Bryan Range v. Attorney General United States

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

Reargued En Banc on October 9, 2024 on Remand from the

Supreme Court of the United States

______________

Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,

MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES,

CHUNG, ROTH,* and AMBRO,**

Circuit Judges.

(Filed: December 23, 2024)

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

*

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

Suite 320

Las Vegas, NV 89149

Counsel for Amici Curiae FPC Action Foundation and

Firearms Policy Coalition, Inc. in Support of Appellant

Elisa A. Long

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.

3

Washington, DC 20530

Counsel for the Appellees

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, filed the Opinion of the Court

with whom CHAGARES, Chief Judge, and JORDAN, BIBAS,

PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-

REEVES, and CHUNG, Circuit Judges, join. MATEY,

Circuit Judge, filed a concurring opinion. PHIPPS, Circuit

Judge, filed a concurring opinion. KRAUSE, Circuit Judge,

filed an opinion concurring in the judgment, with whom

ROTH, Circuit Judge, joins in part. ROTH, Circuit Judge,

filed an opinion concurring in the judgment, with whom

KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO,

Circuit Judge, concurs in the judgment only. SHWARTZ,

Circuit Judge, filed a dissenting opinion with whom

RESTREPO, Circuit Judge, joins.

4

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 the principles underlying our Nation’s history and tradition

of firearm regulation support disarming Range, we will reverse

and remand.

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.

5

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,”

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

In 2020, 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.

6

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

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 involved 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.

7

While Range’s appeal was pending, the Supreme Court

decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1 (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.”

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. 2023). The en banc Court reversed and

remanded for the District Court to enter a declaratory judgment

for Range. We concluded that Range remained one of “the

people” protected by the Second Amendment and that the

Government did not show the Nation has a longstanding

history and tradition of disarming people like Range. Range v.

Att’y Gen., 69 F.4th 96, 98 (3d Cir. 2023) (en banc). The

Government petitioned the Supreme Court for a writ of

certiorari.

While the Government’s petition was pending, the

Supreme Court decided United States v. Rahimi, 144 S. Ct.

1889 (2024). The Court then vacated our en banc decision in

Range and remanded for further consideration. Garland v.

Range, 144 S. Ct. 2706 (2024). The parties and amicus filed

more briefs and we heard argument again.

8

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). Given 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.

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

9

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 as moot sub nom. Beers v.

Barr, 140 S. Ct. 2758 (2020); Holloway, 948 F.3d at 169–72;

Folajtar, 980 F.3d at 901.

Bruen rejected the two-step approach as “one step too

many.” 597 U.S. at 19. 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 17. 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 10. 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, 597 U.S. at 72 (Alito, J., concurring)

(“Our holding decides nothing about who may lawfully

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

10

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. 597 U.S. at 31–33. 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 19.

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

11

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 circuit courts did with Heller’s statement that

the District of Columbia firearm law would fail under any form

of heightened scrutiny.

Second, other constitutional provisions refer to “the

people.”1 For instance, “the people” are recognized as having

1

See, e.g., U.S. Const. pmbl. (“We the People of the United

States . . . .” (emphasis added)); id. amend. IX (recognizing

12

rights to assemble peaceably, to petition the government for

redress,2 and to be protected against unreasonable searches and

seizures.3 Felons are not categorically barred from First

Amendment or Fourth Amendment protection because of their

status. It is true, however, that prisoners have no First

Amendment right to peaceably assemble, see Pell v. Procunier,

417 U.S. 817, 822 (1974), and no Fourth Amendment right as

to prison-cell searches. Hudson v. Palmer, 468 U.S. 517, 526

(1984). We see no reason to adopt a reading of “the people”

that excludes Americans from the scope of the Second

Amendment while they retain their constitutional rights in

other contexts.

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).

rights “retained by the people”); id. amend. X (acknowledging

the powers reserved “to the people”).

2

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)).

3

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)).

13

We agree with that statement in Binderup and then-Judge

Barrett’s reasoning.

Fourth, as the Government concedes, see Gov’t Range

II En Banc Br. 25, Rahimi makes clear that citizens are not

excluded from Second Amendment protections just because

they are not “responsible.” See Rahimi, 144 S. Ct. at 1903. The

Supreme Court cautioned that “responsible” is too vague a

concept to dictate the Second Amendment’s applicability and

using the term that way would create an “unclear . . . rule” that

does not “derive from [Supreme Court] case law.” Id. So too

with the phrase “law-abiding.” 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 at the Founding, many states were moving away

from making felonies—including crimes akin to making false

statements—punishable by death in America. See United

States v. Moore, 111 F.4th 266, 270–72 (3d Cir. 2024) (citing

various Founding-era felony laws and penalties). For example,

in Massachusetts, New Jersey, Kentucky, Virginia,

Connecticut, and New York, forgery and counterfeiting were

punishable with imprisonment, hard labor, fines, or corporal

14

punishment, but not death.4 Federally, the Crimes Act of 1790

criminalized conduct involving falsification of records and

stealing property of the United States, and punished such

conduct with fines, corporal punishment, or a term of

imprisonment.5 And today, felonies include a wide swath of

crimes, some of which seem minor.6 Meanwhile, some

4

James T. Mitchell et al., Compiled Statutes at Large of

Pennsylvania from 1682 to 1801 (1700-1809); An Act to

Prevent Forgery, And For the Punishment of Those Who Are

Guilty of the Same. 1784 Mass. Acts Ch. 67; Virginia,

Collection of All Such Acts of the General Assembly of

Virginia, of a Public or Permanent Nature, as are Now in Force

(1803); Harry Toulmin, Collection of All the Public and

Permanent Acts of the General Assembly of Kentucky Which

Are Now in Force (1802); Acts and Laws of the State of

Connecticut (1784); William Paterson, Laws of the State of

New Jersey (1800); Thomas Greenleaf, Laws of the State of

New York, Comprising the Constitution, and the Acts of the

Legislature, since the Revolution, from the First to the

Fifteenth Session (1797).

5

See Crimes Act of 1790, §§ 14–15, 1 Stat. 122, 115–16.

6

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).

15

misdemeanors seem serious.7 As the Supreme Court noted

recently: “a felon is not always more dangerous than a

misdemeanant.” Lange v. California, 594 U.S. 295, 305 (2021)

(cleaned up).

At root, the Government’s claim that “felons are not

among ‘the people’ protected by the Second Amendment,” see

Gov’t Range II En Banc Br. 9 n.1, 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, 597 U.S. at 26 (warning

against “judicial deference to legislative interest balancing”).

In sum, we reject the Government’s contention that

“felons are not 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

7

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).

16

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, 597 U.S. at 17.

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 shown that applying § 922(g)(1) to Range

would be “consistent with the Nation’s historical tradition of

firearm regulation.” Id. at 24. 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

part of the historical tradition that delimits the outer bounds of

the right to keep and bear arms.” Id. at 19. 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

30. To be compatible with the Second Amendment, modern

laws must be “‘relevantly similar’ to laws that our tradition is

understood to permit.” Rahimi, 144 S. Ct. at 1898 (quoting

Bruen, 597 U.S. at 29). “Why and how the regulation burdens

the right are central to this inquiry.” Id.

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

17

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). In his

concurring opinion in Bruen, Justice Kavanaugh, joined by the

Chief Justice, wrote that felon-in-possession prohibitions are

“presumptively lawful” under Heller and McDonald. 597 U.S.

at 81 (quoting Heller, 554 U.S. at 626–27 & n.26).8

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 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

8

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.

18

Rahimi Court’s focus on Founding-era sources, 144 S. Ct. at

1899–900, and the Bruen Court’s emphasis on Founding- and

Reconstruction-era sources, 597 U.S. at 34, 59–60—Range

would not have been a prohibited person under that law.

Whatever timeframe the Supreme Court might establish in a

future case, see Rahimi, 144 S. Ct. at 1898 n.1, 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.9

The Government’s attempt to identify older historical

analogues also fails. 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

9

Nor are we convinced by the 1920s and 1930s state statutes

banning firearm possession by felons, or the 1960s laws

disarming drug addicts and drug users, 1980s laws disarming

persons unlawfully present in the United States and persons

dishonorably discharged from the armed forces, or 1990s laws

disarming domestic violence misdemeanants. Gov’t Range II

En Banc Br. 17, 20–21. These are all too late: “20th-century

evidence . . . does not provide insight into the meaning of the

Second Amendment when it contradicts earlier evidence.”

Bruen, 597 U.S. at 66 n.28; Rahimi, 144 S. Ct. at 1924 (Barrett,

J. concurring) (“[T]he history that matters most is the history

surrounding the ratification of the text; that backdrop

illuminates the meaning of the enacted law. History (or

tradition) that long postdates ratification does not serve that

function.”).

19

on race and religion now would be unconstitutional under the

First and Fourteenth Amendments, the Government does not

successfully analogize those groups to Range. 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, 597 U.S. at 31 (noting that historical restrictions on

firearms in “sensitive places” do not empower legislatures to

designate any place “sensitive” and then ban firearms there).

For instance, as the Government notes, colonial laws disarmed

Loyalists for helping the British army or “bearing arms

against” the Continental Congress. Gov’t Range II En Banc Br.

13 (quoting Resolution of Mar. 13, 1776, in Journal of the

Provincial Congress of South Carolina, 1776, at 77 (1776)).

The colonies reasonably feared that Loyalists might take up

arms again. But there is no such basis to fear that Range is

disloyal to his country.

According to the Government, taken together, these

proposed historical analogues support a principle that

“American legislatures disarmed classes of individuals who

posed a danger of misusing firearms.” Gov’t Range II En Banc

Br. 19.

Rahimi did bless disarming (at least temporarily)

physically dangerous people. The law that it upheld required

“a finding that [the defendant] represents a credible threat to

[someone else’s] physical safety.” 18 U.S.C. § 922(g)(8)(C)(i);

144 S. Ct. at 1894, 1896, 1898, 1901–02. It did so “because the

Government offer[ed] ample evidence” of a tradition of

disarming people who “pose[ ] a clear threat of physical

violence to another.” Id. at 1898, 1901; accord id. at 1898

(“credible threat to the physical safety of others”). But the

20

Government does not try to justify disarming Range on this

ground, and with good reason: it has no evidence that he poses

a physical danger to others or that food-stamp fraud is closely

associated with physical danger. It conceded as much the first

time this Court heard the case en banc. Oral argument at 35:05–

34:10; 32:55–31:52; 28:45–28:10.

Rather, the Government seeks to stretch dangerousness

to cover all felonies and even misdemeanors that federal law

equates with felonies. It notes that Rahimi left open the

possibility of “banning the possession of guns by categories of

persons thought by a legislature to present a special danger of

misuse.” Gov’t Range II En Banc Br. 19 (quoting 144 S. Ct. at

1901). And it argues that those “convicted of serious crimes,

as a class, can be expected to misuse firearms.” Id. at 22

(internal quotation marks omitted); accord United States v.

Jackson, 110 F.4th 1120, 1127–29 (8th Cir. 2024).

Even if that categorical argument could suffice to

uphold the original 1938 felon-in-possession ban, it does not

support the current one. Again, it is “far too broad[ ].” Bruen,

597 U.S. at 31. It operates “at such a high level of generality

that it waters down the right.” Rahimi, 144 S. Ct. at 1926

(Barrett, J., concurring). Like the Sixth Circuit, we refuse to

defer blindly to § 922(g)(1) in its present form. See United

States v. Williams, 113 F.4th 637, 658–61 (6th Cir. 2024)

(categorizing crimes as crimes against the person, crimes like

burglary and drug trafficking that “pose a significant threat of

danger,” and nondangerous ones).

