plurality stated in Binderup: “That
individuals with Second Amendment rights may nonetheless
be denied possession of a firearm is hardly illogical.” 836 F.3d
at 344 (Ambro, J.). That statement tracks then-Judge Barrett’s
dissenting opinion in Kanter v. Barr, in which she persuasively
explained that “all people have the right to keep and bear
arms,” though the legislature may constitutionally “strip
certain groups of that right.” 919 F.3d 437, 452 (7th Cir. 2019).
We agree with that statement in Binderup and then-Judge
Barrett’s reasoning.
Fourth, the phrase “law-abiding, responsible citizens” is
as expansive as it is vague. Who are “law-abiding” citizens in
this context? Does it exclude those who have committed
summary offenses or petty misdemeanors, which typically
result in a ticket and a small fine? No. We are confident that
the Supreme Court’s references to “law-abiding, responsible
citizens” do not mean that every American who gets a traffic
ticket is no longer among “the people” protected by the Second
Amendment. Perhaps, then, the category refers only to those
who commit “real crimes” like felonies or felony-equivalents?
At English common law, felonies were so serious they were
punishable by estate forfeiture and even death. 4 William
Blackstone, Commentaries on the Laws of England 54 (1769).
But today, felonies include a wide swath of crimes, some of
13
which seem minor.5 And some misdemeanors seem serious.6
As the Supreme Court noted recently: “a felon is not always
more dangerous than a misdemeanant.” Lange v. California,
141 S. Ct. 2011, 2020 (2021) (cleaned up). As for the modifier
“responsible,” it serves only to undermine the Government’s
argument because it renders the category hopelessly vague. In
our Republic of over 330 million people, Americans have
widely divergent ideas about what is required for one to be
considered a “responsible” citizen.
At root, the Government’s claim that only “law-abiding,
responsible citizens” are protected by the Second Amendment
devolves authority to legislators to decide whom to exclude
from “the people.” We reject that approach because such
“extreme deference gives legislatures unreviewable power to
manipulate the Second Amendment by choosing a label.”
Folajtar, 980 F.3d at 912 (Bibas, J., dissenting). And that
deference would contravene Heller’s reasoning that “the
enshrinement of constitutional rights necessarily takes certain
policy choices off the table.” 554 U.S. at 636; see also Bruen,
5
See, e.g., 18 U.S.C. § 1464 (uttering “any obscene, indecent,
or profane language by means of radio communication”);
Mich. Comp. Laws Ann. § 445.574a(2)(d) (returning out-of-
state bottles or cans); 18 Pa. Cons. Stat. Ann. § 3929.1 (third
offense of library theft of more than $150); id. § 7613 (reading
another’s email without permission).
6
See, e.g., 18 Pa. Cons. Stat. Ann. § 2504 (involuntary
manslaughter); id. § 2707 (propulsion of missiles into an
occupied vehicle or onto a roadway); 11 Del. Code § 881
(bribery).
14
142 S. Ct. at 2131 (warning against “judicial deference to
legislative interest balancing”).
In sum, we reject the Government’s contention that only
“law-abiding, responsible citizens” are counted among “the
people” protected by the Second Amendment. Heller and its
progeny lead us to conclude that Bryan Range remains among
“the people” despite his 1995 false statement conviction.
Having determined that Range is one of “the people,”
we turn to the easy question: whether § 922(g)(1) regulates
Second Amendment conduct. It does. Range’s request—to
possess a rifle to hunt and a shotgun to defend himself at
home—tracks the constitutional right as defined by Heller. 554
U.S. at 582 (“[T]he Second Amendment extends, prima facie,
to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding.”). So “the
Second Amendment’s plain text covers [Range’s] conduct,”
and “the Constitution presumptively protects that conduct.”
Bruen, 142 S. Ct. at 2126.
B
Because Range and his proposed conduct are protected
by the Second Amendment, we now ask whether the
Government can strip him of his right to keep and bear arms.
To answer that question, we must determine whether the
Government has justified applying § 922(g)(1) to Range “by
demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Id. at 2130. We hold that the
Government has not carried its burden.
To preclude Range from possessing firearms, the
Government must show that § 922(g)(1), as applied to him, “is
15
part of the historical tradition that delimits the outer bounds of
the right to keep and bear arms.” Id. at 2127. Historical
tradition can be established by analogical reasoning, which
“requires only that the government identify a well-established
and representative historical analogue, not a historical twin.”
Id. at 2133. To be compatible with the Second Amendment,
regulations targeting longstanding problems must be
“distinctly similar” to a historical analogue. Id. at 2131. But
“modern regulations that were unimaginable at the founding”
need only be “relevantly similar” to one. Id. at 2132. Bruen
offers two metrics that make historical and modern firearms
regulations similar enough: “how and why the regulations
burden a law-abiding citizen’s right to armed self-defense.” Id.
at 2133.
In attempting to carry its burden, the Government relies
on the Supreme Court’s statement in Heller that “nothing in
our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons.” 554 U.S.
at 626. A plurality of the Court reiterated that point in
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). And
in his concurring opinion in Bruen, Justice Kavanaugh, joined
by the Chief Justice, wrote that felon-possession prohibitions
are “presumptively lawful” under Heller and McDonald. 142
S. Ct. at 2162 (quoting Heller, 554 U.S. at 626–27 & n.26).7
Section 922(g)(1) is a straightforward “prohibition[] on the
possession of firearms by felons.” Heller, 554 U.S. at 626. And
since 1961 “federal law has generally prohibited individuals
convicted of crimes punishable by more than one year of
7
The Heller, McDonald, and Bruen Courts cited no such
“longstanding prohibitions,” presumably because they did “not
undertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment.” Heller, 554 U.S. at 626.
16
imprisonment from possessing firearms.” Gov’t En Banc Br. at
1; see An Act To Strengthen The Federal Firearms Act, Pub.
L. No. 87-342, 75 Stat. 757 (1961). But the earliest version of
that statute, the Federal Firearms Act of 1938, applied only to
violent criminals. Pub. L. No. 75-785, §§ 1(6), 2(f), 52 Stat.
1250, 1250–51 (1938). As the First Circuit explained: “the
current federal felony firearm ban differs considerably from
the [original] version . . . . [T]he law initially covered those
convicted of a limited set of violent crimes such as murder,
rape, kidnapping, and burglary, but extended to both felons and
misdemeanants convicted of qualifying offenses.” United
States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011); see also
United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en
banc).
Even if the 1938 Act were “longstanding” enough to
warrant Heller’s assurance—a dubious proposition given the
Bruen Court’s emphasis on Founding- and Reconstruction-era
sources, 142 S. Ct. at 2136, 2150—Range would not have been
a prohibited person under that law. Whatever timeframe the
Supreme Court might establish in a future case, we are
confident that a law passed in 1961—some 170 years after the
Second Amendment’s ratification and nearly a century after
the Fourteenth Amendment’s ratification—falls well short of
“longstanding” for purposes of demarcating the scope of a
constitutional right. So the 1961 iteration of § 922(g)(1) does
not satisfy the Government’s burden.8
8
Nor are we convinced by the slightly older state and local
felon-in-possession laws cited by the amicus brief in support
of the Government filed by Everytown for Gun Safety. Amicus
cites a series of state statutes banning firearm possession by
17
The Government’s attempt to identify older historical
analogues also fails.9 The Government argues that “legislatures
traditionally used status-based restrictions” to disarm certain
groups of people. Gov’t En Banc Br. at 4 (quoting Range, 53
F.4th at 282). Apart from the fact that those restrictions based
felons passed in the 1920s. But this is still too late: “20th-
century evidence . . . does not provide insight into the meaning
of the Second Amendment when it contradicts earlier
evidence.” Bruen, 142 S. Ct. at 2154 n.28. And the 19th-
century local laws cited by Amicus are inapposite because they
involved prohibitions on concealed carry, a lesser restriction
than the total ban on firearm possession that § 922(g)(1)
imposes.
9
Range argues that because “there is no historical tradition of
disarming nonviolent felons,” dangerousness is the
“touchstone.” Range Pet. for Reh’g at 10. In support of that
view, Range quotes a concurring opinion of five judges in
Binderup that focused on dangerousness. 836 F.3d at 369(Hardiman, J., concurring in part). He also cites Judge Bibas’s
dissent in Folajtar, 980 F.3d at 913–20, and then-Judge
Barrett’s dissent in Kanter: “The historical evidence . . .
[shows] that the legislature may disarm those who have
demonstrated a proclivity for violence or whose possession of
guns would otherwise threaten the public safety.” 919 F.3d at
454. The Government replies that 10 of the 15 judges in
Binderup and the Court in Holloway and Folajtar rejected
dangerousness or violence as the touchstone. We need not
decide this dispute today because the Government did not carry
its burden to provide a historical analogue to permanently
disarm someone like Range, whether grounded in
dangerousness or not.
18
on race and religion now would be unconstitutional under the
First and Fourteenth Amendments, the Government does not
successfully analogize those groups to Range and his
individual circumstances. That Founding-era governments
disarmed groups they distrusted like Loyalists, Native
Americans, Quakers, Catholics, and Blacks does nothing to
prove that Range is part of a similar group today. And any such
analogy would be “far too broad[ ].” See Bruen, 142 S. Ct. at
2134 (noting that historical restrictions on firearms in
“sensitive places” do not empower legislatures to designate
any place “sensitive” and then ban firearms there).
The Government also points out that “founding-era
felons were exposed to far more severe consequences than
disarmament.” Gov’t En Banc Br. at 4. It is true that “founding-
era practice” was to punish some “felony offenses with death.”
Id. at 9. For example, the First Congress made forging or
counterfeiting a public security punishable by death. See An
Act for the Punishment of Certain Crimes Against the United
States, 1 Stat. 112, 115 (1790). States in the early Republic
likewise treated nonviolent crimes “such as forgery and horse
theft” as capital offenses. See Folajtar, 980 F.3d at
904 (citations omitted). Such severe treatment reflects the
founding generation’s judgment about the gravity of those
offenses and the need to expose offenders to the harshest of
punishments.
Yet the Government’s attempts to analogize those early
laws to Range’s situation fall short. That Founding-era
governments punished some nonviolent crimes with death does
not suggest that the particular (and distinct) punishment at
issue—lifetime disarmament—is rooted in our Nation’s
history and tradition. The greater does not necessarily include
the lesser: founding-era governments’ execution of some
19
individuals convicted of certain offenses does not mean the
State, then or now, could constitutionally strip a felon of his
right to possess arms if he was not executed. As one of our
dissenting colleagues notes, a felon could “repurchase arms”
after successfully completing his sentence and reintegrating
into society. Krause Dissent at 28–29. That aptly describes
Range’s situation. So the Government’s attempt to disarm
Range is not “relevantly similar” to earlier statutes allowing for
execution and forfeiture. See Bruen, 142 S. Ct. at 2132.
Founding-era laws often prescribed the forfeiture of the
weapon used to commit a firearms-related offense without
affecting the perpetrator’s right to keep and bear arms
generally. See, e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws
343–344 (“An Act for the Preservation of Deer, and other
Game, and to prevent trespassing with Guns”); Act of Apr. 20,
1745, ch. 3, N.C. Laws 69–70 (“An Act to prevent killing deer
at unseasonable times, and for putting a stop to many abuses
committed by white persons, under pretence of
hunting”). Range’s crime, however—making a false statement
on an application for food stamps—did not involve a firearm,
so there was no criminal instrument to forfeit. And even if there
were, government confiscation of the instruments of crime (or
a convicted criminal’s entire estate) differs from a status-based
lifetime ban on firearm possession. The Government has not
cited a single statute or case that precludes a convict who has
served his sentence from purchasing the same type of object
that he used to commit a crime. Nor has the Government cited
forfeiture cases in which the convict was prevented from
regaining his possessions, including firearms (except where
forfeiture preceded execution). That’s true whether the object
forfeited to the government was a firearm used to hunt out of
season, a car used to transport cocaine, or a mobile home used
20
as a methamphetamine lab. And of those three, only firearms
are mentioned in the Bill of Rights.10
Finally, the Government makes an argument from
authority. It points to a decision from a sister circuit court that
“look[ed] to tradition and history” in deciding that “those
convicted of felonies are not among those entitled to possess
arms.” Gov’t En Banc Br. at 4 (quoting Medina v. Whitaker,
913 F.3d 152, 157–61 (D.C. Cir. 2019)). The Government also
cites appellate decisions that “have categorically upheld felon-
possession prohibitions without relying on means-end
scrutiny.” Id. (citing United States v. Scroggins, 599 F.3d 433,
451 (5th Cir. 2010); United States v. Rozier, 598 F.3d 768, 771
(11th Cir. 2010) (per curiam); United States v. McCane, 573
F.3d 1037, 1047 (10th Cir. 2009)). And it cites the more than
80 district court decisions that have addressed § 922(g)(1) and
have ruled in favor of the Government. Id. at 5 (citing Brief for
Fed. Gov’t at 17 n.5, Vincent v. Garland, No. 21-4121 (10th
Cir. Jan. 17, 2023)).
As impressive as these authorities may seem at first blush,
they fail to persuade. First, the circuit court opinions were all
decided before Bruen. Second, the district courts are bound to
follow their circuits’ precedent. Third, the Government’s
10
Even arms used to commit crimes bordering on treason were
sometimes returned to the perpetrators during the Founding
era. After the Massachusetts militia quelled Shays’s Rebellion
in 1787, the state required the rebels and those who supported
them to “deliver up their arms.” 1 Private and Special Statutes
of the Commonwealth of Massachusetts from 1780–1805,
145–47 (1805). But those arms were to be returned after three
years upon satisfaction of certain conditions. Id. at 146–47.
21
contention that “Bruen does not meaningfully affect this
Court’s precedent,” Gov’t Supp. Br. at 9, is mistaken for the
reasons we explained in Section III, supra.
For the reasons stated, we hold that the Government has
not shown that the Nation’s historical tradition of firearms
regulation supports depriving Range of his Second
Amendment right to possess a firearm. See Bruen, 142 S. Ct.
at 2126.
* * *
Our decision today is a narrow one. Bryan Range
challenged the constitutionality of 18 U.S.C. § 922(g)(1) only
as applied to him given his violation of 62 Pa. Stat. Ann.
§ 481(a). Range remains one of “the people” protected by the
Second Amendment, and his eligibility to lawfully purchase a
rifle and a shotgun is protected by his right to keep and bear
arms. Because the Government has not shown that our
Republic has a longstanding history and tradition of depriving
people like Range of their firearms, § 922(g)(1) cannot
constitutionally strip him of his Second Amendment rights. We
will reverse the judgment of the District Court and remand so
the Court can enter a declaratory judgment in favor of Range,
enjoin enforcement of § 922(g)(1) against him, and conduct
any further proceedings consistent with this opinion.
22
PORTER, Circuit Judge, concurring.
I join the majority opinion in full. I write separately to
highlight one reason why there are no examples of founding,
antebellum, or Reconstruction-era federal laws like 18 U.S.C.
§ 922(g)(1) permanently disarming non-capital criminals.
Until well into the twentieth century, it was settled that
Congress lacked the power to abridge anyone’s right to keep
and bear arms. The right declared in the Second Amendment
was important, but cumulative. The people’s first line of
defense was the reservation of a power from the national
government.1 As James Wilson explained, “A bill of rights
annexed to a constitution is an enumeration of the powers
reserved.” James Wilson, Remarks in the Pennsylvania
Convention to Ratify the Constitution of the United States
(Nov. 28, 1787), reprinted in 1 Collected Works of James
Wilson 195 (Liberty Fund ed., 2007).
Even without the Second Amendment, the combination
of enumerated powers and the Ninth and Tenth Amendments
ensured that Congress could not permanently disarm anyone.
1
“The powers delegated by the proposed constitution to the
federal government, are few and defined. Those which are to
remain in the state governments, are numerous and indefinite.
The former will be exercised principally on external objects, as
war, peace, negotiation, and foreign commerce; with which last
the power of taxation will, for the most part, be connected. The
powers reserved to the several states will extend to all the
objects, which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people; and the internal
order, improvement, and prosperity of the state.” The
Federalist No. 45, at 241 (Madison) (Liberty Fund ed. 2001).
1
See Kurt T. Lash, The Lost History of the Ninth Amendment
72–93 (2009) (discussing how the Ninth and Tenth
Amendments work in tandem to serve federalist purposes). The
adoption of substantive protections in the Bill of Rights, such
as the right to keep and bear arms, was another layer of
protection reinforcing dual sovereignty.
A founding-era source is illustrative. In his influential
constitutional law treatise, William Rawle, a Federalist,
grounded the people’s right to keep and bear arms in
Congress’s lack of delegated power. He described the Second
Amendment as a backstop to prevent the pursuit of “inordinate
power.”