To support the de facto permanent disarmament that

§ 922(g)(1) imposes, the Government points out that “the

Founding generation determined that many criminal offenses

were of such ‘gravity’ that they should ‘expose offenders to the

21

harshest of punishments, including death.’” Gov’t Range II En

Banc Br. 10 (citation omitted). Our dissenting colleagues

likewise reason “that fraudsters could lose their life, and hence

their firearms rights.” Dissent of Shwartz, J., at 5. It is true that

“founding-era practice” was to punish some “felony offenses

with death.” Gov’t Range II En Banc Br. 10. For example, the

First Congress made forging or counterfeiting a public security

a capital offense. See An Act for the Punishment of Certain

Crimes Against the United States, 1 Stat. 112, 115 (1790). That

said, the crime to which Range pleaded guilty—making a false

statement to obtain food stamps—may be more analogous to

other offense defined in the same law punishable by a term of

imprisonment or fine.10 While some states at first punished

nonviolent crimes “such as forgery and horse theft” with

death, see Folajtar, 980 F.3d at 904 (citations omitted), by the

early Republic, many states assigned lesser punishments.11

Yet the Founding-era practice of punishing some

nonviolent crimes with death does not suggest that the

particular (and distinct) punishment at issue here—de facto

lifetime disarmament for all felonies and felony-equivalent

misdemeanors—is rooted in our Nation’s history and tradition.

10

See e.g., Crimes Act of 1790, § 15, 1 Stat. 122, 115–16 (“any

person [who] shall feloniously . . . alter [or] falsify . . . any

record . . . in any of the courts of the United States, by means

whereof any judgment shall be reversed” is punishable by fine,

whipping, or “imprison[ment] not exceeding seven years”); id.

§ 16 (“any person . . . [in] custody . . . of any victuals provided

for the victualing of any soldiers . . . [who] for any lucre or

gain, . . . embezzle, purloin or convey away [such goods]” is

punishable by fine or public whipping).

11

See supra note 4.

22

Though our dissenting colleagues read Rahimi as blessing

disarmament as a lesser punishment generally, the Court did

not do that. Instead, it authorized temporary disarmament as a

sufficient analogue to historic temporary imprisonment only to

“respond to the use of guns to threaten the physical safety of

others.” Compare Rahimi, 144 S. Ct. at 1902, with United

States v. Diaz, 116 F.4th 458, 469–70 (5th Cir. 2024) (similarly

broad reasoning).

For similar reasons, Founding-era laws that forfeited

felons’ weapons or estates are not sufficient analogues either.

Such laws often prescribed the forfeiture of the specific

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”). So

in the Founding era, a felon could acquire arms after

completing his sentence and reintegrating into society.

Against this backdrop, it’s important to remember that

Range’s crime—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

23

regaining his possessions, including firearms (unless 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 as a

methamphetamine lab. And of those three, only firearms are

mentioned in the Bill of Rights.12

For the reasons stated, we hold that the Government has

not shown that the principles underlying the Nation’s historical

tradition of firearms regulation support depriving Range of his

Second Amendment right to possess a firearm.13 See Rahimi,

144 S. Ct. at 1898; Bruen, 597 U.S. at 17.

* * *

Our decision today is a narrow one. Bryan Range

challenged the constitutionality of 18 U.S.C. § 922(g)(1) only

12

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.

13

Our concurring colleague criticizes that our opinion “creates

more questions than it answers” and that we “decline to adopt

any articulable methodology of [our] own.” Concurrence of

Krause, J., 67, 65. But in this as-applied constitutional

challenge, our task is to decide only Mr. Range’s case, rather

than preview how this Court would decide future Second

Amendment challenges.

24

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. More than two decades after he was convicted of food-

stamp fraud and completed his sentence, he sought protection

from prosecution under § 922(g)(1) for any future possession

of a firearm. The record contains no evidence that Range poses

a physical danger to others. 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 for Range, enjoin enforcement of § 922(g)(1) against

him, and conduct any further proceedings consistent with this

opinion.

25

MATEY, Circuit Judge, concurring.

Having “arms for [one’s] defence . . . is indeed a public

allowance, under due restrictions, of the natural right of

resistance and self-preservation.” 1 William Blackstone,

Commentaries *143–44. I agree with the majority that the

Justice Department has not shown that § 922(g)(1) can be

applied to disarm Bryan Range. I write separately to explain

why that conclusion follows classical principles respecting the

natural rights that inform “our regulatory tradition.” United

States v. Rahimi, 144 S. Ct. 1889, 1898 (2024). Doing so

demonstrates the “reason and spirit” of the law, 1 Blackstone,

Commentaries *61, or the “principles underlying the Second

Amendment,” Rahimi, 144 S. Ct. at 1898. Although historical

practices need not be a “dead ringer” or a “historical twin,”

Rahimi, 144 S. Ct. at 1898 (quoting N.Y. State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022)), they must always

faithfully follow the “the first and primary end of human laws,

[which] is to maintain and regulate [the] absolute rights of

individuals,” Alexander Hamilton, The Farmer Refuted

(1775), reprinted in The Revolutionary Writings of Alexander

Hamilton 53 (Richard B. Vernier ed., 2008) (emphasis

omitted) (quoting 1 Blackstone, Commentaries *124). That is

the tradition informing our historical practice, and the principle

that necessarily guides our analysis.

I.

Preserving “unalienable rights” justified our separation

from England, Declaration of Independence para. 2 (U.S.

1776), and required a government “ordain[ed]” to “promote the

general Welfare” and “secure the Blessings of Liberty,” U.S.

Const., pmbl. That is because “natural liberty is a gift of the

beneficent Creator,” while “[c]ivil liberty is only natural

1

liberty, modified and secured by the sanctions of civil society.”

Hamilton, supra, at 70 (emphasis omitted); see also Collected

Works of James Wilson 1083 (Kermit L. Hall & Mark David

Hall eds., 2007) (“[M]an does not exist for the sake of

government, but government instituted for the sake of man.”).

But the fundamental rights that predate America are not

unlimited, and like any law, never license acting contrary to the

common good.1 These inherent limitations apply to all of

man’s “natural rights,” and are consistent with the Supreme

Court’s repeated explanation that the “pre-existing”

“individual right to keep and bear arms” for self-defense is “not

unlimited.” District of Columbia v. Heller, 554 U.S. 570, 592,

595 (2008) (emphasis omitted); see also Bruen, 597 U.S. at 20;

Rahimi, 144 S. Ct. at 1897.2

1

See Collected Works of James Wilson 1055–56.

(“[S]elfishness and injury are as little countenanced by the law

of nature as by the law of man.”); Thomas Aquinas, Summa

Theologica, pt. I-II, q. 90, art. 2 (Fathers of the English

Dominican Province trans., Benzinger Bros. 1947) (c. 1271)

(“Consequently, since the law is chiefly ordained to the

common good, any other precept in regard to some individual

work, must needs be devoid of the nature of a law, save in so

far as it regards the common good. Therefore every law is

ordained to the common good.”).

2

See Collected Works of James Wilson at 1056. (“Upon

the whole, therefore, man’s natural liberty, instead of being

abridged, may be increased and secured in a government,

which is good and wise. As it is with regard to his natural

liberty, so it is with regard to his other natural rights.”); The

Unsigned Essays of Supreme Court Justice Joseph Story: Early

American Views of Law 262 (Valerie L. Horowitz ed., 2015)

2

Surveying history helps us understand the reasons relied

on to regulate the right, see Bruen, 597 U.S. at 27–29; Rahimi,

144 S. Ct. at 1898, ensuring a “[c]ontinuity of [p]rinciples”

faithful to our inherited tradition.3 We look, in other words, for

“markers or indicators that the later doctrine is essentially

continuous with the earlier one and grows out of it, rather than

representing a break with the past that mutilates or

fundamentally transforms the core and essence of the

doctrine.” Adrian Vermeule, Common Good Constitutionalism

123 (2022). So we must consider the sources that animate the

(“[U]nder certain circumstances, life, and liberty, and property,

may justly be taken away; as, for instance, in order to prevent

crimes, to enforce the rights of other persons, or to secure the

safety and happiness of society.”).

3

John Henry Newman, An Essay on the Development

of Christian Doctrine 178 (Longmans, Green, & Co. 1909)

(1845); see also id. at 178–79 (“[P]rinciples are permanent,”

so “[d]octrines stand to principles, as the definitions to the

axioms and postulates of mathematics.”); Jamie G.

McWilliam, A Classical Legal Interpretation of the Second

Amendment, 28 Tex. Rev. L. & Pol. 125, 159 (2024) (“Even

when circumstances evolve, the principles remain the same” so

any “statutes governing arms for the common good must be

evaluated for their compliance with the principles of the ius

naturale and the determinations thereof embodied in the

Second Amendment.”); Bank of Toledo v. City of Toledo, 1

Ohio St. 622, 630–31 (1853) (“[L]aw is the perfection of

reason, and that it is the reason and justice of a legal principle,

which give to its vitality,” therefore, “recurrence should be had

to fundamental principles, and the authority of precedent

regarded so far only as there is to be found a conformity to

reason and the true nature of our own government.”).

3

natural right to bear arms, and the origin of the tradition that

inspired that right, since “the object” of declaring our

independence was “not to find out new principles, or new

arguments, never before thought of, [or] merely to say things

which had never been said before.” Letter from Thomas

Jefferson to Henry Lee (May 8, 1825). Instead, we sought to

“place before mankind the common sense of the

subject . . . giv[ing] to that expression the proper tone and spirit

called for by the occasion. [A]ll [its] authority rests then on the

harmonising sentiments of the day, whether expressed, in

conversns in letters, printed essays or in the elementary books

of public right, as Aristotle, Cicero, Locke, Sidney Etc.” Id.4

4

I follow the well-established practice of consulting

classical authorities discussing natural law to inform the

determination of written rights. “[S]eventeenth- and

eighteenth-century jurists such as Hugo Grotius, Samuel

Pufendorf, Emmerich de Vattel, and William Blackstone” all

held a “jurisprudential worldview” that reflects an “interpretive

tradition” of viewing “natural law not simply as a collection of

universally valid substantive moral principles grounded in

human nature, but also as an interpretive approach.” Robert

Lowry Clinton, The Supreme Court Before John Marshall, 27

J. Sup. Ct. Hist. 222, 227 (2002). The theory that “the

substance of the law pre-exists its ‘declaration’ by courts or

other authoritative interpreters” “formed the horizon within

which the pre-Marshall and Marshall Courts understood the

judicial function and its limitations.” Id. Examples from the

early years following the Founding abound. See, e.g., United

States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (Story,

Circuit Justice, C.C.D. Mass. 1822) (No. 15,551) (“[E]very

doctrine, that may be fairly deduced by correct reasoning from

the rights and duties of nations, and the nature of moral

4

obligation, may theoretically be said to exist in the law of

nations . . . . And I may go farther and say, that no practice

whatsoever can obliterate the fundamental distinction between

right and wrong, and that every nation is at liberty to apply to

another the correct principle, whenever both nations by their

public acts recede from such practice, and admits the injustice

or cruelty of it.”); United States v. Libellants & Claimants of

The Schooner Amistad (The Amistad), 40 U.S. (15 Pet.) 518,

595 (1841) (relying on the “enteral principles of justice and

international law”); Coffin v. United States, 156 U.S. 432,

453–57 (1895) (tracing the “principle that there is a

presumption of innocence in favor of the accused” back to the

Roman law). That practice continued into the Twentieth

Century. See, e.g., Lochner v. New York, 198 U.S. 45, 65–67

(1905) (Harlan, J., dissenting) (explaining that although the

“inherent rights” to “‘be free in the enjoyment of all his

faculties, to be free to use them in all lawful ways, to live and

work where he will, to earn his livelihood by any lawful

calling, [and] to pursue any livelihood or avocation’” are free

from “undu[e] interference,” the government may exercise its

“police power” to “promote the general welfare, or to guard the

public health, the public morals, or the public safety” (quoting

Allgeyer v. Lousiana, 165 U.S. 578, 589 (1897))); Pierce v.

Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268

U.S. 510, 535 (1925) (“The fundamental theory of liberty upon

which all governments in this Union repose excludes any

general power of the state to standardize its children by forcing

them to accept instruction from public teachers only. The child

is not the mere creature of the state; those who nurture him and

direct his destiny have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”); Berea

Coll. v. Kentucky, 211 U.S. 45, 67–68 (1908) (Harlan, J.,

5

Absent exploration of the natural principles that support our

legal tradition, we overlook those “certain primary truths, or

first principles, upon which all subsequent reasonings must

depend.” The Federalist No. 31, at 193 (Alexander Hamilton)

(C. Rossiter ed., 1961). In other words, an appropriate

historical inquiry cannot be conducted while blind to the

“reason and spirit” of the law, 1 Blackstone, Commentaries

*61, which provided for its validity and natural purpose.5

Rightly framed, history reveals two principles

informing a consistent tradition. First, because the right to

self-defense is protected by the Second Amendment and

preexists our Founding, laws extensively regulating the types

of firearms a person can possess and the places where

possession is permitted can “eviscerate the general right to

publicly carry arms for self-defense.” Bruen, 597 U.S. at 31;

dissenting) (“The capacity to impart instruction to others is

given by the Almighty for beneficent purposes; and its use may

not be forbidden or interfered with by government,—certainly

not, unless such instruction is, in its nature, harmful to the

public morals or imperils the public safety. . . . The denial of

either right would be an infringement of the liberty inherent in

the freedom secured by the fundamental law.”); Farrington v.

Tokushige, 273 U.S. 284, 299 (1927) (explaining that despite

“grave problems” incident to changing social conditions, the

government cannot infringe on the “fundamental rights of the

individual” that the Fourteenth Amendment was enacted to

protect).

5

“The Founders saw nothing particularly strange, or

insuperable, in the task of appealing to those laws of

reason . . . .” Hadley Arkes, Constitutional Illusions and

Anchoring Truths: The Touchstone of Natural Law 25 (2010).

6

see also Heller, 554 U.S. at 636. All showing a robust

protection of the right to bear arms by those within the civil

society that can rarely be circumvented by the sovereign.

Second, because “public Virtue is the only Foundation

of Republics,”6 the natural right to self-defense, like all other

natural rights, can be exercised only by “a virtuous people who

were controlled from within by a moral compass” that

“respect[] social order, legitimate authority,” and “civic

virtue.”7 This principle provides the reason for restrictions of

the right to bear arms on those who set themselves against civil

6

Letter from John Adams to Mercy Otis Warren (Apr.

16, 1776); see also Washington’s Farewell Address (Sept. 17,

1796), in 1 A Compilation of Messages and Papers of the

President, 1789–1897, 213, 220 (James D. Richardson ed.,

1896) (“It is substantially true, that virtue or morality is

necessary spring of popular government. The rule indeed

extends with more or less force to every species of free

government.”); Letter from John Adams to Zabdiel Adams

(June 21, 1776) (“[I]t is Religion and Morality alone, which

can establish the Principles upon which Freedom can securely

stand . . . . The only foundation of a free Constitution, is pure

Virtue, and if this cannot be inspired into our People, in a

greater Measure, than they have it now, They may change their

Rulers, and the forms of Government, but they will not obtain

a lasting Liberty.—They will only exchange Tyrants and

Tyrannies.”).

7

Daniel L. Dreisbach, Reading the Bible with the

Founding Fathers 68 (2017); see also John Adams to the

Officers of the First Brigade of the Third Division of the Militia

of Massachusetts (Oct. 11, 1798) (“Our Constitution was made

only for a moral and religious people.”).

7

society by individual actions inconsistent with the common

good.8 See Rahimi, 144 S. Ct. at 1901 (“[C]ommon sense

suggests [that] [w]hen an individual poses a clear threat of

physical violence to another, the threatening individual may be

disarmed.”); 1 Blackstone, Commentaries *251 (“For civil

liberty, rightly understood, consists in protecting the rights of

individuals by the united force of society; society cannot be

maintained, and of course can exert no protection, without

obedience to some sovereign power; and obedience is an empty

name, if every individual has a right to decide how far he

himself shall obey.”). Regulations concerning what types of

firearms a person may carry and where a person may carry

uniformly apply to everyone. But regulations on who may

carry center on remedying, through punishment, present threats

to the community stemming from individualized conduct. And

rightfully so, because “[t]he object of human punishment”

includes “depriving the offender of the power of doing

mischief” in order to “secure the safety of the community.” The

Unsigned Essays of Supreme Court Justice Joseph Story: Early

American Views of Law 98 (Valerie L. Horowitz ed., 2015)

[hereinafter Essays of Justice Story]. Because it is “the right of

every society to protect its own peace and interests,” necessary

measures may be implemented as “punishment, if the safety of

society requires it.” Id.; see also Thomas Aquinas, Summa

8

This principle is not synonymous with the Justice

Department’s erroneous argument that the Second Amendment

can be exercised only by law-abiding and responsible citizens,

which the Supreme Court rejected in Rahimi. See 144 S. Ct. at

1903 (rejecting “responsible” as too vague a term). As

explained, “responsible” is not defined by the whim of the

sovereign or the will of the majority, but instead flows from the

classical concept of the common good.

8

Theologica, pt. I-II, q. 96, art. 2 (Fathers of the English

Dominican Province trans., Benzinger Bros. 1947) (“[H]uman

laws do not forbid all vices, from which the virtuous abstain,

but only the more grievous vices, from which it is possible for

the majority to abstain; and chiefly those that are to the hurt of

others, without the prohibition of which human society could

not be maintained.”).9

A.

I begin with a brief examination of the liberty to defend

oneself with arms, a right inherent in natural society that “[t]he

law very wisely, and in a manner silently, gives a man.”

Marcus Tullius Cicero, Speech in Defence of Titus Annius Milo

(c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390, 394

(C.D. Yonge trans., 1913). Cicero explained that “if our life be

in danger from plots, or from open violence, or from the

weapons of robbers or enemies, every means of securing our

9

Underexplored in this debate is the role of punishment

in “depriving the offender of the power of doing mischief” in

order to “secure the safety of society.” Essays of Justice Story,

supra, at 98. Moving forward, litigants and scholars alike

should consider the role of government in punishing

individuals who have exhibited dangerous conduct setting

themselves against the general welfare of the community. See

Summa Theologica, supra, pt. I-II, q. 87, art. I (“It has passed

from natural things to human affairs that whenever one thing

rises up against another, it suffers some detriment

therefrom. . . . Consequently, whatever rises up against order,

is put down by that order or by the principle thereof.”); John

Locke, Second Treatise of Government, §§ 87–88 (1690);

Adam Smith, The Theory of Moral Sentiments, pt. II, § 2, ch. 1

(1759).

9

safety is honorable.” Id. This law of self-defense “is a

law . . . not written, but born with us, —which we have not

learnt, or received by tradition, or read, but which we have

taken and sucked in and imbibed from nature herself; a law

which we were not taught, but to which we were made.” Id.

The Roman empire echoed Cicero’s points “for

centuries to come.” Stephen P. Halbrook, That Every Man Be

Armed 20 (1984). The Lex Cornelia de sicariis of 81 B.C.

stated that carrying weapons was lawful but not carrying a

“sword of vengeance” or “weapons for the purpose of

homicide.” J. Inst. 4.18.5 (J. Moyle trans. 1913). Accordingly,

“whatever a person does for his bodily security he can be held

to have done rightfully.” Dig. 1.1.3 (Florentinus, Institutes 1)

(Alan Watson, trans., 1998). But “rightfully” is the condition

that justifies the action. Dig. 1.1.1 (Ulpian, Institutes 1). “The

basic principles of right are: to live honorably, not to harm any

other person, [and] to render to each his own.” Dig. 1.1.10

(Ulpian, Rules 1) (emphasis added). Thus, “it is a grave wrong

for one human being to encompass the life of another.” Dig.

1.1.3 (Florentinus, Institutes 1).

Centuries later, Thomas Aquinas likewise taught that

the “act [of killing another in self-defense], since one’s

intention is to save one’s own life, is not unlawful, seeing that

it is natural to everything to keep itself in ‘being,’ as far as

possible.” Summa Theologica, supra, pt. II-II, q. 64, art. 7. But

killing a just or innocent is wrong because “the life of the

righteous men preserves and forwards the common good.” Id.

art. 6, resp. Aquinas also noted that the fundamental right to

defense did not extend to tumultuously rising up against the

government in opposition to the “unity and peace of a people.”

Id. q. 42, art. 1. “[S]edition is contrary to the unity of the

multitude.” Id. q. 42, art. 2. Citing to Augustine, Aquinas

10

defines “sedition” as being against “the assembly of those who

are united together in fellowship recognized by law and for the

common good,” making “sedition . . . opposed to justice and

the common good.” Id.; see also 2 St. Augustine, City of God,

Book II, ch. 21, at 75–76 (Marcus Dods, ed. & trans.,

Edinburgh, Murray & Gibb 1871) (defining “the people” as

“being not every assemblage or mob, but an assemblage

associated by a common acknowledgment of law, and by a

community of interests”). But “[t]hose, however, who defend

the common good, and withstand the seditious party, are not

themselves seditious, even as neither is a man to be called

quarrelsome because he defends himself.” Summa Theologica,

supra, pt. II-II, q. 42, art. 2.10

These elementary sources teach that persons have a

fundamental right to use arms to preserve innocent human life.

But this liberty cannot be used harm another human life, or to

rebel against a just government. Taken together, these

principles instruct that the natural right of self-preservation

does not extend to bearing arms in a manner that undermines

the common good.

10

This principle does not criminalize individuals of the

community from uprising against a tyrannical government. A

“tyrannical government is not just, because it is directed, not to

the common good, but to the private good of the ruler.” Summa

Theologica, supra, pt. II-II, q. 42, art. 2. So “there is no sedition

in disturbing a government of this kind.” Id.; see also

McWilliam, supra, at 154 (“Resistance to an unjust ruler is also

an application of the ius naturale principle of

self-defense. . . . As such, the natural law has a deep

condemnation for unjust rulers who act for their own private

good rather than for the common good and justice of all.”).

11

B.