The prohibition is general. No clause in the
Constitution could by any rule of construction be
conceived to give congress a power to disarm the
people. Such a flagitious attempt could only be
made under some general pretence by a state
legislature. But if in any blind pursuit of
inordinate power, either should attempt it, this
amendment may be appealed to as a restraint on
both.
William Rawle, A View of the Constitution of the United States
of America 125–26 (2d ed. 1829).
At oral argument, counsel for the government
hypothesized that the paucity of early American criminal laws
resulting in disarmament may be explained by a lack of
political demand. That’s implausible. As Judge Krause’s
dissenting opinion shows, states were free to, and did, regulate
2
gun ownership and use, indicating political demand. The most
obvious explanation for a century and a half of congressional
inaction is not lack of political will but dual sovereignty and
respect for state police power.
A New Deal Era attempt at federal gun control is
revealing. In 1934, the Roosevelt Administration proposed the
National Firearms Act to address the gangster-style violence of
the Prohibition Era by reducing the sale of automatic weapons
and machine guns. Stymied by the federal government’s lack
of police power, Attorney General Homer Cummings urged
Congress to regulate guns indirectly through its enumerated
taxing power. Nicholas J. Johnson, The Power Side of the
Second Amendment Question: Limited, Enumerated Powers
and the Continuing Battle Over the Legitimacy of the
Individual Right to Arms, 70 Hastings L. J. 717, 750–58
(2019). Congress accepted that suggestion, avoiding the
acknowledged constitutional problem by imposing a tax—
rather than a direct prohibition—on the making and transfer of
particular firearms. See National Firearms Act, ch. 757, Pub.
L. No. 73–474, 48 Stat. 1236 (1934) (current version at 26
U.S.C. § 5801 et seq.).
The landscape changed in 1937, when the Supreme
Court adopted an expansive conception of the Commerce
Clause. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1 (1937). Newly empowered, Congress promptly enacted the
Federal Firearms Act of 1938. For the first time, that law
disarmed felons convicted of a “crime of violence,” which the
Act defined as “murder, manslaughter, rape, mayhem,
kidnapping, burglary, housebreaking; assault with intent to
kill, commit rape, or rob; assault with a dangerous weapon, or
assault with intent to commit any offense punishable by more
than one year.” Federal Firearms Act, Pub. L. No. 75–785, 52
3
Stat. 1250 (1938). In 1961, Congress extended the firearms
disqualification to all felons, violent or otherwise. See An Act
to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75Stat. 757 (1961); see also 18 U.S.C. § 922(g)(1).
As the majority opinion makes plain, these modern laws
have no longstanding analogue in our national history and
tradition of firearm regulation.2 Maj. Op. 15–22. That’s
unsurprising because before the New Deal Revolution,
Congress was powerless to regulate gun possession and use.
See United States v. Cruikshank, 92 U.S. 542, 553 (1875)
(Congress lacks power to infringe the right declared by the
Second Amendment); Presser v. People of State of Ill. 116 U.S.
252, 265 (1886) (same).
Lacking any relevant historical federal data, we may
look to state statutes and cases for contemporaneous clues
about the people’s right to keep and bear arms.3 By 1803, seven
of the seventeen states protected gun possession and use in
their own declarations of rights. Eugene Volokh, State
Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L.
& Pol. 191, 208–11 (2006). And by 1868, twenty-two of thirty-
seven states protected the right in their state constitutions. Id.The history and tradition of firearm regulation in those states
2
Bruen defines relevant history for these purposes as the period
between approximately 1791 and 1868. New York State Rifle
& Pistol Ass’n., Inc. v. Bruen, 597 U.S. ----, 142 S. Ct. 2111,
2137–50 (2022) (summarizing “antebellum” historical
evidence).
3
Pace Judge Shwartz, I do not understand the Supreme Court
to require that firearm regulations can be supported only “by a
federally enacted analog in existence at the founding[.]”
Shwartz Dissent at n.5.
4
may shed light on the scope of the federal constitutional right,
depending on how similar each state’s constitutional protection
was to the Second Amendment. See District of Columbia v.
Heller, 554 U.S. 570, 600–03 (2008) (founding-era state
constitutions corroborate individual-right interpretation of
Second Amendment). After all, state constitutions and their
respective bills of rights were “the immediate source from
which Madison derived what became the U.S. Bill of Rights.”
Donald S. Lutz, The State Constitutional Pedigree of the U.S.
Bill of Rights, 22 Publius 19, 29 (1992).
But precisely because the states—unlike the national
government—retained sweeping police powers and weren’t
originally constrained by the Bill of Rights, they were free to
regulate the possession and use of weapons in whatever ways
they thought appropriate (subject to state constitutional
restrictions that were not uniform). See Barron ex rel. Tiernan
v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Because of
that important difference, it’s unclear what many early state
laws prove about the contours of the Second Amendment right.
For example, Judge Krause’s dissent cites founding or
antebellum-era disarmament laws from Delaware, Maryland,
New Jersey, New York, and Virginia. Krause Dissent at 15-21,
26-28 & nn. 94-96, 98. But Maryland, New Jersey, and New
York have never enumerated a Second Amendment analogue.
Volokh, supra, at 205. Delaware and Virginia did not do so
until 1987 and 1971, respectively. Id. at 194, 204. So those
states’ laws provide little insight about the scope of the Second
Amendment right.
After McDonald v. City of Chicago, 561 U.S. 742(2010), state gun laws are subject to the Second Amendment
because it is incorporated through the Fourteenth Amendment.
5
The Supreme Court has said that “if a Bill of Rights protection
is incorporated, there is no daylight between the federal and
state conduct it prohibits or requires.” Timbs v. Indiana, 586
U.S. ----, 139 S. Ct. 682, 687 (2019); see also Bruen, 142 S.
Ct. at 2137. But unlike McDonald, Timbs, and Bruen, this case
doesn’t involve application of an incorporated right against a
state law; it’s a challenge to the constitutionality of a relatively
recent federal statute that has no historical analogue in
antebellum federal law.
Using state laws indiscriminately to determine the scope
of the constitutional right seems incongruous in this context. It
seeks effectively to reverse incorporate state law into federal
constitutional law. In Bolling v. Sharpe, 347 U.S. 497 (1954),
the Supreme Court held that Fourteenth Amendment equal-
protection principles applicable to the states also bind the
federal government through the Fifth Amendment’s Due
Process Clause because the alternative would be
“unthinkable.” Id. at 500; but see United States v. Vaello
Madero, 142 S. Ct. 1539, 1544–47 (2022) (Thomas, J.,
concurring) (criticizing Bolling’s rationale). Here, there is no
textual basis plausibly supporting reverse incorporation. And
Bolling’s rule appears to be cabined to equal-protection claims;
the Court has only invoked reverse incorporation to redress
invidious discrimination. Without an equal-protection or due-
process hook, using state law to define a federal constitutional
amendment that was fashioned to protect individual rights and
a reserved power poses a doctrinal conundrum.
A conception of the Second Amendment right that
retcons modern commerce power into early American state law
is anachronistic and flunks Bruen’s history-and-tradition test.
Setting the federal floor through a combination of antebellum
state police power and Congress’s post-New Deal commerce
6
authority, as the dissents propose, would underprotect the
constitutional right to keep and bear arms.
7
AMBRO, Circuit Judge, concurring, joined by
GREENAWAY, JR. and MONTGOMERY-REEVES, Circuit
Judges.
Bryan Range decades ago made a false statement to
obtain food stamps to feed his family. That untrue statement,
however, was a misdemeanor in violation of Pennsylvania law.
See 62 Pa. Stat. Ann. § 481(a). And his conviction barred him
from possessing a firearm per 18 U.S.C. § 922(g)(1).
I agree with the well-crafted majority opinion of Judge
Hardiman that Range is among “the people” protected by the
Second Amendment and that the law is unconstitutional as
applied to him. I write separately, however, to explain why the
Government’s failure to carry its burden in this case does not
spell doom for § 922(g)(1). It remains “presumptively lawful.”
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111, 2162 (2022) (Kavanaugh, J., concurring) (quoting
District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008)).
This is so because it fits within our Nation’s history and
tradition of disarming those persons who legislatures believed
would, if armed, pose a threat to the orderly functioning of
society. That Range does not conceivably pose such a threat
says nothing about those who do. And I join the majority
opinion with the understanding that it speaks only to his
situation, and not to those of murderers, thieves, sex offenders,
domestic abusers, and the like.
Section 922(g)(1) is the federal “felon-in-possession”
law. It makes it “unlawful for any person . . . who has been
convicted in any court . . . of a crime punishable by
imprisonment for a term exceeding one year” to possess
firearms or ammunition. 18 U.S.C. § 922(g)(1). Although
1
those convicted of state misdemeanors “punishable by a term
of imprisonment of two years or less” are excluded from the
prohibition, Range is subject to it because his crime carried a
maximum penalty of five years’ imprisonment even though he
received no prison sentence. 18 U.S.C. § 921(a)(20)(B).
Congress may disarm felons because, as Justice Scalia
explained in Heller, “[l]ike most rights, the right secured by the
Second Amendment is not unlimited.” 554 U.S. at 626. He
demonstrated this is so by listing “presumptively lawful”
regulations that the ruling should not “be taken to cast doubt
on.” Id. at 626–27 & n.26. That list included “longstanding
prohibitions on the possession of firearms by felons.” Id. at
626–27. Just two years later, in McDonald v. City of Chicago,
the Supreme Court incorporated the Second Amendment
against the states. 561 U.S. 742, 767–68 (2010). In doing so,
it assured the public that “incorporation does not imperil every
law regulating firearms.” Id. at 786. Thus, it stood by its
statement “in Heller that our holding did not cast doubt on such
longstanding regulatory measures as ‘prohibitions on the
possession of firearms by felons.’” Id. (quoting Heller, 554
U.S. at 626–27). See also United States v. Jackson, No. 22-
2870, --- F.4th ----, 2023 WL 3769242, at *4 (8th Cir. June 2,
2023) (observing the Supreme Court has provided assurances
that felon-in-possession laws are constitutional).
In United States v. Barton, we held that “Heller’s list of
‘presumptively lawful’ regulations is not dicta.” 633 F.3d 168,
171 (3d Cir. 2011). That aligned us with the Ninth and
Eleventh Circuits. Id. (citing United States v. Vogxay, 594 F.3d
1111, 1115 (9th Cir. 2010), and United States v. Rozier, 598
F.3d 768, 771 n.6 (11th Cir. 2010)). And every other circuit
2
court has looked to the Supreme Court’s treatment of
“presumptively lawful” prohibitions for guidance.1
New York State Rifle & Pistol Ass’n v. Bruen reaffirms
that felon-in-possession laws are presumed to be lawful. 142
S. Ct. 2111 (2022). Although that case had nothing to do with
those laws, three of the six Justices in the majority went out of
their way to signal that view. Justice Kavanaugh’s
concurrence, joined by Chief Justice Roberts, explained that,
“[p]roperly interpreted, the Second Amendment allows a
‘variety’ of gun regulations” before quoting the Heller excerpt
that casts prohibitions on the possession of firearms by felons
as presumptively lawful. Id. at 2162 (quoting Heller, 554 U.S.
at 626–27 & n.26). Justice Alito’s concurrence also explained
that the Court’s opinion has not “disturbed anything that we
said in Heller or McDonald about restrictions that may be
imposed on the possession or carrying of guns.” Id. at 2157
(citation omitted).
Of course, we are here for a reason. Bruen abrogated
the circuit courts’ use of means-end analysis and replaced it
with a history-driven test:
1
See United States v. Booker, 644 F.3d 12, 23–24 (1st
Cir. 2011); United States v. Jimenez, 895 F.3d 228, 233 (2d
Cir. 2018); United States v. Chester, 628 F.3d 673, 679–80 (4th
Cir. 2010); Hollis v. Lynch, 827 F.3d 436, 446–47 (5th Cir.
2016); Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678,
686–87 (6th Cir. 2016) (en banc); United States v. Skoien, 614
F.3d 638, 639–40 (7th Cir. 2010); United States v. Bena, 664
F.3d 1180, 1182–83 (8th Cir. 2011); Bonidy v. United States
Postal Serv., 790 F.3d 1121, 1124 (10th Cir. 2015); Heller v.
District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011).
3
[W]hen the Second Amendment’s plain text
covers an individual’s conduct, the Constitution
presumptively protects that conduct. To justify
its regulation, the government may not simply
posit that the regulation promotes an important
interest. Rather, the government must
demonstrate that the regulation is consistent with
this Nation’s historical tradition of firearm
regulation. Only if a firearm regulation is
consistent with this Nation’s historical tradition
may a court conclude that the individual’s
conduct falls outside the Second Amendment’s
“unqualified command.”
Id. at 2126. In the wake of Bruen, assessing a gun restriction
by balancing a government’s interest (safety of citizens) with
the burden imposed on an individual’s right to bear arms is out.
Instead, laws that burden Second Amendment rights must have
“a well-established and representative historical analogue, not
a historical twin.” Id. at 2133 (emphases in original). So we
must use “analogical reasoning” to determine whether
§ 922(g)(1) is “relevantly similar” to a law from a period of
history that sheds light on the Second Amendment’s meaning.
Id. at 2132.
Given that three Justices in Bruen’s majority opinion
reminded us that felon-in-possession laws remain
presumptively lawful, and the three dissenting Justices echoed
that view, id. at 2189 (Breyer, J., dissenting) (“Like Justice
Kavanaugh, I understand the Court’s opinion today to cast no
doubt on that aspect of Heller’s holding.”), a sound basis exists
for § 922(g)(1)’s constitutional application in a substantial
amount of cases. Any historical inquiry that reaches a contrary
4
result must be wrong in view of the answer the Supreme Court
has already supplied. See Jackson, 2023 WL 3769242, at *4.
We begin with a look to firearm regulation in the era of
the Second Amendment’s ratification. In England, non-
Anglican Protestants and Catholics were disarmed during
times of tumult. See Range v. Att’y Gen., 53 F.4th 262, 274–
76 (3d Cir. 2022), reh’g en banc granted, opinion vacated, 56
F.4th 992 (3d Cir. 2023). The American colonies also
disarmed religious dissenters. See id. at 276–77. And in the
Revolutionary War period, British loyalists and those who
refused to take loyalty oaths were disarmed by several
colonies. See id. at 277–79. See also Jackson, 2023 WL
3769242, at *5.
True, those laws are, by today’s standards,
unconstitutional on non-Second Amendment grounds. But at
our Founding they were measures driven by the fear of those
who, the political majority believed, would threaten the orderly
functioning of society if they were armed. From this
perspective, it makes sense that § 922(g)(1) is presumptively
lawful. Society is protecting itself by disarming, inter alia,
those who murder, rob, possess child porn, and leak classified
national security information. See id. at *7. Most felons have
broken laws deemed to underpin society’s orderly functioning,
be their crimes violent or not. Section 922(g)(1) thus disarms
them for the same reason we prohibited British loyalists from
being armed.
Of course, the relevant period may extend beyond the
Founding era. Indeed, the Supreme Court has not yet decided
whether individual rights are defined by their public
understanding at the time of the ratification of the Bill of Rights
5
in 1791 or the Fourteenth Amendment in 1868. See Bruen, 142
S. Ct. at 2162–63 (Barrett., J., concurring). If the latter, as the
Eleventh Circuit held in National Rifle Ass’n v. Bondi, 61 F.4th
1317, 1322–24 (11th Cir. 2023), then Founding-era regulations
remain instructive unless contradicted by something specific in
the Reconstruction-era. In any event, the more longstanding a
prohibition, the more likely it is to be constitutional.2
Certain regulations contemporaneous with the
Fourteenth Amendment’s ratification reaffirm the familiar
desire to keep arms from those perceived to threaten the orderly
functioning of society. A slew of states prohibited “tramps”
from carrying firearms or dangerous weapons.3 Kansas barred
those “not engaged in any legitimate business, any person
under the influence of intoxicating drink, and any person who
has ever borne arms against the government of the United
2
The Supreme Court did not specify how long it takes for
a law to become “longstanding.”
3
See, e.g., 1878 N.H. Laws 612, ch. 270 § 2; 1878 Vt.
Laws 30, ch. 14 § 3; 1879 R.I. Laws 110, ch. 806 § 3; 1880
Ohio Rev. St. 1654, ch. 8 § 6995; 1880 Mass. Laws 232,
ch. 257, § 4; 1987 Iowa Laws 1981, ch. 5 § 5135.
Tramps were typically defined along the lines of the
following Pennsylvania statute: “Any person going about from
place to place begging, asking or subsisting upon charity, and
for the purpose of acquiring money or living, and who shall
have no fixed place of residence, or lawful occupation in the
county or city in which he shall be arrested, shall be taken and
deemed to be a tramp.” 1 A DIGEST OF THE STATUTE LAW OF
THE STATE OF PENNSYLVANIA FROM THE YEAR 1700 TO 1894,
541 (Frank F. Brightly, 12th ed. 1894).