English practices applied and developed these

principles. Blackstone pointed out that the right of all

Englishmen to “hav[e] arms for [one’s] defence” is rooted in

“the natural right of resistance and self-preservation.” 1

Blackstone, Commentaries *143–44.11 It was a “birthright,” 1

Blackstone, Commentaries *140, that “appertain[ed] to every

Englishmen,” id. at *136, an “ancient right[] and libert[y],”

later codified by Parliament in the English Bill of Rights in

1689, see Bill of Rights, 1 W. & M. Sess. 2 c. 2 (“[S]ubjects

which are Protestants may have arms for their defence suitable

to their conditions and as allowed by law.”). John Locke

echoed similar points, explaining that “by the fundamental law

of nature . . . one may destroy a man who makes war upon

him . . . for the same reason that he may kill a wolf or a lion;

because such men are not under the ties of the common law of

reason, have no other rule, but that of force and violence.” John

Locke, Second Treatise of Government, § 16 (1690). This

11

See also William Blizard, Desultory Reflect on

Police: With an Essay on the Means of Preventing Crimes and

Amending Criminals 59–60 (London, 1785) (“The right of his

majesty’s Protestant subjects, to have arms for their own

defence, and to use them for lawful purposes, is most clear and

undeniable. It seems, indeed, to be considered, by the ancient

laws of this kingdom . . . . [This right is] most

unquestionabl[e] . . . [and] most clearly established by the

authority of judicial decisions and ancient acts of parliament,

as well as by reason and common sense.”); 3 Blackstone,

Commentaries *3–4 (“Self-defence, therefore, as it is justly

called the primary law of nature, so it is not, neither can it be

in fact, taken away by the law of society.”).

12

comports with reason that “man [must] be preserved as much

as possible,” but “when all cannot be preserved, the safety of

the innocent is to be preferred.” Id.

But English history reflects the ancient prohibition on

men exercising their fundamental rights to intentionally harm

the life or safety of another, or to rebel against a just

government.

1. For example, kings prohibited using arms against the

community, with violators subject to disarmament. Alfred the

Great proscribed violent acts with arms.12 The Statute of

Northampton, 2 Edw. 3, c. 3, followed in 1328 to address the

dangers from “[b]ands of malefactors, knights as well as those

of lesser degree,” that “harried the country, committing

assaults and murders,” and the resulting “spirit of

insubordination.” K. Vickers, England in the Later Middle

Ages 107 (C. Oman ed., 4th ed. 1926); see also Edward Coke,

The Third Part of the Institutes of the Laws of England 160

(London, M. Flesher 1644) (“For in those daies this deed of

Chivalry was at random, whereupon great perill ensued . . . .”).

To enforce the Statute, Edward III ordered sheriffs to

investigate “the malefactors who have made assemblies of

men-at-arms or have ridden or gone armed in his bailiwick,

contrary to the statute and the king’s proclamation.” Letter to

12

See The Laws of King Alfred the Great §§ 7, 19, 38

(c. 878), reprinted in 3 The Whole Works of King Alfred the

Great 119, 127, 129, 133 (Oxford, Messrs J.F. Smith & Co.

1852) (prohibiting “fight[ing]” or “draw[ing] out his weapon”

in the “king’s hall,” “lend[ing] [one’s] weapon to another,”

with the intent that the borrower would “slay a man with it,”

use, by “a sword-whetter,” of another’s weapon to commit a

crime, and “disturb[ing] the folk-mote with weapon drawing”).

13

Keeper and Justices of Northumbridge (Oct. 28, 1332),

reprinted in 2 Calendar of the Close Rolls, Edward III,

1330–1333 610 (H.C. Maxwell Lyte ed., London, Eyre &

Spottswood 1898). The Statute allowed the sovereign to

“punish people who go armed to terrify the King’s subjects.”

Sir John Knight’s Case (1686) 87 Eng. Rep. 75, 76; 3 Mod.

117, 118 (KB). That was “likewise a great offence at the

common law, as if the King were not able or willing to protect

his subjects.” Id. The Statute of Northampton thus followed the

path of the classical law, demonstrating the right to carry arms

could not license a right to cause public terror. See Bruen, 597

U.S. at 45–46; United States v. Williams, 113 F.4th 637, 650

(6th Cir. 2024); Kanter v. Barr, 919 F.3d 437, 456–57 (7th Cir.

2019) (Barret, J. dissenting), abrogated by Bruen, 597 U.S. at

70–71.

But the Statute did not displace the right of using arms

for self-defense and continued the understanding that an

individual “may not onely use force and armes” but also

“assemble his friends and neighbors to keep his house against

those that come to rob, or kill him, or to offer him violence.”

The Third Part of the Institutes of the Laws of England, at

161–62. Use of force to oppose unlawful force is “by

construction excepted out of this [Statute]” because the laws

permit the taking up of arms against armed persons. Id. at 162

(“Armaque in Armatos sumere jura sinunt.”). As a result,

individuals with the “intent to defend themselves against their

adversaries, are not within the meaning of this Statute, because

they do nothing in terrorem populi.” 2 William Hawkins, A

Treatise of the Pleas of the Crown ch. 63, § 9, at 22 (7th ed.

1795).

Along with prohibiting affrays, the English surety

system dating back to the Saxons also grounded the right to

14

bear arms. See 4 Blackstone, Commentaries *252. Though

initially in the form of “decennaries or frank pledges” where

the community mutually promised for a person’s good

behavior, surety laws later converted into an individual offer

of security guaranteeing their own good behavior. Id.; see also

Rahimi, 144 S. Ct. 1899–1900. Under this system, “[a]ny

justices of the peace” could demand a surety “according to their

own discretion” or at the request of another provided “due

cause [was] shown.” 4 Blackstone, Commentaries *253.

Sureties were used to prevent two distinct types of future harm

by keeping the peace and ensuring good behavior. Id. at *251,

254–56. Sureties complemented recognizances,13 and “[a]ny

justice of the peace” could “bind all those to keep the peace[,]

who in his presence make any affray, or threaten to kill or beat

another, or contend together with hot and angry words, or go

about with unusual weapons or attendance, to the terror of the

people.” Id. at *254. Similarly, an individual could demand a

surety from another when he “hath just cause to fear” that

13

Recognizances for good behavior included “security

for the peace,” but also covered “somewhat more.” 4

Blackstone, Commentaries *256. Justices of the peace were

empowered “to bind over to the good behaviour towards the

king and his people” all individuals “that be not of good fame.”

Id. The general phrase “not of good fame,” described men that

acted “contra bonos mores,” meaning against good morals, or

“contra pacem” meaning against the peace. Id.; see id.

(elaborating that this phrase applied to men who kept the

company of “women of bad fame,” those who “tend[] to

scandalize the government,” those who “abuse the officers of

justice,” “common drunkards,” or “eaves-droppers”). All

showing the moral basis for regulation to preserve the common

good.

15

another in the community would “do him a corporal injury, by

killing, imprisoning[,] or beating him.” Id. at *255.

Accordingly, regardless of whether surety laws serve as

proper historical evidence supporting disarmament before an

individualized conviction of a violent crime, see Rahimi, 144

S. Ct. at 1938–42 (Thomas, J., dissenting), the surety system

illustrates the long-standing idea that liberty cannot be used for

lawless violence, consistent with the natural law principles

prohibiting individuals from exercising their right to bear arms

to tarnish the shared life or dignity of the community.

2. English law also curtailed the right to bear arms of

individuals suspected of treason or sedition against the

sovereign. The Militia Act of 1662 authorized officers of the

Crown to disarm any individual that either a Lieutenant or two

or more Deputies “judge[d] dangerous to the Peace of the

Kingdome,” to “[s]ecure the Peace of the Kindgome.” City of

London Militia Act 1662, 14 Car. 2, c. 3, § 13. In practice, the

law was used to confiscate arms from anyone threatening the

absolute rule of King Charles II. See Stephen P. Halbrook, The

Right to Bear Arms: A Constitutional Right of the People or a

Privilege of the Ruling Class? 35–36, 60–61 (2021).

Similarly, the Game Act of 1670 imposed a property

requirement for gun ownership, and effectively disarmed most

commoners. 22 & 23 Car. 2, c. 25 (1670); The Right to Bear

Arms, supra, at 36. As Blackstone explains, “prevention of

popular insurrections and resistance to the government, by

disarming the bulk of the people . . . is a reason oftener meant

than avowed by the makers of forest or game laws.” 2

Blackstone, Commentaries *412. And both laws were often

used to disarm persons presumed disloyal, including

Protestants under Charles II and James II. That Every Man Be

16

Armed, supra, at 43; see The Somers Papers, in 2

Miscellaneous State Papers from 1501–1726 at 407, 417–18

(W. Strahan and T. Cadell 1778).

But arbitrary use of this power left James II exiled,

William and Mary on the throne, and Catholics disarmed under

Protestant rule. See 1 W. & M. c. 15, § 4 (1688) (requiring all

Catholics and presumed Catholics to swear loyalty to the

Crown or forfeit their arms); see also The Right to Bear Arms,

supra, at 60; Bill of Rights, 1 W. & M. Sess. 2 c. 2, § 7 (1689)

(codifying that only Protestants may have arms for

self-defense). Under the reign of William and Mary, there was

“cause to fear that a person, although technically an English

subject, was because of his beliefs effectively a resident enemy

alien liable to violence against the king.” See C. Kevin

Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv.

J.L. & Pub. Pol’y 695, 723 (2009). Any such violence was

considered treason because it would “affect the supreme

executive power,” “amount[ing] either to a total renunciation

of that allegiance, or at the least a criminal neglect of that duty,

which is due from every subject to his sovereign.”

4 Blackstone, Commentaries *75. As a result, “being Roman

Catholic was equated with supporting James II and thus with

presumptive treason.” Marshall, 32 Harv. J.L. & Pub. Pol’y at

721. This is because Roman Catholics essentially

“acknowledge[d] a foreign power, superior to the sovereignty

of the kingdom,” and thus they “[could not] complain if the

laws of that kingdom [did] not treat them upon the footing of

good subjects.” 4 Blackstone, Commentaries *55. But despite

this presumption, disarmament did not occur until an

individual declined to swear an oath of loyalty to the Protestant

king. Id. at 722–23. And even upon such refusal, an individual

could still keep “necessary [w]eapons . . . for the defence of his

17

House or person.” 1 W. & M. c. 15, § 3 (1688); see also Joyce

Lee Malcolm, To Keep And Bear Arms 122–23 (1994) (“They

assumed that everyone had a right to own firearms unless he

could be conclusively convicted of Catholicism. Even in this

time of danger, Catholics were considered to have a right to

own arms for their personal defence and the defence of their

households.”). This historical strife between Catholics and

Protestants reveals a fundamental principle about the right to

have arms for self-defense: the king could disarm classes of

people who posed true risk of sedition or treason to the

sovereign. 14

***

In sum, as reflected in the English Bill of Rights,

bearing arms for self-defense was a fundamental right,

originating from the laws of nature. But that right was

restricted by laws prohibiting the use of arms to intentionally

cause terror or harm to members of the community. And

government could disarm classes of people that posed an actual

risk of sedition or treason. These traditions follow the classical

14

Notably, groups that were disarmed as dangerous by

posing risk of sedition or treason differed from individuals

viewed as dangerous by causing intentional physical harm to

another. Rather than posing harms directly to the subjects of

the King, groups likely to revolt against the King posed a threat

to the Order of the King. See 4 Blackstone, Commentaries

*81–82 (“[T]reason” and “insurrection” amount to “a rebellion

against the state, an usurpation of the powers of government,

and an insolent invasion of the king’s authority.”). But “riot[s]”

or crimes imagined to a neighbor’s land, home, or life were

considered “no high treason” because they amount to “no

general defiance of the public government.” Id. at *82.