6
States” from carrying “a pistol, bowie-knife, dirk or other
deadly weapon.” 2 General Statutes of the State of Kansas 353
(1897) (passed in 1868). And Wisconsin prohibited “any
person in a state of intoxication to go armed with any pistol or
revolver.” 1883 Wis. Sess. Laws 290, ch. 329, § 3. Although
these regulations are not felon-in-possession laws, they echo
the impetus of the Founding-era laws—a desire to stop
firearms from being possessed or carried by those who cannot
be trusted with them.
But presumptions aren’t rules—they can be rebutted.
And so it may be that an individual subject to § 922(g)(1)
would not, if armed, plausibly pose a threat to the orderly
functioning of society. Here, the Government has not carried
its burden of proving that Range poses such a threat. Hence,
he may not be constitutionally disarmed on the record
presented.
Range committed a small-time offense. He did so with
a pen to receive food stamps for his family. There is nothing
that suggests he is a threat to society. He therefore stands apart
from most other individuals subject to § 922(g)(1) whom we
fear much like early Americans feared loyalists or
Reconstruction-era citizens feared armed tramps. I therefore
concur because there is no historical basis for disarming him.
I close with the observation that the Supreme Court will
have to square its history-driven test with its concurrent view
that felon gun restrictions are presumptively lawful. Scholars
have scrambled to find historical roots for that presumption.
See, e.g., Carlton F.W. Larson, Four Exceptions in Search of a
Theory: District of Columbia v. Heller and Judicial Ipse Dixit,
60 HASTINGS L.J. 1371, 1386 (2008) (originalist analysis
7
“yield[s] partial and incomplete answers” for why the
measures Heller cited as presumptively lawful enjoy that
status). Others conclude that a historical basis only exists for
disarming violent felons, see, e.g., Joseph G.S. Greenlee, The
Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 20 WYO. L. REV. 249 (2020), who
represent but a small fraction of the felon population, thus
leaving out, for example, those who leak national security
information, disrupt markets with their fraud, and possess child
porn. See Brian A. Reaves, U.S. Dep’t of Justice, Bureau of
Justice Statistics, State Violent Felons in Large Urban
Counties, at 1 (2006) (“From 1990 to 2002, 18% of felony
convictions in the 75 largest counties were for violent
offenses.”).
This opinion is one attempt to offer a historical
justification for § 922(g)(1), recognizing that history offers no
precise analogue. And if that proves unsatisfying to the Court,
it may do away with the presumption that disarming felons is
lawful. I hope it does not do so. Not just because arming those
who pose a threat to the orderly functioning of society will lead
to more deaths, but because it would be a dangerous precedent.
It is incongruous to believe history displaces means-ends
balancing for the Second Amendment only. The Court’s
approach here will affect our ability to pass any rights-
burdening law—whether the right be protected by the First,
Second, Fourth, or Sixth Amendment—that lacks a neat
historical basis. I trust it will fulfill its promise that Bruen
imposes no “regulatory straightjacket,” 142 S. Ct. at 2133, and
permit § 922(g)(1) to apply to those who threaten the orderly
functioning of civil society.
8
SHWARTZ, Circuit Judge, dissenting, joined by RESTREPO,
Circuit Judge.
Today, the Majority of our Court has decided that an
individual convicted of fraud cannot be barred from possessing
a firearm. While my colleagues state that their opinion is
narrow, the analytical framework they have applied to reach
their conclusion renders most, if not all, felon bans
unconstitutional. Because the Supreme Court has made clear
that such bans are presumptively lawful, and there is a
historical basis for such bans, I respectfully dissent.1
In New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
142 S. Ct. 2111 (2022), the Supreme Court set forth a history-
based framework for deciding whether a firearm regulation is
constitutional under the Second Amendment. Courts must now
examine whether the “regulation [being reviewed] is part of the
historical tradition that delimits the outer boundaries of the
right to keep and bear arms.” Id. at 2127. To make this
determination, a court must decide whether the challenger or
conduct at issue is protected by the Second Amendment and, if
so, whether the Government has presented sufficient historical
analogues to justify the restriction. See id. at 2129-30.
1
While I agree with Judge Krause’s excellent and
comprehensive review of the history as well as her incisive
critique of the Majority opinion, I write separately to
emphasize both that the history supports banning felons from
possessing firearms and that the Majority opinion is far from
narrow.
1
The Majority’s analysis is inconsistent with the
Supreme Court’s jurisprudence and has far-reaching
consequences. First, the Majority downplays the Supreme
Court’s consistent admonishment that felon bans are
“longstanding” and “presumptively lawful.” District of
Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008);
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). In
Heller and McDonald, the Supreme Court stated that felon
bans are consistent with our historical tradition. Heller, 554
U.S. at 626-27; McDonald, 561 U.S. at 786. More recently, a
majority of the Bruen Court reiterated that felon bans are
presumptively lawful, and notably did so in the very case that
explicitly requires courts to find historical support for every
firearm regulation. Bruen, 142 S. Ct. at 2157 (Alito, J.,
concurring) (explaining that Bruen did not “disturb” anything
the Court said in Heller or McDonald); id. at 2162 (Kavanaugh,
J., concurring, joined by Roberts, J.) (“Nothing in our opinion
should be taken to cast doubt on the longstanding prohibitions
on the possession of firearms by felons.” (quoting Heller, 554
U.S. at 626)); id. at 2189 (Breyer, J., dissenting, joined by
Sotomayor, J., & Kagan, J.) (“I understand the Court’s opinion
today to cast no doubt on . . . Heller’s holding [regarding
longstanding prohibitions.]”). These statements show that
felon bans have historical roots.2 See United States v. Jackson,
No. 22-2870, 2023 WL 3769242, --- F. 4th ----, at *4, *7 n.3
(8th Cir. June 2, 2023) (upholding the constitutionality of the
2
The Supreme Court also recognized that other firearm
regulations are “longstanding” and “presumptively lawful.”
Heller, 554 U.S. at 626-27. Thus, the Majority’s willingness
to devalue the Supreme Court’s observations may have
consequences on regulations beyond the status-based ban at
issue here.
2
federal felon ban as applied to a non-violent drug offender
based, in part, on the Supreme Court’s statements).
Second, the Majority incorrectly discounts the
importance of the Supreme Court’s emphasis on law-
abidingness as a limitation on the Second Amendment right.
While the Majority dismisses this language as “dicta,” Maj.
Op. at 11, the Bruen Court’s use of the phrase fourteen times
highlights the significance that this criterion played in its
decision, Bruen, 142 S. Ct. at 2122, 2125, 2131, 2133-34, 2135
n.8, 2138 n.9, 2150, 2156; see also Jackson, 2023 WL
3769242, at *6 (noting Bruen’s repeated statements about a
law-abider’s right to possess arms). Indeed, the Bruen court
approved of certain gun regulations that included criminal
background checks. Bruen, 142 S. Ct. at 2138 n. 9. While the
Majority says that the phrase “law abiding” is “expansive” and
“vague,” Maj. Op. at 13, there is no question that one who has
a felony or felony-equivalent conviction is not law abiding.
Thus, the Supreme Court’s jurisprudence tells us that the right
to bear arms is limited to law abiders, and that felon bans are
presumptively lawful.
Third, the Majority acknowledges but then disregards
important aspects of Bruen. The Bruen Court emphasized that
its test should not be a “regulatory straightjacket [sic]” and that
courts should look for a “historical analogue” to the challenged
regulation, not a “historical twin.” 142 S. Ct. at 2133. Despite
these instructions, the Majority demands a historical twin by
requiring the Government to identify a historical crime,
including its punishment, that mirrors Bryan Range’s
conviction. At the founding, the fraud-based crime of the type
Range committed was considered a capital offense, which
3
obviously carries with it the loss of all possessory rights.3
Folajtar v. Att’y Gen., 980 F.3d 897, 904-05 (3d Cir. 2020)
(collecting authorities). The Majority recognizes that this
severe punishment “reflects the founding generation’s
judgment about the gravity of those offenses” and the need for
harsh punishment. Maj. Op. at 19. It then, however, rejects
this historical data by stressing that today, a far less severe
punishment results, thereby rendering Range’s offense not
“relevantly similar” to founding-era fraud offenses. Id. at 19-
20 (quoting Bruen, 142 S. Ct. at 2132). The problem with this
analysis is that it focuses on present-day punishments to
determine whether a founding-era crime is a historical
analogue. Like it or not, Bruen mandates that we look at the
law as it existed at the founding, and so the fact that the law
has changed, or in this case, the punishment has changed, is
irrelevant. Put differently, Bruen requires us to don blinders
and look at only whether there is a historical analogue for the
firearm regulation at issue. When we do so, history
demonstrates that fraudsters could lose their life, and hence
their firearms rights.
The Majority also rejects the Government’s analogy to
now unconstitutional status-based bans on Native Americans,
Blacks, Catholics, Quakers, loyalists, and others because
Range is not “part of a similar group today.” Maj. Op. at 19.
Whether Range is a member of one of these groups is
3
Even some noncapital offenses resulted in life
imprisonment and the forfeiture of the offender’s entire estate,
which contemplates the loss of all property, including
firearms. Act of Apr. 18, 1786, 2 Laws of the State of New
York 253, 260–61 (1886); Act of Nov. 27, 1700, 2 Statutes at
Large of Pennsylvania 12 (Wm. Stanley Ray ed., 1904).
4
irrelevant. Rather, under Bruen, the relevant inquiry is why a
given regulation, such as a ban based on one’s status, was
enacted and how that regulation was implemented. Bruen, 142
S. Ct. at 2133. No matter how repugnant and unlawful these
bans are under contemporary standards, the founders
categorically disarmed the members of these groups because
the founders viewed them as disloyal to the sovereign. Range
v. Att’y Gen., 53 F.4th 262, 273-82 (3d Cir. 2022) (per curiam)
(collecting authorities), vacated by 56 F.4th 992 (3d Cir. 2023);
see also Jackson, 2023 WL 3769242, at *5 (observing that the
founding-era categorical prohibitions are relevant “in
determining the historical understanding of the right to keep
and bear arms”). The felon designation similarly serves as a
proxy for disloyalty and disrespect for the sovereign and its
laws. Such categorization is especially applicable here, where
Range’s felony involved stealing from the government, a crime
that directly undermines the sovereign. Therefore, the trust and
loyalty reasons underlying the status-based bans imposed at the
founding show that the bans are an appropriate historical
analogue for the present-day prohibition on felon possession.4
4
The Majority also gives no weight to various
founding-era statutory violations that led to disarmament, see,
e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343–344; Act of
Apr. 20, 1745, ch. 3, N.C. Laws 69–70; see also Range, 53
F.4th at 281 (collecting additional authorities), because it
contends that offenders were only disarmed of the firearm they
possessed at the time of the violation and not barred from
possessing firearms in the future, Maj. Op. at 19-20. From this,
the Majority asserts crime-based bans were not permanent. Id.
Whether true or not, the federal felon ban under 18 U.S.C.
§ 922(g) is not permanent. Congress specifically identified
5
Finally, the Majority’s approach will have far-reaching
consequences. Although the Majority states that its holding is
“narrow” because it is limited to Range’s individual
circumstances, Maj. Op. at 22, the only individual
circumstance the Majority identifies is that the penalty Range
faced differs from the penalty imposed at the founding. As
discussed above, that fact is irrelevant under Bruen. Thus, the
ruling is not cabined in any way and, in fact, rejects all
historical support for disarming any felon.5 As a result, the
Majority’s analytical framework leads to only one conclusion:
ways to avoid the ban, such as by securing an expungement,
pardon, or having one’s civil rights restored. 18 U.S.C.
§ 921(a)(20). Additionally, although it is currently unfunded,
Congress enacted 18 U.S.C. § 925(c), which allows the Bureau
of Alcohol, Tobacco, and Firearms to restore an individual’s
right to possess a firearm upon consideration of the
individual’s personal circumstances. See Logan v. United
States, 552 U.S. 23, 28 n.1 (2007).
5
The Majority also says that it need not decide whether
disarmament of violent criminals is supported by the historical
evidence, Maj. Op. at 18 n.9, but its view of the history, its
requirement of a historical twin, and its explanation that federal
felon prohibitions enacted in 1938 and 1961 are too recent to
be longstanding, necessarily mean that the Majority would
conclude that bans on violent felons cannot be justified.
Moreover, the framework outlined in Judge Porter’s
concurrence would mean that the federal government would be
prohibited from enacting any gun regulation. In fact, Judge
Porter’s requirement that a current federal regulation be
supported by a federally enacted analog in existence at the
founding would call into question the federal government’s
ability to regulate activities that did not then exist.
6
there will be no, or virtually no, felony or felony-equivalent
crime that will bar an individual from possessing a firearm.6
This is a broad ruling and, to me, is contrary to both the
sentiments of the Supreme Court and our history.
I therefore respectfully dissent.
6
Moreover, and significantly, the Majority provides no
way for a felon to know whether his crime of conviction
prevents him from possessing a firearm. This, however, is not
entirely the Majority’s fault. Bruen requires a review of our
nation’s history during a finite time period to determine
whether a felon’s particular crime of conviction
constitutionally permits disarmament—an inquiry that, under
the Majority’s test, will vary from crime to crime. Thus, the
concerns about due process and notice discussed in Judge
Fuentes’s dissent in Binderup v. Attorney General, 836 F.3d
336, 409-11 (3d Cir. 2016) (Fuentes, J., dissenting in part and
concurring in part), are even more pronounced after Bruen.
7
KRAUSE, Circuit Judge, dissenting.
As Americans, we hold dear the values of individual
liberty and freedom from tyranny that galvanized our Founders
and are enshrined in the Constitution. So it is not surprising
that we often look to history and tradition to inform our
constitutional interpretation.1 But as Alexis de Tocqueville
rightly observed of “the philosophical method of the
Americans,” we “accept tradition only as a means of
information, and existing facts only as a lesson to be used in .
. . doing better.”2 Thus, when we draw on parallels with the
past to assess what is permissible in the present, we typically
look to match history in principle, not with precision.
When it comes to permissible regulation of the right to
bear arms, it might make good sense to hew precisely to history
and tradition in a world where “arms” still meant muskets and
1
In the past few years, the Supreme Court has adopted a “his-
tory and tradition” test in a variety of constitutional contexts,
breaking from its own history where its precedent diverged
from that interpretive method. See, e.g., Dobbs v. Jackson
Women’s Health Org., 142 S. Ct. 2228 (2022) (interpreting the
Due Process Clause and overruling Roe v. Wade, 410 U.S. 113(1973)); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407
(2022) (interpreting the Free Exercise Clause and overruling
Lemon v. Kurtzman, 403 U.S. 602 (1971)); TransUnion LLC v.
Ramirez, 141 S. Ct. 2190 (2021) (explaining Article III stand-
ing); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067
(2019) (interpreting the Establishment Clause).
2
2 Alexis de Tocqueville, Democracy in America 1 (Francis
Bowen ed., Henry Reeve trans., 3d ed. 1863).
1
flintlock pistols,3 and where communities were still so small
and “close-knit” that “[e]veryone knew everyone else,” “word-
of-mouth spread quickly,” and the population “knew and
agreed on what acts were right and wrong, which ones were
permitted and forbidden.”4 But that is not the America of
today. In modern times, arms include assault rifles,5 high-
capacity magazines, and semi-automatic handguns; our
population of more than 330 million is mobile, diverse, and, as
to social mores, deeply divided; and, tragically, brutal gun
deaths and horrific mass shootings—exceeding 260 in just the
past five months—are a daily occurrence in our schools, our
3
See Joseph Blocher & Eric Ruben, Originalism-by-Analogy
and Second Amendment Adjudication, 133 Yale L.J. (forth-
coming 2023) (manuscript at 47), https://ssrn.com/ab-
stract=4408228 (“Americans in 1791 generally owned muzzle-
loading flintlocks, liable to misfire and incapable of firing mul-
tiple shots. Guns, thus, generally were not kept or carried
loaded in 1791[.]” (quotation omitted)); Akhil Reed Amar,
Second Thoughts, 65 Law & Contemp. Probs. 103, 107 (2002)
(“At the Founding . . . [a] person often had to get close to you
to kill you, and, in getting close, he typically rendered himself
vulnerable to counterattack. Reloading took time, and thus one
person could not ordinarily kill dozens in seconds.”).
4
Stephanos Bibas, The Machinery of Criminal Justice 2
(2012).
5
See Robert J. Spitzer, Gun Accessories and the Second
Amendment: Assault Weapons, Magazines, and Silencers, 83
Law & Contemp. Probs. 231, 240 (2020) (“[A]ssault weapons
play a disproportionately large role in three types of criminal
activity: mass shootings, police killings, and gang activity.”).
2
streets, and our places of worship.6 In today’s world, the
responsibilities that should accompany gun ownership are
flouted by those who lack respect for the law.