18

principles of self-preservation, disallowance of public harm,

and the elementary view that because government exists for the

common good of the community, it may defend its own

existence.

C.

These principles are reflected in our Founding and the

Second Amendment, exhibiting respect for the fundamental

right to bear arms and its natural limitation that one must not

use that liberty to subvert the common good.

Spanning from the colonial generation to the Founders,

history reveals that bearing arms for self-defense is rooted in

the natural law.15 Recounting British history, Samuel Adams

noted that James II disregarded the “natural, inherent,

divinely[,] hereditary[,] and indefeasible rights of [his]

subjects,” but praised the English constitution for restoring the

country’s “original principles” and noted that the “bill of

rights” “stands as a bulwark to the natural rights of subjects.”

Samuel Adams, Boston Gazette, Feb. 27, 1769, at 3, col. 1. The

natural right of self-defense was the core of John Adams’s

defense of the soldiers on trial for the Boston Massacre,

contending that “every private person is authorized to arm

himself, and on the strength of this authority, [he did] not deny

the inhabitants had a right to arm themselves at that time, for

their defence, not for offence.” 3 Legal Papers of John Adams

15

This truth is not a historic relic. Today, still

recognizing that certain rights predate government, “35 state

constitutions expressly declare that rights are inherent or

natural.” Nicholas J. Johnson et al., Firearms Law and the

Second Amendment: Regulation, Rights, and Policy 316

(Rachel E. Barkow et al., 3d ed. 2022).

19

248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); see also

id. at 245 (“The rules of the common law therefore, which

authorize a man to preserve his own life at the expence of

another’s, are not contradicted by any divine or moral law.”).

Adams explained that the right of self-preservation “is not only

our indisputable right, but our clearest duty, by the laws of

nature, this is interwoven in the heart of every individual.” Id.

at 244.

These principles influenced colonial America’s

collective declaration of independence from Great Britain.16

16

See Simeon Howard, A Sermon Preached to the

Ancient and Honorable Artillery Company in Boston (June 7,

1773), in 1 American Political Writing During the Founding

Era, 1760–1805 186, 201–02 (Charles S. Hyneman & Donald

S. Lutz eds., 1983) (“Men are bound to preserve their own

lives, as long as they can, consistently with their duty in other

respects” and are “bound both by the law of nature and

revelation, to provide in the best manner [they] can, for the

temporal happiness of [their] famil[ies]. . . . It is therefore an

act of benevolence to oppose and destroy that power which is

employed in injuring others; and as much, when it is that of a

tyrant, as of a wild beast.”); Thomas Paine, The Crisis I: These

Are the Times that Try Men’s Souls (Dec. 23, 1776), reprinted

in 1 The Complete Writings of Thomas Paine at 50, 55–56

(Phillip S. Foner, ed., 1945) (“[I]f a thief breaks into my house,

burns and destroys my property, and kills or threatens to kill

me, or those that are in it, and to ‘bind me in all cases

whatsoever’ to his absolute will, am I to suffer it? What

signifies it to me, whether he who does it is a king or a common

man; my countryman or not my countryman; whether it be

done by an individual villain, or an army of them?”).

20

Following the Revolution, several states recognized a right to

bear arms for self-defense rooted in the natural law. See The

Right to Bear Arms, supra, at 147–52 (detailing the specific

protections in Virginia, Pennsylvania, North Carolina,

Vermont, and Massachusetts declarations of rights); Nicholas

J. Johnson et al., Firearms Law and the Second Amendment:

Regulation, Rights, and Policy 309–17 (Rachel E. Barkow et

al., 3d ed. 2022) (same). So too with the Second Amendment,

which was “considered as the true palladium of liberty”

because “[t]he right of self defence is the first law of nature.”

1 Blackstone, Commentaries, app. at 300 (St. George Tucker

ed., 1803).

At the core of early America’s robust regard of the right

to bear arms was “the great natural law of self-preservation”

that gives rise to the necessity “for the defence of one’s person

or house.” Collected Works of James Wilson 1142 (discussing

the principles behind the Pennsylvania Constitution’s

protection of the right to bear arms that date back to the Saxon

era, where individuals “were bound” “to keep arms for the

preservation of the kingdom, and of their own persons”).

Affirming what reason suggests, American law holds that “a

man has a perfect right to his life, to his personal liberty, and

to his property,” thereby permitting a man “by force [to] assert

and vindicate those rights against every aggressor.” Essays of

Justice Story, supra, at 262. But the right to possess arms for

self-preservation has long been regulated to prohibit violence

against the people, and violence against the State—the same

the two limitations found in English history, and the classical

tradition.

1. Laws prohibiting use of arms to cause terror to

members of the community date back to colonial America. In

1736, a Justice of the Peace in Virginia provided that it is the

21

duty of “[e]very constable, as a Minister of the Justice,” to

“take away Arms from such who ride, or go, offensively

armed, in Terror of the People, and may apprehend the Persons,

and carry them, and their Arms, before a Justice of Peace.”

George Webb, The Office and Authority of a Justice of Peace

92–93 (Williamsburg, William Parks 1736). Justices of the

Peace in New Hampshire were instructed to do the same.17 If

“legal proof of any such offence” was presented, the justice

was permitted to “commit him to prison” and “cause his arms

or weapons to be taken away.” Acts and Laws of His Majesty’s

Province of New Hampshire ch. 11 § 5 (1771). And colonial

Massachusetts similarly prohibited “rid[ing] or go[ing] armed

Offensively.” Mass. Province Laws ch. 18, § 6 (1692).

These laws, which essentially copied the Statute of

Northampton, carried over into Founding-era America.18 Like

17

See Acts and Laws of His Majesty’s Province of New

Hampshire ch. 11 § 5 (1771) (“[E]very justice of the peace

within this province, may cause to be stayed and arrested all

affrayers, rioters, disturbers or breakers of the peace, or any

other that shall go armed offensively, to put his majesty’s

subjects in fear by threat[e]ning speeches.”).

18

For example, Virginia enacted a near duplicate of the

Statute: “No man, great nor small, of what condition soever he

be . . . go nor ride armed by night nor by day, in fair or markets,

or in other places, in terror of the county.” A Collection of All

Such Acts of the General Assembly of Virginia at 33 (Virginia,

Augustine Davis 1794). So too did North Carolina. See A

Collection of Statutes of the Parliament of England in Force in

the State of North Carolina 60–61 (New Bern, Francois-Xavier

Martin 1792) (“[N]o man great nor small, of what condition

soever he be, . . . [shall] bring no force in affray of peace, nor

22

the original, these statutes prohibited persons from going

armed to commit affrays or cause terror to the community.19

The English surety regime also persisted, allowing temporary

disarmament for violations. Rahimi, 144 S. Ct. at 1900–01. All

consistent with the traditional principle that the right to bear

arms for self-defense must not be abused to physically harm

members of the community.

2. Laws addressing danger to the State focused on

groups viewed as disloyal to the government. Take Beacon’s

Rebellion in 1676, when the rebels in James City County were

temporarily disarmed. See The Right to Bear Arms, supra, at

111–13; id. at 113 (“The restraint was only during the

rebellion. Now every man may bear arms.”). And during the

French and Indian War, Catholics who refused to swear an oath

of undivided allegiance were prohibited from possessing “in

his house or elsewhere” any “arms, weapons, gunpowder[,] or

to go nor ride armed by night nor by day, in fairs, markets nor

in the presence of the King’s Justices, or other ministers, nor

in no part elsewhere.”). The District of Columbia seemingly

proposed similar draft legislation, although it is unclear

whether that draft legislation ever carried force of law. See

Code of Laws for the District of Columbia: Prepared Under

the Authority of The Act of Congress of the 29th of April, 1816

253–54 (Washington, Davis & Force 1818).

19

Because affrays were considered “crimes against the

personal safety of the citizens,” Collected Works of James

Wilson 1138, as a penalty, individuals had to forfeit their

armour to the government. See Essays of Justice Story, supra,

at 97 (“The right of society to punish offences against its safety

and good order will scarcely be doubted by any considerate

person.”).

23

ammunition.” 7 William Waller Hening, The Statutes at Large;

Being a Collection of all the Laws of Virginia 36–37

(Richmond, Franklin Press 1820).20 Why? Because “Protestant

colonial governments feared that loyalty to the Pope would

cause Catholics to take up arms for France.” United States v.

Jackson, 85 F.4th 468, 471 (8th Cir. 2023) (Stras, J., dissenting

from denial of rehearing en banc).

Unsurprisingly, the Revolutionary War led to

widespread disarmament of loyalists. See Joseph G.S.

Greenlee, Disarming the Dangerous: The American Tradition

of Firearm Prohibitions, 16 Drexel L. Rev. 1, 61–63 (2024)

(detailing eight orders and laws disarming loyalists to

“suppress[]” “enemies to American Liberty,” one of which was

issued by George Washington). In New York, “any person or

persons” convicted of “having furnished the ministerial army

or navy . . . with provisions or other necessaries . . . shall be

disarmed.” Resolutions of September 1, 1775, reprinted in 1

Journals of the Provincial Congress, Provincial Convention,

Committee of Safety and Council of Safety of the State of New

York 131, 132 (Albany, Thurlow Weed 1842). South Carolina

prohibited any person from “bear[ing] arms against” or

20

See also Robert H. Churchill, Gun Regulation, the

Police Power, and the Right to Keep Arms in Early America:

The Legal Context of the Second Amendment, 25 L. & Hist.

Rev. 139, 157 (2007) (explaining that colonial Virginia “acted

to disarm Catholics” “not on the basis of faith” but on “the

basis of allegiance”); Johnson et al., supra, at 197

(summarizing Maryland laws that forbid possession of

firearms and ammunition by “Marylanders who refused to

swear loyalty to King George III” and legislation passed by the

lower house to disarm any “Papist within [the] Province”).

24

“opposing the measures of the Continental or Colony

Congress,” punishable by disarmament. Resolutions of March

13, 1776, reprinted in Journal of the Provincial Congress of

South Carolina, 1776 77, 77 (London, J. Almon 1776). And

Massachusetts disarmed any person convicted of “being

notoriously inimical to the cause of American Liberty.”

Resolutions of July 25 and July 26, 1776, reprinted in 1

American Archives: Fifth Series 588, 588 (Peter Force ed.,

1848). All show that those who committed the specific offense

of sedition or treason could be disarmed for a time.

3. Practices around the Founding reflect principles that

allowed disarmament of individuals who endangered the

community by physically harming another, and of individuals

who exhibited dangerousness by seeking to overthrow the

government. The Second Amendment’s ratification process

exhibits both the distinctiveness and enduring nature of these

two principles. At their state ratifying conventions,

Massachusetts, New Hampshire, and Pennsylvania each

proposed limiting language to the Second Amendment

arguably tied to dangerousness. See Kanter, 919 F.3d at 454

(Barret, J., dissenting) (noting that “each of these proposals

included limiting language arguably tied to criminality”).21

Language proposed in Pennsylvania and Massachusetts

reflects that those who breached the peace were proscribed

from bearing arms. In Massachusetts, Samuel Adams drafted

the following proposed amendment, “[T]hat the said

Constitution be never construed to authorize Congress . . . to

21

These proposed amendments are part of “[t]he best-

available-evidence” of “the practice in the early Republic.” Lee

J. Strang, Originalism’s Promise: A Natural Law Account of

the American Constitution 69 (2019).