As debates rage on about the causes of this crisis and
the solutions, the people’s elected representatives bear the
heavy responsibility of enacting legislation that preserves the
right to armed self-defense while ensuring public safety.
Although they face evolving challenges in pursuing those twin
aims, striking that delicate balance has long been a core
function of the legislature in our system of separated powers,7
6
See Statement from President Joe Biden on the Shooting in
Allen, Texas, White House (May 7, 2023),
https://www.whitehouse.gov/briefing-room/statements-re-
leases/2023/05/07/statement-from-president-joe-biden-on-
the-shooting-in-allen-texas/; A Partial List of U.S. Mass Shoot-
ings in 2023, N.Y. Times (May 30, 2023), https://www.ny-
times.com/article/mass-shootings-2023.html; Gun Violence in
America, Everytown for Gun Safety (Feb. 13, 2023),
https://everytownresearch.org/report/gun-violence-in-amer-
ica/.
7
See Adam Winkler, Scrutinizing the Second Amendment, 105
Mich. L. Rev. 683, 715 (2007) (“Achievement of that balance
requires highly complex socio-economic calculations regard-
ing what kinds of weapons ought to be possessed by individu-
als and how to limit access to them by those deemed untrust-
worthy or dangerous. Such complicated multi-factor judg-
ments require trade-offs that courts are not institutionally
equipped to make. Legislatures, by contrast, are structured to
make precisely those kinds of determinations.”); see also Lon
L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L.
3
and legislatures’ authority to disarm those who cannot be
trusted to follow the laws has long been crucial to that
endeavor.
Section 922(g)(1) of the U.S. Code, Title 18, embodies
this delicate equilibrium and comports with traditional
principles that have guided centuries of legislative judgments
as to who can possess firearms. As Justice Alito has observed,
§ 922(g) “is no minor provision. It probably does more to
combat gun violence than any other federal law.”8 And as a
“longstanding”9 and widely accepted aspect of our national
gun culture,10 the federal felon-possession ban—carefully
crafted to respect the laws of the states—is the keystone of our
national background check system,11 and has repeatedly been
characterized by the Supreme Court as “presumptively
Rev. 353, 371 (1978) (noting the “relative incapacity of adju-
dication to solve ‘polycentric’ problems”).
8
Rehaif v. United States, 139 S. Ct. 2191, 2201 (2019) (Alito,
J., dissenting).
9
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
10
See Dru Stevenson, In Defense of Felon-in-Possession Laws,
43 Cardozo L. Rev. 1573, 1574 (2022) (explaining § 922(g)(1)
is “the centerpiece of gun laws in the United States” and “the
center of the gun-regulation universe”).
11
See id. at 1575 (“The felon prohibitor functions as the cor-
nerstone of the federal background check system for firearm
purchases[.]”).
4
lawful.”12 Where, as here, the legislature has made a
reasonable and considered judgment to disarm those who show
disrespect for the law, it is not the place of unelected judges to
substitute that judgment with their own.
Yet today’s majority brushes aside these realities and
the seismic effect of its ruling. It is telling that, although it
describes itself as limited “to Range’s situation,”13 today’s
opinion is not designated non-precedential as appropriate for a
unique individual case, but has precedential status, necessarily
reaching beyond the particular facts presented. It is also telling
that it tracks precisely the Fifth Circuit’s deeply disturbing
opinion in United States v. Rahimi, which, finding no precise
historical analogue, struck down as unconstitutional the ban on
gun possession by domestic abusers.14 And in the process, the
majority creates a circuit split with the Eighth Circuit’s recent
opinion in United States v. Jackson, which rejected the notion
of “felony-by-felony litigation” and recognized that “Congress
acted within the historical tradition when it enacted § 922(g)(1)
and the prohibition on possession of firearms by felons.”15
In short, for all its assurances to the contrary and its
lulling simplicity, the majority opinion commits our Court to a
12
E.g., Heller, 554 U.S. at 627 n.26.
13
Maj. Op. at 19.
14
61 F.4th 443 (5th Cir. 2023), petition for cert. filed (U.S.
Mar. 21, 2023) (No. 22-915).
15
No. 22-2870, 2023 WL 3769242, at *4, *7 (8th Cir. June 2,
2023).
5
framework so indefinite as to be void for vagueness and with
dire consequences for our case law and citizenry. I therefore
respectfully dissent.
I write here to clarify three points16: First, the historical
record demonstrates that, contrary to the majority opinion,
legislatures have historically possessed the authority to disarm
entire groups, like felons, whose conduct evinces disrespect for
the rule of law. Second, the doctrinal and practical
ramifications of the majority’s approach, which my colleagues
do not even acknowledge, let alone address, are profound and
pernicious. Third, in order to hold § 922(g)(1) inapplicable to
Range in a truly narrow opinion, my colleagues did not need to
throw out the baby with the bath water; instead, they could
have issued a declaratory judgment holding § 922(g)(1)
unconstitutional as applied to the petitioner currently before
the Court—in effect, prospectively restoring his firearm rights.
At least that approach would have been more faithful to history
and consistent with the rule of law than the majority’s
sweeping, retroactive pronouncement and the calamity it
portends.
I. The Historical Validity of § 922(g)(1)
We begin our historical inquiry with the benefit of more
than a decade of Supreme Court precedent that illuminates the
Court’s understanding of traditional firearm regulations. In
Bruen, the majority characterized the holders of Second
16
I also share the doctrinal and historical concerns raised in
Judge Shwartz’s cogent dissent, with which I agree in full.
6
Amendment rights as “law-abiding” citizens fourteen times.17
Delimiting the “unqualified command” of the Second Amend-
ment to “law-abiding” individuals was not novel.18 In holding
“the right of the people”19 protected by the Second Amendment
was an “individual right,”20 Justice Scalia’s seminal opinion in
Heller specified this meant “the right of law-abiding,
17
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111, 2122, 2125, 2131, 2133–34, 2135 n.8, 2138 & n.9, 2150,
2156 (2022).
18
Id. at 2130–31 (quotation omitted).
19
Heller, 554 U.S. at 579. In the first part of its analysis, the
majority defends its belief that convicted felons remain part of
“the people,” so their firearm possession is presumptively pro-
tected and the Government must prove its disarmament regu-
lation comports with historical tradition. Maj. Op. at 11–15.
Other jurists believe that historical tradition permits the dis-
armament of felons precisely because “the people” historically
meant “law-abiding, responsible citizens.” Bruen, 142 S. Ct.
at 2131 (quotation omitted). But that debate—unlike the test
for what constitutes an adequate “historical analogue,” id. at
2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d
Cir. 2021))—is largely academic. As then-Judge Barrett rec-
ognized, the “same body of evidence” can be used to illuminate
who is part of the people or “the scope of the legislature’s
power,” and either approach “yield[s] the same result.” Kanter
v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissent-
ing).
20
Heller, 554 U.S. at 592.
7
responsible citizens” to keep and bear arms,21 and therefore
characterized “prohibitions on the possession of firearms by
felons” as both “longstanding” and “presumptively lawful.”22
In Bruen, the Supreme Court clarified who qualifies as
a “law-abiding” citizen when it explained that, despite the in-
firmity of New York’s may-issue open-carry licensing regime,
“nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing re-
gimes . . . [,] which often require applicants to undergo a [crim-
inal] background check” and “are designed to ensure only that
those bearing arms in the jurisdiction are, in fact, ‘law-abiding,
responsible citizens.’”23
Thus, time and again, the Supreme Court has acknowl-
edged that the deep roots of felon-possession bans in American
history impart a presumption of lawfulness to 18 U.S.C.
§ 922(g)(1). Yet my colleagues persist in disputing it. They
21
Id. at 635.
22
Id. at 626–27 & n.26; see also McDonald v. City of Chicago,
561 U.S. 742, 786 (2010) (plurality) (“repeat[ing] those assur-
ances”); Bruen 142 S. Ct. at 2157 (Alito, J., concurring)
(same), 2162 (Kavanaugh, J., concurring) (same).
23
142 S. Ct. at 2138 n.9 (quoting Heller, 554 U.S. at 635).
Those background checks screen for both violent and non-vio-
lent offenses. See, e.g., Wash. Rev. Code Ann.
§ 9.41.070(1)(a); Colo. Rev. Stat. Ann. § 18-12-203(1)(c);
Kan. Stat. Ann. § 75-7c04(a)(2); Miss. Code. Ann. § 45-9-
101(2)(d); N.H. Rev. Stat. Ann. § 159:6(I)(a); N.C. Gen. Stat.
Ann. § 14-415.12(b)(1).
8
contend that, as a twentieth-century enactment, § 922(g)(1)
“falls well short of ‘longstanding’ for purposes of demarcating
the scope of a constitutional right.”24 But “longstanding” can
mean decades, not centuries,25 when a practice has become an
accepted part of “our Nation’s public traditions,”26 as the felon-
possession ban has,27 and, by virtue of that acceptance, it is en-
titled to a “strong presumption of constitutionality.”28 Moreo-
ver, Bruen observed that historical analogies must be more
flexible when a contemporary regulation implicates “unprece-
dented societal concerns or dramatic technological
changes[.]”29 Section 922(g)(1) is such a regulation, as the le-
thality of today’s weaponry, the ubiquity of gun violence, the
24
Maj. Op. at 17.
25
Am. Legion, 139 S. Ct. at 2082.
26
Freedom from Religion Found., Inc. v. County of Lehigh,
933 F.3d 275, 283 (3d Cir. 2019).
27
See Stevenson, supra note 10, at 1574.
28
Am. Legion, 139 S. Ct. at 2085.
29
142 S. Ct. at 2132 (quotation omitted). The Eighth Circuit
likewise observed that common sense and flexibility are indis-
pensable in assessing historical analogues because “the Con-
stitution can, and must, apply to circumstances beyond those
the Founders specifically anticipated.” Jackson, No. 22-2870,
2023 WL 3769242, at *6 (quoting Bruen, 142 S. Ct. at 2132).
9
size and anonymity of the population, and the extent of inter-
state travel were unknown at the Founding.30
As the Supreme Court has not performed an “exhaustive
historical analysis” of the felon-possession ban, much less “the
full scope of the Second Amendment,”31 we must conduct that
review to determine whether § 922(g)(1)’s application to fel-
ons, including Range, finds support in our national tradition.
That analysis confirms it does.
For purposes of this inquiry, “not all history is created
equal.”32 As the right to keep and bear arms was a “pre-exist-
ing right,” we must consider “English history dating from the
late 1600s, along with American colonial views leading up to
the founding.”33 Post-ratification practices from the late eight-
eenth and early nineteenth centuries are also highly relevant,
while later nineteenth century history is less informative.34 If
we heed the Supreme Court’s admonition to analogize to his-
torical regulations, but not to require a “historical twin,”35 these
30
Even aside from these modern-day developments, however,
the tradition of categorically disarming entire groups whom
legislatures did not trust to obey the law dates back to at least
the seventeenth century. See infra Section I.A.
31
Bruen, 142 S. Ct. at 2128 (quotation omitted).
32
Id. at 2136.
33
Id. at 2127 (citing Heller, 554 U.S. at 595).
34
See id. at 2136–37.
35
Id. at 2133.
10
sources demonstrate the validity of § 922(g)(1) as applied in
this case.
A. England’s Restoration and Glorious Revolution
During the late seventeenth century, the English
government repeatedly disarmed individuals whose conduct
indicated that they could not be trusted to abide by the
sovereign and its dictates.
Following the tumult of the English Civil War, the
restored Stuart monarchs disarmed nonconformist (i.e., non-
Anglican) Protestants.36 Of course, not all nonconformists
were dangerous; to the contrary, many belonged to pacificist
denominations like the Quakers.37 However, they refused to
participate in the Church of England, an institution headed by
the King as a matter of English law.38 And nonconformists
36
See Joyce Lee Malcolm, To Keep and Bear Arms: The Ori-
gins of an Anglo-American Right 45 (1994) (describing how
Charles II “totally disarmed . . . religious dissenters”).
37
See Joyce Lee Malcolm, The Right of the People to Keep and
Bear Arms: The Common Law Tradition, 10 Hastings Const.
L.Q. 285, 304 n.117 (1983) (“Persons judged to be suspicious
by the royal administration were those . . . who belonged to the
Protestant sects that refused to remain within the Church of
England. The Quakers were prominent sufferers.”).
38
See Church of England, BBC (June 30, 2011),
https://www.bbc.co.uk/religion/religions/christian-
ity/cofe/cofe_1.shtml (describing “the Act of Supremacy” en-
acted during the reign of Henry VIII).
11
often refused to take mandatory oaths acknowledging the
King’s sovereign authority over matters of religion.39 As a
result, Anglicans accused nonconformists of believing their
faith exempted them from obedience to the law.40
Protestants had their rights restored after the Glorious
Revolution of 1688 replaced the Catholic King James II with
William of Orange and Mary, James’s Protestant daughter.41
But even then, Parliament enacted the English Bill of Rights,
which declared: “Subjects which are Protestants, may have
Arms for their Defence suitable to their Conditions, and as
allowed by Law.”42 This “predecessor to our Second
Amendment”43 reveals that the legislature—Parliament—was
39
See Frederick B. Jonassen, “So Help Me?”: Religious Ex-
pression and Artifacts in the Oath of Office and the Courtroom
Oath, 12 Cardozo Pub. L., Pol’y & Ethics J. 303, 322 (2014)
(describing Charles II’s reinstation of the Oath of Supremacy);
Caroline Robbins, Selden’s Pills: State Oaths in England,
1558–1714, 35 Huntington Lib. Q. 303, 314–15 (1972) (dis-
cussing nonconformists’ refusal to take such oaths).
40
See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ v.
‘Antinomians’ in Restoration England, 67 J. Ecclesiastical
Hist. 325, 326, 334 (2016).
41
See Alice Ristroph, The Second Amendment in a Carceral
State, 116 Nw. U. L. Rev. 203, 228 (2021).
42
1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis added).
43
Bruen, 142 S. Ct. at 2141 (quoting Heller, 554 U.S. at 593).
12
understood to have the authority and discretion to decide who
was sufficiently law-abiding to keep and bear arms.44
In 1689, the pendulum of distrust swung the other way.
Parliament enacted a statute prohibiting Catholics who refused
to take an oath renouncing the tenets of their faith from owning
firearms, except as necessary for self-defense.45 As with
nonconformists, this prohibition was not based on the notion
that every single Catholic was dangerous. Rather, the
categorical argument English Protestants made against
Catholicism at the time was that Catholics’ faith put the
dictates of a “foreign power,” namely the Vatican, before
English law.46 Official Anglican doctrine—regularly preached
throughout England—warned that the Pope taught “that they
that are under him are free from all burdens and charges of the
commonwealth, and obedience toward their prince[.]”47
44
Cf. Lois G. Schwoerer, To Hold and Bear Arms: The English
Perspective, 76 Chi.-Kent L. Rev. 27, 47–48 (2000) (explain-
ing how the English Bill of Rights preserved Parliament’s au-
thority to limit who could bear arms).
45
An Act for the Better Securing the Government by Disarm-
ing Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15
(Eng. 1688); see Malcolm, supra note 36, at 123.
46
See Diego Lucci, John Locke on Atheism, Catholicism, An-
tinomianism, and Deism, 20 Etica & Politica/Ethics & Pol.
201, 228–29 (2018).
47
An Exhortation Concerning Good Order, and Obedience to
Rulers and Magistrates, in Sermons or Homilies Appointed to
13
Accordingly, the disarmament of Catholics in 1689 reflects
Protestant fears that Catholics could not be trusted to obey the
law.
That restriction could be lifted only prospectively and
on an individual basis. That is, Parliament permitted Catholics
who “repeated and subscribed” to the necessary oath before
“any two or more Justices of the Peace” to resume keeping
arms.48 Disavowal of religious tenets hardly demonstrated that
the swearing individual no longer had the capacity to commit
violence; rather, the oath was a gesture of allegiance to the
English government and an assurance of conformity to its laws.
The status-based disarmament of Catholics thus again evinces
the “historical understanding”49 that legislatures could
categorically disarm a group they viewed as unwilling to obey
the law.
B. Colonial America
The English notion that the government could disarm
those not considered law-abiding traveled to the American
colonies. Although some of the earliest firearm laws in
colonial America forbid Native Americans and Black persons
Be Read in Churches in the Time of Queen Elizabeth of Fa-
mous Memory 114, 125 (new ed., Gilbert & Rivington 1839).
48
1 W. & M., Sess. 1, ch. 15 (Eng. 1688).
49
Bruen, 142 S. Ct. at 2131.
14
from owning guns,50 the colonies also repeatedly disarmed
full-fledged members of the political community as it then
existed—i.e., free, Christian, white men—whom the
authorities believed could not be trusted to obey the law. Those
restrictions are telling because they were imposed at a time
when, before the advent of the English Bill of Rights, the
charters of Virginia and Massachusetts provided
unprecedented protections for colonists’ firearm rights.51
The Virginia Company carried out one of the earliest
recorded disarmaments in the American colonies in 1624. For
his “opprobrious” and “base and detracting speeches
concerning the Governor,” the Virginia Council ordered
Richard Barnes “disarmed” and “banished” from Jamestown.52
50
See Clayton E. Cramer, Armed America: The Remarkable
Story of How and Why Guns Became as American as Apple Pie
31, 43 (2006). Today, we emphatically reject these bigoted and
unconstitutional laws, as well as their premise that one’s race
or religion correlates with disrespect for the law. I cite them
here only to demonstrate the tradition of categorical, status-
based disarmaments. See Blocher & Ruben, supra note 3, at
63 (urging courts examining historical disarmament laws that
would violate the Constitution today to “ask[] why earlier gen-
erations regulated gun possession more generally, rather than
just who they disarmed”).
51
See Nicholas J. Johnson et al., Firearms Law and the Second
Amendment: Regulation, Rights, and Policy 174 (3d ed. 2022).
52
David Thomas Konig, “Dale’s Laws” and the Non-Common
Law Origins of Criminal Justice in Virginia, 26 Am. J. Legal
Hist. 354, 371 (1982).
15
By disrespecting the colonial authorities, Barnes demonstrated
that he could no longer be trusted as a law-abiding member of
the community and thus forfeited his ability to keep arms.
During the late 1630s, a Boston preacher named Anne
Hutchinson challenged the Massachusetts Bay government’s
authority over spiritual matters by advocating for direct,
personal relationships with the divine.53 Governor John
Winthrop accused Hutchinson and her followers of being
Antinomians—those who viewed their salvation as exempting
them from the law—and banished her.54 The colonial
government also disarmed at least fifty-eight of Hutchinson’s
supporters, not because those supporters had demonstrated a
propensity for violence, but rather “to embarrass the offenders”
who were forced to personally deliver their arms to the
authorities in an act of public submission.55 The Massachusetts
authorities therefore disarmed Hutchinson’s supporters to
shame those colonists because the authorities concluded their
conduct evinced a willingness to disobey the law.56 Again,
53
See Edmund S. Morgan, The Case Against Anne Hutchinson,
10 New Eng. Q. 635, 637–38, 644 (1937).
54
Id. at 648; Ann Fairfax Withington & Jack Schwartz, The
Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226
(1978).
55
James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebel-
lion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988).
56
Cf. John Felipe Acevedo, Dignity Takings in the Criminal
Law of Seventeenth-Century England and the Massachusetts
Bay Colony, 92 Chi.-Kent L. Rev. 743, 761 (2017) (describing
16
restoration of that right was available, but only prospectively,
for individuals who affirmatively sought relief: Hutchinson’s
followers who renounced her teachings and confessed their
sins to the authorities “were welcomed back into the
community and able to retain their arms,” as they had shown
that they could once again be trusted to abide by the law.57
Like the Stuart monarchs in England, the Anglican
colony of Virginia disarmed nonconformist Protestants in the
1640s due to their rejection of the King’s sovereign power over
religion. When a group of nonconformist Puritans from
Massachusetts resettled in southeastern Virginia,58 Virginia
Governor William Berkeley “acted quickly to silence the
Puritan[s].”59 His concern with any “[o]pposition to the
other shaming punishments used at the time, including scarlet
letters).
57
Joseph G.S. Greenlee, The Historical Justification for Pro-
hibiting Dangerous Persons from Possessing Arms, 20 Wyo.
L. Rev. 249, 263 (2020).
58
Charles Campbell, History of the Colony and Ancient Do-
minion of Virginia 211 (1860).
59
Kevin Butterfield, The Puritan Experiment in Virginia,
1607–1650, at 21 (June 1999) (M.A. thesis, College of William
and Mary) (on file with William and Mary Libraries).
17
king”60 led Governor Berkeley to disarm the Puritans before
banishing them from the colony.61
After the Glorious Revolution, the American colonies
also followed England in disarming their Catholic residents.
Just three years after designating Anglicanism as the colony’s
official religion,62 Governor Benjamin Fletcher of New York
disarmed Catholic colonists in 1696.63 The colonies redoubled
their disarmament of Catholics during the Seven Years’ War
of 1756–1763.64 Maryland, for example, though founded as a
haven for persecuted English Catholics,65 confiscated firearms
from its Catholic residents during the war.66 Notably, that
decision was not in response to violence; indeed, the colony’s
60
Id.61
Campbell, supra note 58, at 212.
62
See George J. Lankevich, New York City: A Short History 30
(2002).
63
See Shona Helen Johnston, Papists in a Protestant World:
The Catholic Anglo-Atlantic in the Seventeenth Century 219–
20 (May 11, 2011) (Ph.D. dissertation, Georgetown Univer-
sity) (on file with the Georgetown University Library).
64
See Greenlee, supra note 57, at 263.
65
See Michael W. McConnell, The Origins and Historical Un-
derstanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1424 (1990).
66
See Greenlee, supra note 57, at 263; Johnson et al., supra
note 51, at 197.
18
governor at the time, Horatio Sharpe, observed that “the
Papists behave themselves peaceably and as good subjects.”67
Neighboring Virginia likewise disarmed Catholics, but
allowed those who demonstrated their willingness to obey the
law by swearing an oath of loyalty to the King to retain their
weapons.68 The colonies therefore continued the English
practice of disarming Catholics based on their perceived
unwillingness to adhere to the King’s sovereign dictates.
Catholics were not the only group of colonists disarmed
during the Seven Years’ War. New Jersey confiscated firearms
from Moravians, a group of nonconformist Protestants from
modern-day Germany.69 Like the Quakers, Moravians were—
as they are today—committed pacifists who owned weapons
for hunting instead of fighting.70 Regardless, New Jersey
Governor Jonathan Belcher deemed their nonconformist views
sufficient evidence that they could not be trusted to obey royal
authority, so he ordered their disarmament.71
67
Elihu S. Riley, A History of the General Assembly of Mary-
land 224 (1912) (quoting a July 9, 1755 letter from Governor
Sharpe).
68
See Johnson et al., supra note 51, at 198.
69
See id.
70
See id.
71
See id. (discussing Governor Belcher’s view that the Mora-
vians were “Snakes in the Grass and Enemies of King
George”).
19
C. Revolutionary War
As the colonies became independent states, legislatures
continued to disarm individuals whose status indicated that
they could not be trusted to obey the law. John Locke—a
philosopher who profoundly influenced the American
revolutionaries72—argued that the replacement of individual
judgments of what behavior is acceptable with communal
norms is an essential characteristic of the social contract.73
Members of a social compact, he explained, therefore have a
civic obligation to comply with communal judgments
regarding proper behavior.74
Drawing on Locke, state legislatures conditioned their
citizens’ ability to keep arms on compliance with that civic
72
See Thad W. Tate, The Social Contract in America, 1774–
1787: Revolutionary Theory as a Conservative Instrument, 22
Wm. & Mary Q. 375, 376 (1965); see also Gundy v. United
States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting)
(observing “John Locke [was] one of the thinkers who most
influenced the framers”).
73
See John Locke, Two Treatises of Government § 163
(Thomas I. Cook ed., Hafner Press 1947) (reasoning “there
only is political society where every one of the members hath
quitted his natural power [to judge transgressions and] resigned
it up into the hands of the community”).
74
Locke grounded that duty in the consent of those within a
political society; however, he argued that mere presence in a
territory constitutes tacit consent to the laws of the reigning
sovereign. See id. § 119.
20
obligation, and several states enacted statutes disarming all
those who refused to recognize the sovereignty of the new
nation.75 In Connecticut, for instance, as tensions with England
rose, colonists denounced loyalists’ dereliction of their duty to
the civic community. The inhabitants of Coventry passed a
resolution in 1774 stating loyalists were “unworthy of that
friendship and esteem which constitutes the bond of social
happiness, and ought to be treated with contempt and total
neglect.”76 “Committees of Inspection” formed across
Connecticut and published the names and addresses of
suspected loyalists in local newspapers as “persons held up to
the public view as enemies to their country.”77 Concerns that
loyalists could not be trusted to uphold their civic duties as
members of a new state culminated in a 1775 statute that forbid
anyone who defamed resolutions of the Continental Congress
from keeping arms, voting, or serving as a public official.78
75
See Robert H. Churchill, Gun Regulation, the Police Power,
and the Right to Keep Arms in Early America: The Legal Con-
text of the Second Amendment, 25 Law & Hist. Rev. 139, 158
(2007).
76
G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev.
273, 280 (1899) (describing this resolution as “a fair sample of
most of the others passed at this time”).
77
Id. at 280–81.
78
See id. at 282.
21
Virginia disarmed those viewed as unwilling to abide by
the newly sovereign state’s legal norms.79 Virginia’s loyalty
oath statute disarmed “all free born male inhabitants of this
state, above the age of sixteen years, except imported servants
during the time of their service” who refused to swear their
“allegiance and fidelity” to the state.80 And conversely, it
allowed for prospective restoration of rights upon the taking of
that oath.81
Pennsylvania also disarmed entire groups whose status
suggested they could not be trusted to abide by the law. In
1777, the legislature enacted a statute requiring all white male
inhabitants above the age of eighteen to swear to “be faithful
and bear true allegiance to the commonwealth of Pennsylvania
as a free and independent state,”82 and providing that those who
failed to take the oath “shall be disarmed” by the local
79
An Act to Oblige the Free Male Inhabitants of this State
Above a Certain Age to Give Assurance of Allegiances to the
Same, and for Other Purposes ch. III (1777), 9 Statutes at
Large; Being a Collection of All the Laws of Virginia, from the
First Session of the Legislature in the Year 1619 281, 281 (Wil-
liam W. Hening ed., 1821).
80
Id.81
Id.82
Act of June 13, 1777, § 1 (1777), 9 The Statutes at Large of
Pennsylvania from 1652–1801 110, 111 (William Stanley Ray
ed., 1903).
22
authorities.83 That statute is especially illuminating because
Pennsylvania’s 1776 constitution protected the people’s right
to bear arms.84 Yet the disarmament law deprived sizable
numbers of pacifists of that right because oath-taking violated
the religious convictions of Quakers, Moravians, Mennonites,
and other groups.85 Those groups were not disarmed because
they were dangerous,86 but rather because their refusal to swear
allegiance demonstrated that they would not submit to
communal judgments embodied in law when it conflicted with
83
Id. § 3, at 112–13.
84
See Saul Cornell, “Don’t Know Much About History”: The
Current Crisis in Second Amendment Scholarship, 29 N. Ky.
L. Rev. 657, 670–71 (2002).
85
See Jim Wedeking, Quaker State: Pennsylvania’s Guide to
Reducing the Friction for Religious Outsiders Under the Es-
tablishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006); see
also Thomas C. McHugh, Moravian Opposition to the Penn-
sylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965)
(M.A. thesis, Lehigh University) (on file with the Lehigh Pre-
serve Institutional Repository).
86
See Heller, 554 U.S. at 590 (“Quakers opposed the use of
arms not just for militia service, but for any violent purpose
whatsoever . . . .”); Johnson et al., supra note 51, at 301 (noting
that states disarmed “Quakers and other pacifists; although
they were not fighters, they did own guns for hunting”).
23
personal conviction.87 Only those presumptively
untrustworthy individuals who came forward and established
that they were indeed law-abiding by swearing the loyalty oath
before state authorities had their firearm rights restored.88
D. Ratification Debates
The Founding generation reiterated the longstanding
principle that legislatures could disarm non-law-abiding
citizens during the deliberations over whether to ratify the
Constitution.
Debates between the Federalists and Anti-Federalists in
Pennsylvania “were among the most influential and widely
distributed of any essays published during ratification.”89
Those essays included “The Dissent of the Minority,” a
statement of the Anti-Federalist delegates’ views90 that proved
87
See Wedeking, supra note 85, at 51–52 (describing how
Quakers were “penal[ized] for allegiance to their religious
scruples over the new government”).
88
Act of June 13, 1777, § 3 (1777), 9 The Statutes at Large of
Pennsylvania from 1652–1801 110, 112 (William Stanley Ray
ed., 1903).
89
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).
90
See id. at 232–33.
24
“highly influential” for the Second Amendment.91 The Dissent
of the Minority proposed an amendment stating:
[T]he people have a right to bear
arms for the defence of themselves
and their own State or the United
States, or for the purpose of killing
game; and no law shall be passed
for disarming the people or any of
them unless for crimes committed,
or real danger of public injury from
individuals.92
While this amendment was not adopted, it is important
because, read in the context of traditional Anglo-American
firearm laws, it reflects the understanding of the Founding
generation—particularly among those who favored enshrining
91
Heller, 554 U.S. at 604; see also Amul R. Thapar & Joe Mas-
terman, Fidelity and Construction, 129 Yale L.J. 774, 797
(2020) (“Although one might question why we should listen to
the debate’s ‘losers,’ the Anti-Federalist Papers are relevant for
the same reason that the Federalist Papers are: to quote Justice
Scalia, ‘their writings, like those of other intelligent and in-
formed people of the time, display how the text of the Consti-
tution was originally understood.’ Plus, the Anti-Federalists
did not exactly ‘lose,’ in the same way in which a party who
settles a case but gets important concessions does not ‘lose’ the
case.” (quoting Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law 38 (Amy Gutmann ed., 1997))).
92
2 Bernard Schwartz, The Bill of Rights: A Documentary His-
tory 665 (1971) (emphasis added).
25
the right to armed self-defense in the Constitution—that
“crimes committed,” whether dangerous or not, justified
disarmament.
E. Criminal Punishment
The penalties meted out for a variety of offenses
between the seventeenth and nineteenth centuries also
demonstrate the widespread acceptance of legislatures’
authority to disarm felons.
At the Founding, a conviction for a serious crime
resulted in the permanent loss of the offender’s ability to keep
and bear arms. Those who committed grave felonies—both
violent and non-violent—were executed.93 A fortiori, the
ubiquity of the death penalty94 suggests that the Founding
generation would have had no objection to imposing on felons
the comparatively lenient penalty of disarmament. Indeed,
under English law, executed felons traditionally forfeited all
their firearms, as well as the rest of their estate, to the
government.95 That practice persisted in the American
colonies and the Early Republic.96 Even some non-capital
93
See Folajtar v. Att’y Gen., 980 F.3d 897, 904–05 (3d Cir.
2020).
94
See Baze v. Rees, 553 U.S. 35, 94 (2008) (Thomas, J., con-
curring).
95
See 4 William Blackstone, Commentaries *97–98.
96
See Respublica v. Doan, 1 U.S. 86, 91 (Pa. 1784) (“Doan,
besides the forfeiture of his estate, has forfeited his life.”). At
26
offenses triggered the permanent loss of an offender’s estate,
including any firearms. For example, a 1786 New York statute
punished those who counterfeited state bills of credit with life
imprisonment and the forfeiture of their entire estate.97 Again,
this drastic punishment indicates that the Founding generation
would not have considered the lesser punishment of
disarmament beyond a legislature’s authority.
Individuals who committed less serious crimes also lost
their firearms on a temporary, if not permanent, basis. Where
state legislatures stipulated that certain offenses were not
common law, forfeiture also resulted in “corruption of the
blood,” which prevented the felon’s heirs from inheriting or
transmitting the offender’s property. Richard E. Finneran &
Steven K. Luther, Criminal Forfeiture and the Sixth Amend-
ment: The Role of the Jury at Common Law, 35 Cardozo L.
Rev. 1, 27 (2013). In the Early Republic, several states limited
the loss of one’s property to the lifetime of the offender. See 2
James Kent, Commentaries on American Law *387 (1826); cf.
U.S. Const. art. III, § 3, cl. 2 (“The Congress shall have Power
to declare the Punishment of Treason, but no Attainder of Trea-
son shall work Corruption of Blood, or Forfeiture except dur-
ing the Life of the Person attainted.” (emphasis added)). Estate
forfeiture ultimately fell into disuse in the 1820s. See Com. v.
Pennock, 1817 WL 1789, at *1–2 (Pa. 1817); Will Tress, Un-
intended Collateral Consequences: Defining Felony in the
Early American Republic, 57 Clev. St. L. Rev. 461, 473 (2009).
97
Act of Apr. 18, 1786, 2 Laws of the State of New York 253,
260–61 (1886); see also Act of Nov. 27, 1700, 2 Statutes at
Large of Pennsylvania 12 (Wm. Stanley Ray ed., 1904) (pun-
ishing arson with life imprisonment and estate forfeiture).