25

prevent the people of the United States, who are peaceable

citizens, from keeping their own arms.” Massachusetts

Convention Journal (Feb. 6, 1788), reprinted in 6 The

Documentary History of the Ratification of the Constitution

1452, 1453 (John P. Kaminski et al. eds., 2000) (emphasis

added). “Peaceable citizens” were those who did not commit a

“breach of the peace,” meaning those who did not

“violat[e] . . . the public peace, as by a riot, affray, or any

tumult which is contrary to law, and destructive to the public

tranquility.” Breach, in 1 Noah Webster, An American

Dictionary of the English Language (New York, S. Converse

1828). And in Pennsylvania, twenty-one of the twenty-three

members who voted against ratification proposed the following

amendment: “That the people have a right to bear arms for the

defense 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.”

The Address and Reasons of Dissent of the Minority of the

Convention of the State of Pennsylvania to their Constituents

(Dec. 18, 1787), reprinted in 2 The Documentary History of

the Ratification of the Constitution 618, 623–24 (Merrill

Jensen et al. eds., 1976) (emphasis added). The natural reading

of these proposals is that “crimes committed” concern acts

posing a “real danger of public injury.” Kanter, 919 F.3d at 456

(Barrett, J., dissenting). This reading accords with the natural

law principle against taking innocent life that informs

American firearm regulations.

In contrast, the language proposed by New Hampshire

restricted the right to bear arms to those who had not engaged

in rebellion: “Congress shall never disarm any Citizen, unless

such as are or have been in actual Rebellion.” New Hampshire

26

Form of Ratification (June 21, 1788), reprinted in 28 The

Documentary History of the Ratification of the Constitution

376, 378 (John P. Kaminski et al. eds., 2017) (emphasis

added). Citizens who “are or have been in actual Rebellion” is

not synonymous with all felons or criminals. This proposal

targets individuals who committed the distinct crime of

rebellion, which means “taking up Arms against the Supreme

Power.” Rebellion, New Universal Etymological English

Dictionary (20th ed. 1763). But New Hampshire’s proposal

“does not say anything about disarming those who have

committed other crimes, much less nonviolent ones.” Kanter,

919 F.3d at 455 (Barrett, J., dissenting).

4. At least two distinct principles run continuous

throughout history from Cicero to Founding-era America.

First, the right to bear arms is not a license to physically harm

another. Second, an individual cannot exercise that right to

rebel against a just government ordered for the common good.

Penalty for acting adverse to either principle often amounted

to disarmament.22 These principles are the hallmark of our

Nation’s firearm regulations.

22

But such disarmament was not absolute, and I echo

Judge Roth’s call for greater executive review of petitions to

restore firearm rights, regardless of whether Congress provides

funding for 18 U.S.C. § 925(c). See Concurring Op. at 11 n.18;

see also Cross v. Buschman, No. 22-3194, 2024 WL 3292756,

at *5 (3d Cir. July 3, 2024) (Matey, J., concurring) (“The

Eighth Amendment binds all federal actors, and the President

has a duty to ensure his subordinates comply with the

Amendment’s demands.”). That is because “the President

holds an independent duty to ensure that the Constitution’s

guarantees are followed.” Cross, 2024 WL 3292756, at *5

27

Many reasonable minds read this history to support a

different answer, and only one broad principle: the legislature

can categorically disarm anyone labeled “dangerous.”23 But

that is too vague a conception of “dangerousness.” True, both

ideas contain types of dangerous individuals, and both center

on classifications designed, or at least recognized, by

government. But the type of danger posed, and the punishment

prescribed, makes the difference. Laws imposing class wide

disarmament were enacted during times of war or civil strife

(citing Gary Lawson & Christopher D. Moore, The Executive

Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267,

1287 (1996) (“Once the President has interpreted the law that

he has the power to enforce or execute, a second interpretative

stage emerges: the President must then determine whether the

law is consistent with the Constitution. The President, no less

than Congress or the courts, operates under the Constitution as

supreme positive law . . . . The need to interpret the

Constitution as a source of positive law, and to prefer the

Constitution to any other source of law with which it may

conflict, is as much a part of ‘[t]he executive Power’ vested in

the President as it is part of ‘[t]he judicial Power’ vested in the

federal courts. The Constitution is law, and the executive

power of law interpretation includes the power and duty to

interpret the Constitution.”)). All to say, it is time to examine

the Attorney General’s independent obligation to review these

petitions, as well as the propriety of continuing to delegate this

responsibility to the Justice Department’s Bureau of Alcohol,

Tobacco, Firearms and Explosives when that agency has been

thwarted from carrying out its duty.

23

See Williams, 113 F.4th at 656–57; United States v.

Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024); see also

Dissenting Op. at 6–8, 8 n.8.

28

where separate sovereigns competed for loyalty. See Jackson,

85 F.4th at 472 (Stras, J., dissenting from denial of rehearing

en banc) (“[T]he decades surrounding the ratification of the

Second Amendment showed a steady and consistent practice.

People considered dangerous lost their arms. But being a

criminal had little to do with it.”). And laws disarming an

individual for dangerous conduct harming another member of

the community centered on individualized review of specific

acts.24 Combining these principles to reach a higher level of

generality discounts the history and, most importantly,

disregards the natural law principles explaining why we

possess the right to bear arms.

D.

We have wandered far from the reason and spirit of the

Second Amendment. The first federal ban on felons possessing

firearms arrived one hundred and forty-seven years after the

24

In theory, the implications of both principles may not

be as siloed when assessing a facial challenge to § 922(g)(1).

For example, there are many individuals convicted of felonies

for sedition or murder, which could show that § 922(g)(1) may

not be unconstitutional in all contexts. See United States v.

Salerno, 481 U.S. 739, 745 (1987) (explaining that in a “facial

challenge to a legislative Act . . . the challenger must establish

that no set of circumstances exists under which the Act would

be valid”). But that is not the case here because Range asserts

an as-applied challenge. See United States v. Marcavage, 609

F.3d 264, 273 (3d Cir. 2010) (“An as-applied attack, in

contrast, does not contend that a law is unconstitutional as

written[,] but [rather] that its application to a particular person

under particular circumstances deprived that person of a

constitutional right.”).

29

Amendment’s ratification. The Federal Firearms Act,

§ 922(g)(1)’s predecessor, prohibited any individual convicted

of a “crime of violence” to possess a firearm or ammunition.

An Act to Regulate Commerce in Firearms, ch. 850, § 2(f), 52

Stat. 1250, 1251 (1938). Congress defined a “crime of

violence” 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 publishable by

imprisonment for more than one year.” Id. § 1(6). Disarming

individuals who exhibited that conduct made sense because

they engaged in conduct that harmed the physical safety of

individuals in the community. But twenty-three years later,

Congress swept in all felonies, not just crimes of violence, see

An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-

342 § 2, 75 Stat. 757, 757 (1961), thus abandoning reason,

which permitted disarmament of individuals to protect the

safety of the community or the existence of the government.

That hollowed place is where the enacted law remains today.

Such a law cannot be applied to Range who does not

exhibit behavior intentionally threatening the life or safety of

another. And there is no suggestion that Range threatens the

government’s existence with sedition or treason. So disarming

him is unnecessary to ensure the physical safety of the

community, or the continuity of government. See McWilliam,

supra, at 158 (“[O]ne must ask not only whether the statute

comports with the broader ius naturale principles, but also with

the general principles specifically determined within the

Second Amendment.”).

Because the majority correctly concludes that

§ 922(g)(1)’s application to Range is repugnant to the

30

fundamental principles captured by the Second Amendment, I

concur.

31

PHIPPS, Circuit Judge, concurring.

I join the Majority Opinion in full because this case may be

resolved on narrow grounds: there is no historical analogue for

permanently disarming a citizen based on a prior conviction for

food-stamp fraud.1 I write separately to point out additional

important “principles that underpin our regulatory tradition,”2

specifically those related to the liberties of a free people.

Application of these principles lends further support to the

outcome in this case and in future cases will balance and

safeguard the legal analysis so that it does not skew in favor of

disarmament.

Appreciation of these principles begins with a recognition

that the Founders were practical, prudent, and well-read.3 They

1

See N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 30

(2022) (“[W]hether modern and historical regulations impose

a comparable burden on the right of armed self-defense and

whether that burden is comparably justified are central

considerations when engaging in an analogical inquiry.”

(internal quotation marks omitted) (quoting McDonald v. City

of Chicago, 561 U.S. 742, 767 (2010))).

2

United States v. Rahimi, 602 U.S. 680, 692 (2024).

3

See Carl J. Richard, The Founders and the Classics: Greece,

Rome, and the American Enlightenment 53–168 (1994)

(detailing how the Founders used Roman and Greek history

and political thought to guide their critique of Britain and

design of America); id. at 118 (“Ancient history provided the

founders with a large body of information, knowledge which

they used both to make sense of the confusing events of their

day and to construct arguments for their political positions.”);

Donald S. Lutz, The Relative Influence of European Writers on

Late Eighteenth-Century American Political Thought, 78 Am.

Pol. Sci. Rev. 189, 192–95 (1984) (detailing the Founders’

fluency in Montesquieu, Blackstone, Locke, Hume, and

Beccaria, as well as Plutarch, Cicero, Livy, Tacitus, and Plato).

1

fled from and rebelled against a nation that took away the right

to keep and bear arms4 and that used its military to occupy

4

See Joyce Lee Malcolm, To Keep and Bear Arms: The

Origins of an Anglo-American Right 23–134 (1997) (tracing

English republicans’ disarming of Royalist sympathizers and

Catholics; the restored Royalists’ disarming of republicans and

the “disaffected”; the aristocracy’s disarming of commoners

with game laws enforceable by the aristocrats themselves; and

the renewed disarming of Catholics by a Protestant king and

then Protestants by a Catholic king, until the right was affirmed

in 1689); Stephen P. Halbrook, The Founders’ Second

Amendment: Origins of the Right to Bear Arms 9–74 (2008)

(detailing British attempts to disarm Colonists from the late

1760s, and the resistance up and down the colonies, until the

outbreak of hostilities); 1 James Burgh, Political

Disquisitions; or, An Enquiry into Public Errors, Defects, and

Abuses 464 (1775) (“A general exercise of the best of their

people in the use of arms, was the only bulwark of their

liberties.”); Leonard W. Levy, Origins of the Bill of Rights 138

(1999) (opining that Burgh’s Political Disquisitions “was

probably more influential in America than John Locke’s

work”); A Declaration by the Representatives of the United

Colonies of North America, Now Met in General Congress at

Philadelphia, Setting Forth the Causes and Necessity of Their

Taking Up Arms, reprinted in 37 Documentary History of the

Ratification of the Constitution and the Bill of Rights 49 (John

P. Kaminski et al. eds., 2020) (complaining to King George III,

alongside the last-ditch Olive Branch Petition, that Colonists

had “delivered up their arms” to be later returned, yet “the

Governor [of Massachusetts] ordered the arms . . . to be seized

by a body of soldiers”); id. at 46 (“Our forefathers, inhabitants

of the island of Great Britain, left their native land, to seek on

these shores a residence for civil and religious freedom.”);

St. George Tucker, 1 Blackstone’s Commentaries app. 300

(1803) (“In England, . . . the right of bearing arms is confined

to [P]rotestants, and the words suitable to their condition and

2

several American cities.5 The Founders wished to enshrine

that right in the core organic document of this Nation – our

Constitution.6 Of course, the Founders knew that firearms

were dangerous and capable of abuse. But an individual right

to keep and bear arms7 promotes self-defense and protects

degree, have been interpreted to authorize the prohibition of

keeping a gun . . . [s]o that not one man in five hundred can

keep a gun in his house without being subject to a penalty.”).