27
punishable by death or life imprisonment, but rather resulted in
forfeiture,98 the offender was stripped of his then-existing
estate, including any firearms,99 and only upon successfully
98
See, e.g., Act of Apr. 5, 1790, § 2 (1790), 13 Statutes at Large
of Pennsylvania 511, 511–12 (Wm. Stanley Ray ed., 1908)
(robbery, burglary, sodomy, buggery); Act of Jan. 4, 1787, § 9
(1787), 24 Colonial Records of North Carolina 787, 788 (Wal-
ter Clark ed., 1905) (filing a false inventory of property in con-
nection with a procurement fraud investigation); An Act to Pre-
vent Routs, Riots, and Tumultuous Assemblies, § 4 (1786), 3
Compendium and Digest of the Laws of Massachusetts 1132,
1134 (Thomas B. Wait ed., 1810) (rioting); Act of Nov. 26,
1779, § 2 (1779), 10 Statutes at Large of Pennsylvania 12, 15–
16 (Wm. Stanley Ray ed., 1904) (counterfeiting); An Act for
the Regulation of the Markets in the City of Philadelphia, and
for Other Purposes Therein Mentioned, § 1 (1779), 9 Statutes
at Large of Pennsylvania 387, 388–89 (Wm. Stanley Ray ed.,
1904) (diverting food en route to Philadelphia or attempting to
raise the price of food at the city’s market three times); An Act
for Establishing an Office for the Purpose of Borrowing Money
for the Use of the Commonwealth, § 4 (1777), 9 Statutes at
Large; Being a Collection of All the Laws of Virginia, from the
First Session of the Legislature in the Year 1619, at 286, 287
(William W. Hening ed., 1821) (counterfeiting).
99
See, e.g., Act of Apr. 5, 1790, § 2 (1790), 13 Statutes at Large
of Pennsylvania 511, 511–12 (Wm. Stanley Ray ed., 1908)
(providing that the offender “shall forfeit to the commonwealth
all . . . goods and chattels whereof he or she was seized or pos-
sessed at the time the crime was committed and at any time
afterwards until conviction”).
28
serving of his sentence and reintegrating into society could he
presumably repurchase arms.
Finally, colonial and state legislatures punished minor
infractions with partial disarmaments by seizing firearms
involved in those offenses. For example, individuals who
hunted in certain prohibited areas had to forfeit any weapons
used in the course of that violation.100
* * *
As this survey reflects, and as the Supreme Court
observed in Heller, restrictions on the ability of felons to
possess firearms are indeed “longstanding[.]”101 Four
centuries of Anglo-American history demonstrate that
legislatures repeatedly exercised their discretion to impose
“status-based restrictions” disarming entire “categories of
persons,” who were presumed, based on past conduct,
100
See 1652 N.Y. Laws 138; Act of Apr. 20, ch. III (1745), 23
Acts of the North Carolina General Assembly 218, 219 (1805);
1771 N.J. Laws 19–20; An Act for the Protection and Security
of the Sheep and Other Stock on Tarpaulin Cove Island, Oth-
erwise Called Naushon Island, and on Nennemessett Island,
and Several Small Islands Contiguous, Situated in the County
of Dukes County § 2 (1790), 1 Private and Special Statutes of
the Commonwealth of Massachusetts 258, 259 (Manning &
Loring ed., 1805); 1832 Va. Acts 70; 1838 Md. Laws 291–92;
12 Del. Laws 365 (1863).
101
554 U.S. at 626.
29
unwilling to obey the law.102 Legislatures did so not because
the individuals in these groups were considered dangerous, but
because, based on their status, they were deemed non-law-
abiding subjects.103 The particular groups varied dramatically
over time, but the Founding generation understood that felons
were one such group.
The length of disarmaments varied too, but the
Founding generation recognized that legislatures—in their
discretion—could impose permanent, temporary, or indefinite
bans that lasted until the individual affirmatively sought relief
and made a showing of commitment to abide by the law. In
that case, the showing was not viewed as voiding the ban
retroactively, from its inception; rather, it operated
prospectively. Only after the individual had made the requisite
showing to a government official—and thus rebutted the
presumption that those with his status were not law-abiding—
was the individual’s right to possess firearms restored.
That is precisely how § 922(g)(1) functions, disarming
a group that has demonstrated disregard for the law104 and
allowing for restoration of the right to keep arms upon the
102
Jackson, No. 22-2870, 2023 WL 3769242, at *7.
103
Even if dangerousness were “the traditional sine qua non
for dispossession, then history demonstrates that there is no re-
quirement for an individualized determination of dangerous-
ness as to each person in a class of prohibited persons.” Id. at
*6.
104
See 18 U.S.C. § 922(g)(1).
30
requisite showing.105 Because that statutory scheme is
“consistent with this Nation’s historical tradition of firearm
regulation,”106 it comports with the Second Amendment.
II. Consequences of the Majority Opinion
Instead of respecting legislatures’ longstanding
authority to disarm groups who pose a threat to the rule of law,
the majority usurps that function and enacts its own policy.
And instead of heeding the Supreme Court’s instruction to take
§ 922(g)(1) as “longstanding” and “lawful,”107 the majority
nullifies it with an insurmountably rigid view of historical
analogues and an approach so standardless as to render it void
for vagueness in any application.
My colleagues have adopted and prescribed a
methodology by which courts must examine each historical
practice in isolation and reject it if it deviates in any respect
from the contemporary regulation: Confronted with
legislatures’ regular practice at the Founding of imposing the
far more severe penalty of death for even non-violent felonies,
the majority responds that the permanent loss of all rights is
not analogous to “the particular . . . punishment at issue—
lifetime disarmament[.]”108 To the longstanding practice of
forfeiture, which resulted in a permanent loss of firearms for
those felons convicted of capital offenses or sentenced to life
105
See 18 U.S.C. § 921(a)(20).
106
Bruen, 142 S. Ct. at 2126.
107
Heller, 554 U.S. at 626–27 & n.26.
108
Maj. Op. at 19.
31
imprisonment, the majority avers that forfeiture is entirely
distinguishable because other felons—those who committed
lesser offenses and thus served temporary rather than life
sentences—could repurchase arms upon their release.109 To
evidence that legislatures repeatedly disarmed entire groups of
people based on their distrusted status, the majority dismisses
those laws as inconsistent with contemporary understandings
of the First and Fourteenth Amendments.110 To the historical
reality that disarmament was not limited to those considered
violent and indeed extended to well-known pacifists like the
Quakers, the majority decrees without elaboration that any
analogy between § 922(g)(1) and those laws would be “far too
broad.”111 Finally, to the notion that Congress can
categorically disarm felons today, just as legislatures once
disarmed loyalists, Catholics, and other groups, the majority
falls back on its bottom line: any analogy will be unlike “Range
and his individual circumstances.”112
The Supreme Court in Bruen specifically admonished
the judiciary not to place “a regulatory straightjacket” on our
109
Id. at 19–20.
110
Id. at 18–19. Strikingly, several of my colleagues once as-
serted that these same laws justified disarming dangerous fel-
ons. See Binderup v. Att’y Gen., 836 F.3d 336, 368–69 (3d Cir.
2016) (en banc) (Hardiman, J., concurring in part); Folajtar,
980 F.3d at 914–15 (Bibas, J., dissenting). Today’s majority
provides no such assurance. Maj. Op. at 18 n.9.
111
Id. at 19 (quoting Bruen, 142 S. Ct. at 2134).
112
Id.
32
Government by requiring a “historical twin,” and explained
that “even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass
constitutional muster.”113 Yet, how else would one describe
the kind of analogue the majority demands—a Founding-era
statute that imposed the “particular”114 restriction for the same
length of time on the same group of people as a modern
law115—if not as a contemporary regulation’s “dead ringer”
and “historical twin”?116
While the majority opinion spurns this instruction from
Bruen and the Eighth Circuit’s conclusion that § 922(g)(1) is
constitutional as applied to any felon,117 it fully embraces the
Fifth Circuit’s reasoning in United States v. Rahimi.118 In that
case, the Fifth Circuit held that 18 U.S.C. § 922(g)(8), which
prohibits individuals subject to domestic abuse civil protective
orders from possessing firearms, violates the Second
Amendment.119 After rejecting the Supreme Court’s repeated
references to “law-abiding citizens” as devolving too much
113
Bruen, 142 S. Ct. at 2133.
114
Maj. Op. at 19.
115
See id.
116
Bruen, 142 S. Ct. at 2133.
117
Jackson, No. 22-2870, 2023 WL 3769242, at *4.
118
61 F.4th at 443.
119
Id. at 461.
33
discretion to the Government,120 the Fifth Circuit addressed
each of the Government’s historical analogues in isolation and,
paving the way for today’s majority, concluded every one was
distinguishable from § 922(g)(8): Statutes disarming
distrusted groups were inapt because legislatures believed
those groups threatened social and political order generally,
whereas domestic abusers threaten identifiable individuals;121
criminal forfeiture laws seizing arms from those who terrorized
the public were insufficient because domestic abuse protective
orders derive from civil proceedings.122 Like my colleagues,
the Rahimi Court concluded that any difference between a
historical law and contemporary regulation defeats an
otherwise-compelling analogy.
For all their quibbling, though, neither today’s majority
nor the Fifth Circuit explain why those differences suggest the
Founding generation would have considered § 922(g) beyond
the authority of a legislature. Furthermore, the methodology
the majority adopts from Rahimi creates a one-way ratchet:
My colleagues offer a detailed roadmap for rejecting historical
analogues yet refuse to state when, if ever, a historical practice
will justify a contemporary regulation.
By confining permissible firearm regulations to the pre-
cise measures employed at the Founding, the majority dis-
places a complex array of interlocking statutes that embody the
considered judgments of elected representatives at the federal
120
Id. at 453.
121
Id. at 457.
122
Id. at 458–59.
34
and state level. For example, in § 922(g)(1), Congress dis-
armed those who commit felonies or felony-equivalent misde-
meanors, but specifically excluded particular offenses it
deemed not sufficiently serious: “antitrust violations, unfair
trade practices, restraints of trade, or other similar offenses re-
lating to the regulation of business practices[.]”123 The major-
ity ignores that judgment and rewrites the statute with its own
expansive view of excludable offenses.
Section 922(g)(1) also disarms those who commit state
felonies out of respect for the historic power of state legisla-
tures to designate which offenses were considered sufficiently
serious by the people of that state to be punished as felonies.
Underlying the majority’s decision to exempt a felon-equiva-
lent “like Range” from § 922(g)(1), however, is an unspoken
premise antithetical to federalism and the separation of powers:
that federal judges know better than the people’s elected rep-
resentatives what offenses should qualify as serious to the peo-
ple of that state.
In addition to eviscerating the federal disarmament stat-
ute, the vague test adopted by the majority impugns the consti-
tutional application of every state statute that prohibits felons
from possessing guns. Those laws differ significantly across
the forty-eight states that restrict offenders’ firearm rights—
including which offenses trigger restrictions as well as their
duration—in keeping with each state’s local circumstances and
values.124 But, under the Supremacy Clause, the majority’s
123
18 U.S.C. § 921(a)(20)(A).
124
See generally Fifty-State Comparison: Loss and Restora-
tion of Civil/Firearms Rights, Restoration Rts. Project (Nov.
35
test, indeterminant as it is, necessarily supplants those laws no
less than it does § 922(g)(1).
Similarly, out of respect for federalism, Congress ex-
empted from the federal felon-possession ban any offender
whose conviction “has been expunged,” who “has been par-
doned,” or who has had his “civil rights restored.”125 In every
single state, the governor or pardon board is authorized to issue
a pardon, automatically restoring an offender’s firearm
rights.126 Thirty-six states also offer additional gun rights res-
toration mechanisms127—from automatic restoration after a set
term of years,128 to individualized judicial expungement pro-
ceedings.129 The divergent “state policy judgments” codified
2022), https://ccresourcecenter.org/state-restoration-pro-
files/chart-1-loss-and-restoration-of-civil-rights-and-firearms-
privileges-2/. None of these statutes appears to disarm individ-
uals who commit pretextual offenses. I note, however, that his-
tory suggests any pretextual disarmament law would violate
the Second Amendment. See 1 William Blackstone, Commen-
taries app. *300 (St. George Tucker ed., Birch & Small 1803)
(decrying how “[i]n England, the people have been disarmed,
generally, under the specious pretext of preserving the game”).
125
18 U.S.C. § 921(a)(20).
126
See Fifty-State Comparison: Loss and Restoration of
Civil/Firearms Rights, supra note 124.
127
See id.
128
See, e.g., Mich. Comp. Laws § 750.224f.
129
See, e.g., Tenn. Code Ann. § 39-17-1307(c)(1)(C).
36
in these statutes promote “the benefits of federalism: experi-
mentation, localism, and to some extent, decentralization”130—
so much so that the Supreme Court itself has acknowledged the
significance of Congress’s decision “to defer to a State’s dis-
pensation relieving an offender from disabling effects of a con-
viction.”131 Yet the majority annuls these mechanisms for the
restoration of gun rights by declaring that offenders like Range
can never be disarmed in the first place.
In place of legislatures’ measured judgments, the ma-
jority imposes a constitutional framework so standardless as to
thwart the lawful application of 18 U.S.C. § 922(g)(1) to any
offender. Congress enacted a bright-line rule distinguishing
offenders who can possess firearms from those who cannot.
By looking to the maximum punishment available for his of-
fense, a felon or state misdemeanant can easily determine if he
can possess a gun.132 The majority, however, replaces that
straightforward test with an opaque inquiry—whether the of-
fender is “like Range.”133
So what exactly is this new test? What specifically is it
about Range that exempts him—and going forward, those “like
[him]”—from § 922(g)(1)’s enforcement? Regrettably, that is
130
D. Bowie Duncan, Note, Dynamic Incorporation, Rights
Restoration, and 18 U.S.C. § 922(g)(1), 15 N.Y.U. J.L. & Lib-
erty 233, 274 (2021).
131
Logan v. United States, 552 U.S. 23, 37 (2007).
132
See 18 U.S.C. § 921(a)(20).
133
Maj. Op. at 22.
37
left to conjecture. My colleagues describe Range’s individual
circumstances in minute detail, appearing to attach signifi-
cance to such specifics as his hourly wage, his marital status,
the number of children he raised, his purported justification for
his fraud, the amount he stole, his culpability relative to his
wife who was not charged, his employment history, his largely
law-abiding life post-conviction, his explanations for his post-
conviction attempts to purchase a gun, the circumstances in
which his wife then purchased it for him, his intended use of
firearms to hunt deer in his spare time, and the timing of his
discovery that he was subject to § 922(g)(1).134 The particulars
are plentiful, but the majority never specifies, among these and
other descriptors of Range’s life pre- and post-conviction, the
respects in which an offender must be “like Range” to preclude
the application of § 922(g)(1).
If it is that Range’s offense was not “violent,” that
standard is unworkable and leads to perverse results. Federal
courts’ prior attempts to define “violent felony,” e.g., for pur-
poses of the Armed Career Criminal Act, yielded “repeated at-
tempts and repeated failures to craft a principled and objective
standard [for that term,] confirm[ing] its hopeless indetermi-
nacy.”135 Accordingly, the Supreme Court in Johnson v.
United States held that the “violent felony” provision “denie[d]
fair notice to defendants and invite[d] arbitrary enforcement by
judges,” thus violating due process.136 So does the “like
Range” test relegate us to the widely disparaged “categorical
134
Id. at 5–6.
135
Johnson v. United States, 576 U.S. 591, 598 (2015).
136
Id. at 597.
38
approach,” excluding all offenses that lack an element of the
“use of force”?137 Of what relevance is the conduct underlying
a given crime? Will courts be limited to considering Shepard
documents?138 What about crimes that lack an element of force
but are undeniably associated with violence, like drug traffick-
ing, human trafficking, drunk driving, and treason?139
If it is Range’s largely law-abiding life in the nearly 30
years since his conviction, that standard is even more con-
founding. My colleagues hold that Range’s disarmament was
invalid ab initio, meaning he could have prevailed on a Second
Amendment challenge to § 922(g)(1) had he raised one at the
time of his conviction (as will myriad felons after today’s de-
cision).140 Yet judges are not soothsayers. Post-conviction
conduct would be relevant if my colleagues were holding
137
United States v. Scott, 14 F.4th 190, 195 (3d Cir. 2021).
138
Those documents include the “charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant as-
sented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
139
As Range’s counsel candidly conceded at argument, under
a “violence” test, offenses like possession of child pornogra-
phy, money laundering, and drunk driving would not support
disarmament. Oral Arg. at 19:51–20:20, 24:00–24:26.
140
See Maj. Op. at 4 (“[Range] remains among ‘the people’
protected by the Second Amendment. And . . . the Government
did not carry its burden of showing that our Nation’s history
and tradition of firearm regulation support disarming
Range[.]”).
39
narrowly that Range’s firearm rights should be restored going
forward. But how can they possibly hold that he should not
have lost them upon conviction, based on post-conviction con-
duct?
This retrospective mode of analysis defies not just logic,
but also the Due Process Clause. Due process guarantees that
a “person of ordinary intelligence [must have] a reasonable op-
portunity to know what is prohibited, so he may act accord-
ingly.”141 Under the majority’s “like Range” test, however, of-
fenders cannot possibly know in advance of a court’s retroac-
tive declaration whether possessing a firearm post-conviction
is a constitutional entitlement or a federal felony. As inter-
preted today by the majority, § 922(g)(1) is rendered so vague
as to be facially unconstitutional.
On the enforcement side, the majority opinion makes
the statute’s mens rea impossible to establish. In Rehaif, the
Supreme Court held that to convict a defendant under § 922(g)
the Government must prove the defendant not only knew that
he possessed a firearm, but also knew that “he had the relevant
status when he possessed [the firearm.]”142 The Court then
clarified in Greer that a Rehaif error is not a basis for relief
under the plain-error standard unless the defendant can make a
sufficient argument on appeal that, but for the error, he could
have established he did not know he was a felon.143 That would
be a difficult argument to make, the Court observed, because
141
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
142
Rehaif, 139 S. Ct. at 2194.
143
Greer v. United States, 141 S. Ct. 2090, 2097 (2021).
40
“as common sense suggests, individuals who are convicted fel-
ons ordinarily know that they are convicted felons [for pur-
poses of § 922(g)(1).]”144
But, today, the majority displaces Rehaif’s clear and as-
certainable standard with an incoherent one: the Government
must prove the defendant knew he was not “like Range” when
he possessed firearms. And in lieu of Greer’s high threshold
for plain-error relief, the majority hands defendants a ready-
made argument for appeal: that they could not know at the time
they possessed a firearm—indeed, at any time before a court
made a “like Range” determination—whether their status was
subject to or exempt from § 922(g)(1). In short, the floodgates
the Supreme Court attempted to close on Rehaif errors in
Greer, my colleagues throw wide open: Today’s opinion will
strain the federal courts with a deluge of Rehaif challenges,145
compelling us to vacate countless § 922(g)(1) convictions on
144
Id. at 2095.
145
As explained above, courts will struggle to apply the major-
ity’s “like Range” test, which apparently extends to offenders’
post-conviction conduct. For example, how should a court rule
when a felon committed a murder thirty years ago, but has
since become deeply religious and a model prisoner? What
about someone with Range’s employment history and family
ties who has amassed a lengthy rap sheet of nonviolent misde-
meanors in the decades since his welfare fraud conviction? Or
someone otherwise like Range who knew he was subject to
§ 922(g)(1) as understood before today, yet deliberately en-
gaged his spouse as a straw purchaser to circumvent that stat-
ute? There is no reason for the federal judiciary to hurl itself
into this morass.
41
direct appeal and compelling our district court colleagues to
dismiss countless indictments.
Today’s decision will also undermine law enforcement
in three critical respects. First, it will cripple the FBI’s Na-
tional Instant Criminal Background Check System (NICS).
Currently, NICS includes over five million felony conviction
records,146 and that number continues to grow as additional
agencies contribute records to the NICS database.147 Prior fel-
ony convictions are by far the most common reason individuals
fail NICS background checks148—the very background checks
the Supreme Court endorsed in Bruen as ensuring individuals
bearing firearms are “law-abiding” citizens.149 Yet the major-
ity’s indeterminant and post-hoc test for which felons fall out-
side § 922(g)(1) and under what circumstances renders NICS
a dead letter.
If the police receive a tip that an ex-offender is toting an
assault rifle, it is no longer sufficient for probable cause to
simply confirm a prior felony conviction in NICS. How will
officers—or prosecutors for that matter—know whether that
felon is sufficiently “like Range” to justify his arrest as a felon-
146
Active Records in the NICS Indices, FBI (Jan. 31, 2023),
https://www.fbi.gov/file-repository/active_rec-
ords_in_the_nics-indices.pdf/view.
147
See Stevenson, supra note 10, at 1597.
148
Federal Denials, FBI (Jan. 31, 2023),
https://www.fbi.gov/file-repository/federal_denials.pdf/view.
149
See 142 S. Ct. at 2138 n.9.
42
in-possession, or whether they are instead bringing liability on
themselves for violating the felon’s civil rights? Must they re-
search the suspect’s post-conviction conduct? Should they
consider relevant conduct underlying the original violation?
How could they possibly determine that conduct in the case of
guilty pleas entered decades earlier?
Second, without a functional background check system,
how will federal firearms licensees (FFLs) comply with federal
law? FFLs who discover that a potential customer was con-
victed of a felony will have no way of knowing whether the
individual’s crime and post-conviction conduct are sufficiently
similar to Range’s to preclude the application of § 922(g)(1).150
Of particular concern, any assessments based on the majority
opinion’s “vague criteria are vulnerable to biases” along race,
class, gender, and other lines, resulting in disparities between
which groups retain gun rights and which do not.151
Third, until today, the prohibition on possessing a fire-
arm was a well-accepted “standard condition” of bail,
150
The penalty for incorrectly concluding a felon can purchase
a weapon without an exhaustive inspection of the felon’s
crime, conduct, and personal circumstances will be stiff: a sin-
gle error will result in the loss of the FFL’s license, barring the
FFL from the industry. See Simpson v. Att’y Gen., 913 F.3d
110, 114 (3d Cir. 2019) (holding a single violation in which
“the licensee knew of his legal obligation and purposefully dis-
regarded or was plainly indifferent to the requirements” is
grounds for revocation).
151
Ryan T. Sakoda, The Architecture of Discretion: Implica-
tions of the Structure of Sanctions for Racial Disparities,
43
supervised release, probation, and parole.152 But under my col-
leagues’ reasoning, the inclusion of that condition among state
or federal conditions of release now appears to be unconstitu-
tional as to any number of defendants, depending on whether
the judge at the bail or sentencing hearing views them as “like
Range.” That means disarmament on release will be anything
but “standard,” leaving scores of non-incarcerated criminal de-
fendants armed and subjecting not just the public, but also pro-
bation and parole officers to significant risk of harm.
In sum, the majority opinion casts aside the admonitions
that § 922(g)(1) is “longstanding,”153 “presumptively
lawful,”154 and “does more to combat gun violence than any
other federal law.”155 Instead, it abandons judicial restraint,
jettisons principles of federalism, unsettles countless
indictments and convictions, debilitates law enforcement, and
vitiates our background check system—all in the name of re-
Severity, and Net Widening, 117 Nw. U. L. Rev. 1213, 1227
(2023); cf. Joseph Blocher & Reva B. Siegel, Race and Guns,
Courts and Democracy, 135 Harv. L. Rev. F. 449, 449 (2022)
(arguing “racial justice concerns [with firearm laws] should be
addressed in democratic politics rather than in the federal
courts”).
152
U.S.S.G. § 5D1.3(c)(10).
153
Heller, 554 U.S. at 626.
154
Id. at 627 n.26.
155
Rehaif, 139 S. Ct. at 2201 (Alito, J., dissenting).
44
arming convicted felons. There is a narrower and less
hazardous path they could have chosen.
III. The Narrow Road Not Taken
My colleagues object that § 922(g)(1) can impose a
“permanent[],”156 “lifetime ban on firearm possession,”157 but
their retroactive holding—that the Government could not
constitutionally disarm Range when he was convicted—is far
broader than necessary to address their concern. Had they
heeded judicial restraint when granting Range relief, the
majority would have issued a purely prospective declaratory
judgment, restoring Range’s gun rights going forward. That
approach would have prevented the most grievous
consequences of the majority’s decision today. And should the
Supreme Court agree with my colleagues that the statutory
exclusions to § 922(g)(1) are constitutionally inadequate, that
approach also offers an administrable alternative worthy of
consideration. How could the majority have resolved this case
narrowly?
First, the only question the Court had to answer is
whether § 922(g)(1) is unconstitutional as applied to the
individual petitioning the Court today, accounting for his
present circumstances and potentially entitling him to bear
arms on a forward-looking basis. After all, Range did not
challenge the loss of his firearm rights at the time of his
conviction or at any time until he initiated the underlying suit
here, and all he now seeks is declaratory relief enabling him to
156
Maj. Op. at 18 n.9.
157
Id. at 20.
45
purchase and possess firearms in the future. The majority,
however, reaches out to answer a different question: whether
Range’s disarmament was ever consistent with the Second
Amendment.158 Needlessly invalidating Range’s initial
disarmament violates “the fundamental principle of judicial
restraint that courts should neither anticipate a question of
constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.”159
Second, providing prospective declaratory relief in this
case and similar as-applied challenges would resolve my
colleagues’ permanency concern. I appreciate that their
opposition to imposing a permanent ban or putting the onus on
the offender to seek relief finds some historical support for
certain lesser offenses. That is, the subset of felons who were
not sentenced to death or lifetime imprisonment only forfeited
their firearms temporarily and did not need to petition to regain
their firearm rights; they could simply repurchase arms after
completing their sentences. But times have changed. Gone are
the days of “close-knit” communities in which “everyone knew
everyone else,”160 and with the extreme mobility and relative
158
See Maj. Op. at 19 (asserting that the “punishment at is-
sue—lifetime disarmament—is [not] rooted in our Nation’s
history and tradition”); id. at 22 (framing the issue presented as
“the constitutionality of 18 U.S.C. § 922(g)(1) [] as applied to
[Range] given his violation of 62 Pa. Stat. Ann. § 481(a)”).
159
Wash. St. Grange v. Wash. St. Republican Party, 552 U.S.
442, 450 (2008) (quotations omitted).
160
Bibas, supra note 4, at 1.
46
anonymity of today’s society and the magnitude of harm that
can be inflicted by a single assault rifle,161 automatic
restoration of the right to bear arms upon completion of a
sentence would jeopardize public safety and the utility of
background checks. In any event, it is not the case that
legislatures historically imposed only bans that expired of their
own accord: They sometimes exercised their authority—just
as Congress did in § 922(g)(1)—to categorically disarm a
group presumed, based on status, to be non-law-abiding and to
place the burden on individuals in that group to petition for
relief and prove, through oaths or similar gestures of
allegiance, that they could be trusted to obey the law.162
Section 922(g)(1) is sufficiently analogous to that
model to meet the history-and-tradition test, as it already
allows felons to petition for relief by seeking an expungement,
pardon, or restoration of rights under state law. True, Congress
provided another avenue for relief in § 925(c) that it has not
161
See Terry Spencer, Florida School Shooter’s AR-15 Shown
to His Jurors, AP (July 25, 2022), https://apnews.com/arti-
cle/education-florida-fort-lauderdale-parkland-school-shoot-
ing-60791bdf38785f494400c43b90a97c39 (describing the
AR-15 rifle “used to murder 17 students and staff members . .
. at Parkland’s Marjory Stoneman Douglas High School”).
162
Historical examples include Parliament’s disarmament of
Catholics in 1689, Massachusetts’s disarmament of Anne
Hutchinson’s followers, Virginia’s disarmament of Catholics
during the Seven Years’ War, and the loyalty oath laws of
Pennsylvania and Virginia during the Revolution. See supra
notes 45–49, 53–57, 68, 82–88 and accompanying text.
47
funded in recent years,163 but § 921(a)(20) ensures the felon-
possession ban fits comfortably in the history of our nation’s
traditional firearm regulations. And if those avenues are
deemed inadequate, that purported infirmity would be cured by
a prospective declaratory judgment finding that a convicted
felon no longer poses a threat to the rule of law and therefore
can once again possess firearms.
Third, such declaratory judgment proceedings would
give effect to the purportedly rebuttable presumption to which
the Supreme Court referred in describing felon-possession
bans as “presumptively lawful,”164 as well as its admonition
that the Government bears the burden at the outset to
“demonstrate that the regulation is consistent with this
163
Section 925(c) permitted the Bureau of Alcohol, Tobacco,
Firearms and Explosives to conduct individualized reviews and
make an administrative determination that the applicant could
keep arms prospectively, but that mechanism proved so costly
for the country that it was disbanded and has not been funded
since 1992. See Logan, 552 U.S. at 28 n.1; S. Rep. No. 102-
353 (1992).
164
Heller, 554 U.S. at 626–27 & n.26; see McDonald, 561 U.S.
at 786; see also Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., con-
curring); id. at 2157 (Alito, J., concurring). Like the Eighth
Circuit, I believe the premise that the Supreme Court used the
phrase “presumptively lawful” to establish “a presumption of
constitutionality that could be rebutted on a case-by-case ba-
sis” is dubious. Jackson, No. 22-2870, 2023 WL 3769242, at
*7 n.2. Rather, the Court most likely “termed the conclusion
presumptive because the specific regulations were not at issue
in Heller.” Id.48
Nation’s historical tradition of firearm regulation[.]”165 That is
because once the Government establishes that an offender
committed a felony, it has necessarily satisfied its burden
consistent with the historical practice of disarming felons upon
conviction. The burden at that point, like the taking of oaths
or swearing of allegiance, would fall on the felon to rebut the
ban’s presumptive lawfulness by establishing he is presently a
“law-abiding, responsible” citizen.166
Fourth, limiting relief in as-applied § 922(g)(1) chal-
lenges to prospective declaratory judgments would eliminate
the intractable due process problems with the majority’s ap-
proach. Any felon who possessed a firearm without first se-
curing a favorable declaratory judgment would remain subject
to prosecution pursuant to § 922(g)(1), and those granted relief
would have their rights restored prospectively. In contrast to
the “like Range” test, that clear rule would provide felons with
constitutionally adequate notice as to whether and when they
regained their right to bear arms and thus would allow
§ 922(g)(1) to withstand void-for-vagueness challenges. Pro-
spective declaratory judgments likewise would avoid opening
the floodgates to mens rea challenges to § 922(g)(1)
165
Bruen, 142 S. Ct. at 2126.
166
Id. at 2131. This approach would not result in repetitive
actions because a felon who brings an unsuccessful declaratory
judgment suit must provide “newly discovered evidence that,
with reasonable diligence, could not have been discovered” to
prevail in a subsequent as-applied challenge to § 922(g)(1).
Fed. R. Civ. P. 60(b)(2).
49
prosecutions, and the high threshold Greer set for defendants
to overturn § 922(g)(1) convictions would endure.167
Fifth, this use of declaratory judgments would respect
both the separation of powers and federalism. Other than for
felons who received favorable declaratory judgments, Con-
gress’s decision to disarm those who commit felonies or com-
parable state misdemeanors would remain intact. Likewise,
state statutes restricting the ability of felons to possess firearms
would be generally enforceable, ensuring local communities’
priorities continue to shape when felons are permitted to pos-
sess firearms under state law. The states’ rights-restoration re-
gimes would also continue to perform an important function,
serving as alternatives to federal declaratory judgments.
Finally, prospective relief would avoid the debilitating
effect of today’s decision on law enforcement, U.S. Attorney’s
Offices, and our background check system. Currently, those
previously convicted of a felony can submit documentation to
the FBI through a voluntary appeal file application, including
“information regarding an expungement, restoration of firearm
rights, pardon, etc.”168 Successful applicants receive a unique
personal identification number to prevent future background
check denials.169 A felon who secures a prospective
167
See 141 S. Ct. at 2097.
168
Types of Documents Requested Based on Prohibitor, FBI
(Sept. 14, 2018), https://www.fbi.gov/file-repository/nics-ap-
peal-documents-requested.pdf/view.
169
Firearm-Related Challenge (Appeal) and Voluntary Appeal
File (VAF), FBI (last accessed Mar. 3, 2023),
50
declaratory judgment could simply submit that judgment to the
FBI to prevent false positives on his background check when
next purchasing firearms. Thus, just as they do today, law en-
forcement and prosecutors could depend on NICS for data
when deciding whom to charge with violating § 922(g)(1);
courts could rely on existing jury instructions, the standard
conditions of supervised release or parole, and the plain-error
test set out in Greer; and firearm dealers could ascertain from
a background check whether a convicted felon is entitled to
purchase weapons.
The majority has taken a far more radical approach,
creating a stark circuit split and holding § 922(g)(1) is
unconstitutional ab initio based on a seemingly random
sampling of observations about the pre- and post-conviction
conduct of this Appellant. Our district courts are left without
any intelligible standard, and our citizenry will be left reeling
from the consequences: a flood of motions to dismiss
indictments, appeals, and reversals of § 922(g)(1) convictions;
more armed felons and gun violence on our streets; less faith
in elected representatives stymied in their efforts to protect the
public; and less trust in a judiciary mired in formalism and the
usurpation of legislative function. The sooner the Supreme
Court takes up this issue, the safer our republic will be.
IV. Conclusion
For the foregoing reasons, I respectfully dissent.
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51
ROTH, Circuit Judge, dissenting
I agree with the Majority’s well-reasoned conclusions
that (1) New York State Rifle & Pistol Association, Inc. v.