5

See generally Donald F. Johnson, Occupied America: British

Military Rule and the Experience of Revolution (2023)

(detailing British military occupations of Boston, New York,

Newport, Philadelphia, Charleston, and Savannah, and those

occupations’ catalyst effect upon revolutionary sentiment); see

also BOSTON, March 12., Bos. Gazette, Mar. 12, 1770, at 3

(counting three dead and eight wounded at the Boston

Massacre); L. Kinvin Wroth & Hiller B. Zobel, The Boston

Massacre Trials, 55 A.B.A. J. 329, 329 (1969) (reporting that

two of the wounded succumbed to their injuries, bringing the

death total to five).

6

See U.S. Const. amend. II; see also 3 Joseph Story,

Commentaries on the Constitution §§ 1890–91 (1833),

reprinted in 5 The Founders’ Constitution, supra, at 214 (“The

right of the citizens to keep and bear arms has justly been

considered, as the palladium of the liberties of a republic; since

it offers a strong moral check against the usurpation and

arbitrary power of rulers; . . . it is at present in England more

nominal then real, as a defensive privilege.”); William Rawle,

A View of the Constitution of the United States 125–26 (2d ed.

1829), reprinted in 5 The Founders’ Constitution, supra, at

214 (Philip B. Kurland & Ralph Lerner eds., 1987) (“No clause

in the Constitution could by any rule of construction be

conceived to give to congress a power to disarm the

people . . . .”).

7

See District of Columbia v. Heller, 554 U.S. 570, 595 (2008)

(“There seems to us no doubt, on the basis of both text and

3

against anarchy, rebellion, and foreign invasion.8 And so, the

right was sewn into our Nation’s founding fabric, with the

enemies of this Country and our individual liberties being the

ones who had most opposed it.9

It is against these principles – deeply against them – to flog

the historical record until it suggests some analogue or

principle justifying disarmament, no matter how abstracted,

attenuated, or ahistorical that analogue or principle may be. In

particular, it is a mistake to read the Second Amendment as

permitting the most extreme forms of disarmament in the

history of England and colonial America. While the Founders

adopted many venerable English legal principles and

traditions, such as those developed at common law and in

history, that the Second Amendment conferred an individual

right to keep and bear arms.”).

8

See, e.g., Burgh, supra note 4, at 401 (“And if the generality

of housekeepers were only half-disciplined, a designing prince,

or ministry, would hardly dare to provoke the people by an

open attack against their liberties . . . . But without the

people’s having some knowledge of arms, I see not what is to

secure them against slavery, whenever it shall please a daring

prince, or minister, to resolve on making the experiment. See

the histories of all the nations of the world.”); Richard Henry

Lee, Federal Farmer No. 3 (1787), reprinted in

19 Documentary History of the Ratification of the Constitution

and the Bill of Rights 219 (John P. Kaminski et al. eds., 2020)

(“[T]he yeomanry of the country . . . possess arms, and are too

strong a body of men to be openly offended . . . .”).

9

See, e.g., Halbrook, supra note 4, at 78–109 (recounting how,

after British soldiers executed civilians on their retreat from

Lexington and Concord, royal governors attempted to disarm

the people, and Great Britain placed an embargo on the

importation of arms to America).

4

equity,10 they broke ranks with the past in several respects. For

instance, titles of nobility were used in England, but the

Constitution expressly prohibits them.11 If that prohibition did

not include titles of nobility that were part of the English

historical tradition, then it would be close to meaningless.

Similarly, the Second Amendment cannot be read to permit the

extreme forms of disarmament used in England and colonial

America while under British rule; the Founders rejected those

forceful suppressions of their liberties.12 Nor do the

disarmament measures taken by the American States during

the Revolutionary War in response to a person’s refusal to take

a loyalty oath serve as useful analogues.13 As the Majority

10

See U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall

extend to all Cases, in Law and Equity . . . .”).

11

See U.S. Const. art. I, § 9, cl. 8 (“No Title of Nobility shall

be granted by the United States . . . .”).

12

See The Declaration of Independence para. 13 (U.S. 1776)

(“[The King] has kept among us, in times of peace, Standing

Armies without the Consent of our legislatures.”); id. para. 14

(“He has affected to render the Military independent of and

superior to the Civil power.”); id. para. 27 (“He is at this time

transporting large Armies of foreign Mercenaries to compleat

the works of death, desolation and tyranny . . . .”); id. para. 28

(“He has constrained our fellow Citizens taken Captive on the

high Seas to bear Arms against their Country . . . .”).

13

See, e.g., 4 Journals of the Continental Congress, 1774–1789

205 (Worthington Chauncey Ford ed., 1906) (calling upon the

States “immediately to cause all persons to be disarmed . . .

who are notoriously disaffected to the cause of America, or

who have not associated, and shall refuse to associate, to

defend, by arms, these United Colonies, against the hostile

attempts of the British fleets and armies”); G.A. Gilbert, The

Connecticut Loyalists, 4 Am. Hist. Rev. 273, 280–82 (1899)

(recounting Connecticut’s disarming those who spoke against

the Continental Congress and were “inimical” to the American

5

Opinion explains, ‘the people’ entitled to the right to keep and

bear arms consists only of citizens. So, a person who did not

wish to belong to the new American nation would hardly have

been one of ‘the people’ entitled to keep and bear arms. In

sum, the most relevant historical principles for disarming a

citizen are those grounded in the more stable and enduring

aspects of our legal tradition, such as the common law and

equity – as opposed to the principles underlying the excesses

of the Crown or Parliament or even those supporting

Revolutionary War measures in response to persons who

retained foreign allegiances.

cause); Act of Mar. 14, 1776, 1775–76 Mass. Acts ch. 21 §§ 1–

2, 8 (Massachusetts’s disarming all persons over sixteen not

being Quakers who would not adopt the American cause as

their own and swear to assist its defense); An Act Empowering

the Members of the Upper and Lower Houses of Assembly, to

Tender to Such of the Inhabitants as are Hereinafter

Mentioned, a Declaration, or Test, for Subscription (1776),

reprinted in 7 Records of the Colony of Rhode Island and

Providence Plantations in New England 566–68 (John Russell

Bartlett ed., 1862) (same); Act of May 1777, 177 Va. Acts

ch. 3, reprinted in 9 The Statutes at Large: Being a Collection

of All the Laws of Virginia 281–82 (William Waller Hening

ed., 1821) (disarming all who refused a loyalty oath and were

not excepted from taking it); Act of 1777, 1777 S.C. Acts ch. 6

§ 9, reprinted in 24 The State Records of North Carolina 90

(Walter Clark ed., 1905) (same); Resolution of Mar. 13, 1776,

reprinted in Journal of the Provincial Congress of South

Carolina, 1776 77–78 (1776) (disarming those who bore arms

against the Continental or Colony Congress, or opposed either,

and requiring a loyalty oath to be rehabilitated and rearmed);

An Ordinance Respecting the Arms of Non-Associators, 1776

Pa. Laws ch. 729 (July 19, 1776), reprinted in 9 The Statutes

at Large of Pennsylvania from 1682 to 1801 11 (James T.

Mitchell & Henry Flanders eds., 1903) (ordering the

disarmament of “non-associators”).

6

From that perspective, I see no historical analogue for the

lifetime disarmament of an otherwise free citizen. It is as

ancient as it is obvious that a person who is imprisoned or

otherwise confined does not have the right to bear arms for the

duration of confinement. Similarly, non-confined citizens who

are still within the criminal justice system through parole or

supervised release may have their freedoms, including the right

to bear arms, limited if justified as a penal measure. Critically,

in those circumstances, the loss of the right to bear arms is

effectuated through an adjudicative process with the

availability of the full panoply of constitutional rights for the

accused and the convicted – and there are procedures available

to directly appeal and collaterally challenge any infringement

of a constitutional right.14 But once a citizen repays his debt to

society, a legislative restriction on the right to keep and bear

arms based on nothing more than a prior conviction is without

relevant historical antecedent.15 And legislation permanently

14

Similar procedures are available in civil commitment

proceedings to protect against a permanent revocation of

liberty for persons with serious mental illnesses – a loss of

liberty may occur only as long as it is constitutionally justified,

and it must be subject to periodic review. See O’Connor v.

Donaldson, 422 U.S. 563, 575 (1975) (explaining that “even if

[a person’s] involuntary confinement was initially permissible,

it could not constitutionally continue after that basis no longer

existed” (citations omitted)); see Clark v. Cohen, 794 F.2d 79,

86 (3d Cir. 1986) (explaining that “due process require[s]

periodic reviews of [a person’s] continuing need for

institutionalization . . . because if the basis for a commitment

ceases to exist, continued confinement violates the substantive

liberty interest in freedom from unnecessary restraint” (internal

citation omitted)).

15

See Story, supra note 6, at §§ 1890–91 (“The right of the

citizens to keep and bear arms has justly been considered, as

the palladium of the liberties of a republic; since it offers a

strong moral check against the usurpation and arbitrary power

7

disarming a person who has already repaid his debt to society

is even further removed from our Founding-era heritage.16

of rulers; . . . it is at present in England more nominal then real,

as a defensive privilege.”); Rawle, supra note 6, at 125–26

(“No clause in the Constitution could by any rule of

construction be conceived to give to congress a power to

disarm the people . . . .”).

16

It is true that before enacting the felon-in-possession statute

in 1965, the Subcommittee to Investigate Juvenile

Delinquency of the Senate Judiciary Committee heard

testimony from Attorney General Katzenbach in which he

opined that “[w]ith respect to the second amendment, the

Supreme Court of the United States long ago made it clear that

the amendment did not guarantee to any individuals the right

to bear arms.” Federal Firearms Act: Hearings Before the

Subcomm. to Investigate Juv. Delinq., 89th Cong. 41 (1965)

(statement of Att’y Gen. Nicholas deBelleville Katzenbach);

see also id. (exhibit 7) (reporting with respect to the felon-in-

possession’s predecessor statute that “[a]t the time of the

passage of the National Firearms Act in 1934 and the

consideration and passage by Congress of the Federal Firearms

Act from 1935 to 1938, the second amendment was not

considered to be an obstacle” and advising that “[d]ecisions

applying Federal firearms legislation hold that the second

amendment was not, as the first amendment was, adopted with

individual rights in mind, but was a prohibition upon Federal

action which would interfere with the organization by States of

their militia”). That advice has not aged well. See Heller,

554 U.S. at 595 (2008), see also Op. Off. of Legal Counsel,

Whether the Second Amendment Secures a Legal Right 28

(2004) (“[T]he Second amendment secures a personal right of

individuals, not a collective right that may only be invoked by

a state or a quasi-collective right restricted to those persons

who serve in organized militia units.”). So there is more than

a hairline crack in the legal foundation for the felon-in-

possession statutory provision.