Bruen1 abrogated the use of means-end scrutiny to assess
Second Amendment challenges and (2) Bryan Range is among
“the people” protected by the Second Amendment. I part with
my colleagues, however, over their determination that the
government failed to show that 18 U.S.C. § 922(g)(1), as
applied to Range, is consistent with our nation’s historical
tradition of firearms regulation.
In Bruen, the Supreme Court considered whether a
regulation issued by a state government was a facially
constitutional exercise of its traditional police power. Range
presents a distinguishable question: Whether a federal statute,
which the Supreme Court has upheld as a valid exercise of
Congress’s authority under the Commerce Clause,2 is
constitutional as applied to him. The parties and the Majority
conflate these spheres of authority and fail to address binding
precedents affirming Congress’s power to regulate the
possession of firearms in interstate commerce. Because Range
lacks standing under the applicable Commerce Clause
jurisprudence, I respectfully dissent.
I.
As the Majority explains, the Supreme Court in Bruen
invalidated the means-end component test that we have, in
1
142 S. Ct. 2111 (2022).
2
U.S. Const. art. 1, § 8, cl. 3 (authorizing Congress “to regulate
commerce with foreign nations, and among the several states,
and with the Indian tribes”).
1
recent years, applied to Second Amendment challenges.3 The
Supreme Court held: “[W]hen the Second Amendment’s plain
text covers an individual’s conduct, the Constitution
presumptively protects that conduct. To justify its regulation .
. . the government must demonstrate that the regulation is
consistent with this Nation’s historical tradition of firearm
regulation.”4
While I agree with the Majority’s assessment of the
government’s burden, I read Bruen to articulate a structured
framework for the government’s comparative analysis. This
framework is useful because it clarifies both what the
government must compare and how close the match must be.
As I read Bruen, the government must begin by
identifying the societal problem addressed by the challenged
regulation.5 The government must demonstrate whether the
problem is (1) persistent (“has persisted since the 18th
century”) or (2) modern (involves “unprecedented societal
concerns or dramatic technological changes”).6
If the problem is persistent, the government must
demonstrate that its modern regulation is “distinctly similar” to
a historical forebear, showing that early and recent legislatures
approached the problem in basically the same way.7 Here,
“lack of a distinctly similar historical regulation addressing
that problem” or evidence that “earlier generations addressed
3
Bruen, 142 S. Ct. at 2127.
4
Id. at 2126.
5
Id. at 2131–32.
6
Id. at 2131.
7
Id. at 2132.
2
the societal problem . . . through materially different means”
are “relevant evidence that the challenged regulation is
inconsistent with the Second Amendment.”8
In contrast, for modern problems that early legislatures
did not confront, Bruen allows for a more extended
comparison. Here, the government must show by analogical
reasoning that its regulation is “relevantly similar” to a
historical firearm regulation.9 Under this prong, the
government must show that the “modern and historical
regulations impose a comparable burden on the right of armed
self-defense and . . . that the burden is comparably justified.”10
In other words, the government need not identify a “historical
twin,” but only show that the regulations are aligned as to “how
and why [they] burden a law-abiding citizen’s right to armed
self-defense.”11
II.
This framework helps to illuminate my substantive
disagreement with the Majority opinion, which begins with its
characterization of the societal problem addressed by §
922(g)(1). The Majority asserts that Ҥ 922(g)(1) is a
straightforward ‘prohibition[] on the possession of firearms by
felons.’”12 This is overbroad.
8
Id.
9
Id.
10
Id. at 2133.
11
Id. (emphasis added).
12
Op. 16 (quoting Heller, 554 U.S. at 626).
3
To identify the problem Congress intended to address,
“we look to the text, structure, and purpose of the statute and
the surrounding statutory framework.”13 Section 922(g)(1)
makes it unlawful for a person “convicted in any court, of a
crime punishable by imprisonment for a term exceeding one
year” to “possess in or affecting commerce, any firearm or
ammunition.”14 This jurisdictional language is essential. In
other contexts, such as for the purposes of categorical analysis
or meeting the requirement of scienter, the Supreme Court has
distinguished “substantive” from “jurisdictional” elements.15
In § 922(g)(1), however, “far from being token, [the]
‘conventional jurisdictional element[]’ serve[s] to narrow the
kinds of crimes that can be prosecuted.”16 Here, the
jurisdictional element constrains Congress’s reach “to a
discrete set of firearm possessions that additionally have an
explicit connection with or effect on interstate commerce.”17
The Supreme Court reached this exact conclusion in
analyzing § 922(g)(1)’s predecessor, “conclud[ing] that the
commerce requirement . . . must be read as part of the
‘possesses’ and ‘receives’ offenses.”18 Otherwise, the Court
concluded, the statute would “dramatically intrude[] upon
13
Rosenberg v. DVI Receivables XVII, LLC, 835 F.3d 414, 419
(3d Cir. 2016) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470,
486 (1996)).
14
18 U.S.C. § 922(g)(1) (emphasis added).
15
See Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019);
Torres v. Lynch, 578 U.S. 452, 457 (2016).
16
Torres, 578 U.S. at 486 (dissent, J. Sotomayor, with Thomas,
J. and Breyer, J.).
17
United States v. Lopez, 514 U.S. 549, 562 (1995).
18
United States v. Bass, 404 U.S. 336, 350 (1971).
4
traditional state criminal jurisdiction.”19 The line of Supreme
Court decisions concerning § 922(g)(1) and its predecessor
statute20 deal squarely with the Commerce Clause,21
considering Congress’s authority to regulate firearms in
interstate commerce in light of those “modern-era precedents”
that, within strict limits, expanded Congress’s authority to
address “great changes that had occurred in the way business
was carried on in this country.”22 Our Court, with our sisters,
expressly upheld the constitutionality of § 922(g)(1) because
“by its very terms, [it] only regulates those weapons affecting
interstate commerce by being the subject of interstate trade. It
addresses items sent in interstate commerce and the channels
of commerce themselves, delineating that the latter be kept
clear of firearms.”23 Accordingly, the societal problem
19
Id.
20
Title VII of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C.App. § 1202(a).
21
Lopez, 514 U.S. at 556 (favorably contrasting § 922(g)(1)
with § 922(q), which the Court deemed unconstitutional for
lack of a nexus to interstate commerce); Scarborough v. United
States, 431 U.S. 563 (1977) (holding § 922(g)(1)’s predecessor
statute constitutional); Bass, 404 U.S. 336 (same).
22
Lopez, 514 at 556.
23
United States v. Singletary, 268 F.3d 196, 204 (2001); United
States v. Gateward, 84 F.3d 670, 672 (3d Cir. 1996)
(“Congress drafted § 922(g) to include a jurisdictional element,
one which requires a defendant felon to have possessed a
firearm ‘in or affecting commerce.’”); accord U.S. v. Wallace,
889 F.2d 580 (5th Cir. 1989) (“[S]ection 922(g) reaches only
those firearms that traveled in interstate or foreign commerce
and is thus constitutional); United States v. Dupree, 258 F.3d
1258, 1259 (2001); United States v. Stuckey, 255 F.3d 528,
5
addressed by § 922(g)(1) is the possession of firearms in
interstate commerce by particular “channels of commerce”—
those channels under the language of § 922(g)(1) being
individuals with certain criminal convictions.24
The Majority concludes, and I agree, that Bruen
“abrogated our Second Amendment jurisprudence,”25 meaning
the line of cases from Marzzarella,26 through Binderup,27 to
Holloway and Folajtar.28 Yet the Majority does not assert that
Bruen abrogated our Commerce Clause jurisprudence or that
of the Supreme Court.29 Rightly so. We must “leave to the
529-30 (8th Cir. 2001); United States v. Gallimore, 247 F.3d
134, 137–38 (4th Cir. 2001); United States v. Davis, 242 F.3d
1162, 1162–63 (9th Cir. 2001); United States v. Santiago, 238
F.3d 213, 216-17 (2d Cir. 2001); United States v. Dorris, 236
F.3d 582, 584–86 (10th Cir. 2000); United States v. Napier,
233 F.3d 394, 399–402 (6th Cir. 2000); United States v.
Wesela, 223 F.3d 656, 659–60 (7th Cir. 2000).
24
Notably, § 921(a)(20)(A) makes clear that § 922(g)(1) does
not apply uniformly to individuals convicted of any felony
offense, expressly excluding individuals convicted of serious
“Federal and State offenses pertaining to antitrust violations,
unfair trade practices, restraints of trade, or other similar
offenses.” Accordingly, to describe the statute as a ban on
possession by “felons” overstates its reach.
25
Op. 10.
26
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010).
27
Binderup v. Att’y Gen., 836 F.3d 336 (3d Cir. 2016) (en
banc) (plurality).
28
Holloway v. Att’y Gen., 948 F.3d 164 (3d Cir. 2020);
Folajtar v. Att’y Gen., 980 F.3d (1)
29
Lopez, 514 U.S. at 556; Scarborough, 431 U.S. at 566–67
(holding proof the firearm petitioner possessed had previously
6
[Supreme] Court itself ‘the prerogative of overruling its own
decision[s].’”30 The Court did not, in Bruen, overrule its
decisions upholding Congress’s power to regulate the
possession of firearms in interstate commerce.31 These
decisions remain good law.
Under the constitutionally mandated Commerce Clause
jurisprudence that continues to bind us, Range lacks standing.
“It is well established that plaintiffs bear the burden of
demonstrating that they have standing in the action that they
traveled in interstate commerce sufficient to meet the nexus
requirement); Bass, 404 U.S. at 350 (holding § 922(g)(1)’s
predecessor constitutional in light of the jurisdictional
element); accord Greer v. United States, 141 S. Ct. 2090, 2095
(2021) (citing Rehaif, 139 S. Ct. at 2194 (clarifying the mens
rea requirement under § 922(g)(1)); Logan v. United States,
552 U.S. 23, 37 (2007) (clarifying the scope of § 921(a)(20)).
See also Small v. United States, 544 U.S. 385, 394 (2005)
(Thomas, J., dissenting) (calling for § 922(g)(1) to apply to a
wider category of individuals, specifically those convicted in
foreign courts).
30
Singletary, 268 F.3d at 205.
31
As the Majority acknowledges, Op. 16, Justice Kavanaugh’s
concurrence in Bruen, joined by the Chief Justice, asserted that
felon-possession prohibitions remain “presumptively lawful”
under Heller and McDonald. 142 S. Ct. at 2162 (quoting
District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26
(2008)) (citing McDonald v. City of Chicago, 561 U.S. 742,
786 (2010)).
7
have brought.”32 To meet this burden, they must demonstrate
“(1) the invasion of a concrete and particularized legally
protected interest and resulting [actual or imminent] injury. . .
. (2) a causal connection between the injury and the conduct
complained of . . . and [3] that the injury will be redressed by
a favorable decision.”33
Before the District Court, Range alleged that “he suffers
the on-going harm of being unable to obtain firearms from
licensed federal firearms dealers.”34 While the District of
Columbia Court of Appeals has recognized a cognizable injury
where “the federal regulatory scheme thwarts [a challenger’s]
continuing desire to purchase a firearm,” it did so in cases
where the regulation’s facial constitutionality was at issue.35
32
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir.
2014) (citing Danvers Motor Co. v. Ford Motor Co., 432 F.3d
286, 291 (3d Cir. 2005)).
33
Id. at 278 (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)).
34
Appx026.
35
Dearth v. Holder, 641 F.3d 499, 503 (D.C. Cir. 2011)
(affirming that the petitioner suffered a cognizable injury
where “the federal regulatory scheme thwarts his continuing
desire to purchase a firearm”); see Parker v. District of
Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“The formal
process of application and denial, however routine, makes the
injury to [the petitioner’s] alleged constitutional interest
concrete and particular.”), aff’d sub nom. District of Columbia
v. Heller, 554 U.S. 570 (2008); see United States v. Salerno,
481 U.S. 739, 745 (1987) (“A party asserting a facial challenge
‘must establish that no set of circumstances exists under which
the Act would be valid.”).
8
Here, Range brought only an as-applied challenge.36
Moreover, he has identified no specific firearm that he has been
prohibited from possessing. To sustain a conviction under §
922(g)(1), the government must prove beyond a reasonable
doubt that the specific firearm possessed by the individual
moved through interstate commerce.37 The reason is that while
the nexus need only be minimal,38 § 922(g)(1) simply does not
36
See United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.
2010) (“An as-applied attack . . . does not contend that a law is
unconstitutional as written but that its application to a
particular person under particular circumstances deprived that
person of a constitutional right.”).
37
See Singletary, 268 F.3d at 200; accord United States v.
Shambry, 392 F.3d 631, 632 (3d Cir. 2004); United States v.
Leuschen, 395 F.3d 155, 160 (3d Cir. 2005).
38
See Shambry, 392 F. 3d at 635 (citing United States v.
Corey, 207 F.3d 84, 88 (1st Cir.2000) (“[T]he ‘interstate
nexus’ element was met provided the government
demonstrated that [the defendant] possessed the shotgun in a
state other than the one in which it was manufactured.”);
United States v. Lawson,173 F.3d 666, 670 (8th Cir. 1999)
(finding that the stipulation that the guns were manufactured
outside of the state where the defendant possessed them
satisfied “‘the minimal nexus that the firearms have been, at
some time, in interstate commerce,’ that is, that the firearms at
some point prior to [the defendant’s] possession . . . crossed a
state line” (quoting United States v. Shelton, 66 F.3d 991, 992
(8th Cir. 1995) (per curiam))); United States v. Pierson, 139
F.3d 501, 504 (5th Cir. 1998) (“[E]vidence that a gun was
manufactured in one state and possessed in another state is
sufficient to establish a past connection between the firearm
and interstate commerce.”); United States v. Crump, 120 F.3d
9
criminalize possession of firearms out of interstate commerce.
Here, Range has not asserted that this constitutionally reviewed
regulation of commerce intrudes on any Second Amendment
rights by establishing in § 922(g)(1) a prohibition on certain
channels of commerce, i.e., felons, possessing firearms that
have circulated in interstate commerce.39
462, 466 & n. 2 (4th Cir. 1997) (“[It] is our view that the
movement of a firearm beyond the boundaries of its state of
manufacture ‘substantially affects’ interstate commerce. . . .”);
United States v. Lewis, 100 F.3d 49, 50 (7th Cir. 1996)
(“[P]roof of a gun’s manufacture outside of the state in which
it was allegedly possessed is sufficient to support the factual
finding that the firearm was ‘in or affecting commerce.’”
(quoting United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.
1988))); United States v. Farnsworth, 92 F.3d 1001, 1006 (10th
Cir. 1996) (finding expert testimony that the defendant’s gun
had been manufactured in a different state from that in which
it was found was sufficient nexus to interstate commerce);
United States v. Sanders, 35 F.3d 61, 62 (2d Cir. 1994) (finding
fact that gun was manufactured in a state different from that in
which it was possessed was sufficient nexus to interstate
commerce); United States v. Morris, 904 F.2d 518, 519 (9th
Cir. 1990) (same); United States v. Singleton, 902 F.2d 471,
473 (6th Cir. 1990) (“[T]he mere fact that the firearm was
manufactured in a different state established a sufficient nexus
with interstate commerce.”)).
39
The Eighth Circuit recently rejected a similar as-applied
challenge to § 922(g)(1). The decision underscored Congress’
recognition that “only through adequate Federal control over
interstate and foreign commerce in these weapons” could the
“grave problem” of lawlessness and violent crime in the
United States be dealt with, as it arose from the “widespread
10
In short, the harm that Range has asserted is not
constitutional. He has failed to set forth the necessary
interstate commerce connections to allow federal jurisdiction
of his complaint. He has merely established that a thoroughly
reviewed statute has had its intended effect by preventing him
from possessing a firearm in interstate commerce because of
his particular criminal conviction, which falls within the
statute’s clearly defined ambit.
This jurisdictional deficiency has put Range’s claims
beyond our reach. It is not unlikely, however, that a future
challenge to the prohibition of § 922(g)(1) will come before us
in which federal jurisdiction has been properly established. In
such a case, I would share the concern expressed today by my
dissenting colleagues40 about the extent to which this
precedential opinion may reverberate beyond the
circumstances presented in this as-applied challenge.
Certainly, such an analysis would be crucial for us should a
future, similar challenge arise within our jurisdiction,
particularly on a facial basis.
traffic in firearms moving in or otherwise affecting interstate
or foreign commerce” and “the ease with which any person can
acquire firearms other than a rifle or shotgun.” United States
v. Jackson, No. 22-2870, 2023 WL 3769242, *8 (8th Cir. June
2, 2023). Although the court thus tacitly and, in my view,
appropriately acknowledged that Congress’ authority to
regulate here was under the Commerce Clause, it unfortunately
did not address whether Jackson had established standing
accordingly for his as-applied challenge.
40
See generally Shwartz Dissent; Krause Dissent 4–5.
11
For the above reasons, I respectfully dissent.
12