8

Thus, any law imposing a permanent restriction on “the right

of the people to keep and bear Arms”17 is constitutionally

suspect as a facial matter, and here, the application of

18 U.S.C. § 922(g)(1) to permanently disarm Bryan Range

after he repaid his debt to society for his food-stamp fraud

violates the Second Amendment.

17

U.S. Const. amend. II.

9

KRAUSE, Circuit Judge, concurring in the judgment, with

whom ROTH, Circuit Judge, joins in part.

When this case was previously before us, I urged that

we assess whether firearm regulations were constitutionally

permissible in the present by comparing historical analogues in

principle, not with precision. Hewing precisely to history and

tradition would only make sense in a world where “arms” still

meant muskets and flintlock pistols,1 and where communities

were still small and “close-knit.”2 In contrast, the firearms of

America today include semi-automatic handguns, assault

rifles,3 and high-capacity magazines; our population of more

than 330 million is mobile and far-flung; and, tragically, brutal

gun deaths and horrific mass shootings—exceeding 490 this

1

See Joseph Blocher & Eric Ruben, Originalism-by-Analogy

and Second Amendment Adjudication, 133 Yale L.J. 99, 153

(2023) (“Americans in 1791 generally owned muzzle-loading

flintlocks, liable to misfire and incapable of firing multiple

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 vul-

nerable to counterattack. Reloading took time, and thus one

person could not ordinarily kill dozens in seconds.”).

2

Stephanos Bibas, The Machinery of Criminal Justice 2

(2012).

3

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.”).

1

year—are a daily occurrence in our schools, our streets, and

our places of worship.4 After observing that the balancing of

public safety with the right to bear arms has historically been a

core function of the legislature in our system of separated

powers,5 that the balance Congress struck in 18 U.S.C.

§ 922(g)(1) by categorically disarming convicted felons6

comported with traditional legislative authority to impose even

4

See Mass Shootings in 2024, Gun Violence Archive,

https://www.gunviolencearchive.org/reports/mass-shooting (last

visited Dec. 23, 2024).

5

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.

Rev. 353, 371 (1978) (noting the “relative incapacity of adju-

dication to solve ‘polycentric’ problems”).

6

Section 922(g)(1) makes it illegal for anyone convicted of “a

crime punishable by imprisonment for a term exceeding one

year” to possess a firearm, unless the crime is a state misde-

meanor “punishable by a term of imprisonment of two years or

less” or relates to “antitrust violations, unfair trade practices,

restraints of trade, or other similar offenses relating to the reg-

ulation of business practices.” 18 U.S.C. §§ 921(a)(20),

922(g)(1). For ease of reference, this opinion refers to all

crimes covered by § 922(g)(1) as “felonies” and individuals

falling within § 922(g)(1)’s purview as “felons.”

2

greater deprivations like capital punishment, and that Congress

had provided mechanisms in 18 U.S.C. §§ 921(a)(20) and

925(c) by which an individual offender could seek to lift his

disability, I concluded that § 922(g)(1) was constitutional as

applied to all felons within its scope, and I dissented on that

basis. I also urged that, rather than proceeding on an offense-

by-offense basis and implying that § 922(g)(1) had never been

enforceable against a felon “like Range,”7 the majority instead

should make clear that Range had successfully challenged only

its future enforcement, in effect, lifting the disability that had

been lawfully imposed based on § 922(g)(1)’s rebuttable

presumption of constitutionality.

Since then, the Supreme Court decided United States v.

Rahimi, 144 S. Ct. 1889 (2024), and vacated and remanded our

Court’s en banc decision for reconsideration in light of its

teachings.8 I take from Rahimi several lessons that compel a

different rationale than the majority’s today and that lead me

now to concur in the judgment.

The first three confirm the premises of my prior

opinion: (1) we should indeed determine “whether the

challenged regulation is consistent with the principles that

underpin our regulatory tradition”—not whether it “precisely

match[es] its historical precursors,” id. at 1898 (emphasis

added); (2) the Second Amendment does permit “the

enactment of laws banning the possession of guns by

categories of persons thought by a legislature to present a

special danger of misuse,” id. at 1901 (emphasis added), and

7

Range v. Attorney Gen. (Range I), 69 F.4th 96, 106 (3d Cir.

2023), judgment vacated sub nom. Garland v. Range, 144 S.

Ct. 2706 (2024).

8

See Garland, 144 S. Ct. at 2706–07.

3

in particular, “prohibitions . . . on the possession of firearms by

‘felons and the mentally ill,’” which the Court reiterated are

“presumptively lawful,” id. at 1902 (quoting District of

Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008)); and

(3) the availability of a greater penalty for an analogous offense

at the Founding implies that a lesser penalty is constitutional

today, e.g., “if imprisonment was permissible” at the Founding

for an offense, the “lesser restriction” of disarmament in

modern times “is also permissible,” id.

In addition, however, Rahimi also flagged two aspects

of a dispossession law as constitutionally relevant: first, that

the burden the law imposes has at least the potential to be “of

limited duration,” and, second, that—notwithstanding the

authority of legislatures to disarm entire “categories of

persons” presumed dangerous in the first instance—the law

allows an individual to challenge that presumption and

establish that he does not currently “present a special danger of

[firearm] misuse” or a “credible threat” to the safety of others.

Id. at 1901–02.9

9

The Court attached constitutional significance to these two

statutory attributes in the context of a law that prohibited pos-

session of a firearm only while “subject to a [domestic violence

restraining] order” that included “a finding that such person

represents a credible threat to the physical safety” of his do-

mestic partner (or child). 18 U.S.C. § 922(g)(8). It also cau-

tioned that its holding was a narrow one. See United States v.

Rahimi, 144 S. Ct. 1889, 1903 (2024) (“[T]oday . . . we con-

clude only this: An individual found by a court to pose a cred-

ible threat to the physical safety of another may be temporarily

disarmed consistent with the Second Amendment.”).

4

Notwithstanding these lessons, my colleagues in the

majority have treated the Supreme Court’s remand as

essentially pro forma and file an opinion today that is largely

unchanged. True, the majority now acknowledges that the

relief it provides Range is only prospective protection from

prosecution for “any future possession of a firearm,” and it

seemingly acknowledges that § 922(g)(1) may be categorically

applied, consistent with the Second Amendment, to at least

“physically dangerous” felons.10 But it still disavows

Congress’s power to categorically disarm other felons who fall

within § 922(g)(1)’s parameters, and to do so on a

presumptively permanent basis. It also still insists on

analyzing § 922(g)(1) on an offense-by-offense basis,

demanding that any historical analogue match with high

precision, rather than reasoning by principle. And it again

declines to articulate any clear framework by which courts may

distinguish between constitutional and unconstitutional

applications of § 922(g)(1).

These aspects of the majority opinion are in error. I

ultimately concur in the judgment, however, because Rahimi’s

reasoning persuades me that—even though our historical

tradition supports § 922(g)(1)’s categorical disarmament of all

Nonetheless, the repeated references to these attributes in the

majority and concurring opinions and their anchoring in histor-

ical tradition suggest they carry constitutional weight more

broadly. See, e.g., id. at 1902–03 (emphasizing the presence

of “judicial determinations,” “f[indings] by a court,” and that

those who posed a credible threat to the physical safety of an-

other were only “temporarily disarmed”); id. at 1908–10 (Gor-

such, J., concurring) (same); see also infra Section I.C.2.

10

Maj. Op. at 20; see also id. at 25.

5

felons on a presumptively permanent basis—the Second

Amendment demands that the disability it imposes has at least

the potential to be “of limited duration,” Rahimi, 144 S. Ct. at

1902, and that a felon have a meaningful opportunity, after

successfully serving his sentence,11 to show that the burden

should be lifted based on individualized findings. Indeed, the

same historical analogues demonstrating that those who

commit serious crimes can be disarmed as a class of persons

that presumptively “present[s] a special danger of misus[ing]”

firearms, id. at 1901, also confirm the necessity of providing

individual class members with a later opportunity to rebut that

presumption and reclaim their Second Amendment rights

going forward.

I write to clarify three points: First, the historical record

reveals that, contrary to the majority’s view, legislatures dating

back to the Founding had the authority to disarm not just

“physically dangerous” felons, but a wide range of groups

considered to present a special danger, while also allowing for

individual pre-enforcement challenges. Second, the majority’s

reasoning cannot be squared with Supreme Court and historical

precedent, and its continued insistence on historical twins

portends confusion and inconsistency among the district

courts. And third, while we hold today that Range’s

declaratory judgment entitles him to protection only for future

firearm possession, at least two circuits have suggested that

11

See United States v. Moore, 111 F.4th 266, 272 (3d Cir.

2024) (holding that § 922(g)(1) is constitutional as applied to

felons who are serving a criminal sentence on parole, proba-

tion, or supervised release because our historical tradition

“yield[s] the principle that a convict may be disarmed while he

completes his sentence and reintegrates into society”).

6

successful as-applied challenges operate retroactively, making

enforcement void ab initio and jeopardizing both pending

§ 922(g)(1) indictments and convictions on direct appeal. See

United States v. Williams, 113 F.4th 637, 657, 661–63 (6th Cir.

2024); United States v. Diaz, 116 F.4th 458, 461, 469–70 & n.4

(5th Cir. 2024). I take this opportunity to highlight the drastic

consequences of that approach and to explain why a

prospective approach comports with Bruen and Rahimi, is

faithful to our regulatory tradition, and is administrable in

practice.

I. The Historical Validity of § 922(g)(1)

More than a decade of precedent now illuminates the

constitutionality of felon-in-possession bans and the Supreme

Court’s methodology for reviewing them. The analysis that

follows will (A) summarize the Court’s pronouncements con-

cerning those bans, (B) survey the relevant regulatory tradition,

and (C) consider how § 922(g)(1) fits within that regulatory

tradition.

A. Felon-Dispossession Laws in the Court’s Recent

Precedent

Repeatedly, the Supreme Court has told us that felon-

in-possession statutes are presumptively constitutional. In

holding the “right of the people”12 protected by the Second

12

In the first part of its analysis, the majority defends its belief

that felons remain part of “the people,” so their firearm posses-

sion is presumptively protected, and the Government must

prove its disarmament regulation comports with historical tra-

dition. Maj. Op. at 11–16. Other jurists believe that historical

7

Amendment was an “individual right,” Justice Scalia’s seminal

opinion in Heller specified this meant “the right of law-abid-

ing, responsible citizens” to keep and bear arms, and therefore

characterized “prohibitions on the possession of firearms by

felons” as both “longstanding” and “presumptively lawful.”13

554 U.S. at 579, 592, 626, 627 n.26, 635.

In New York State Rifle & Pistol Association, Inc. v.

Bruen, the Court clarified who qualifies as a “law-abiding” cit-

izen when it explained that, despite the infirmity of New

York’s may-issue open-carry licensing regime, “nothing in our

analysis should be interpreted to suggest the unconstitutional-

ity of the 43 States’ ‘shall-issue’ licensing regimes . . . [,]

which often require applicants to undergo a [criminal] back-

ground check” and “are designed to ensure only that those

bearing arms in the jurisdiction are, in fact, ‘law-abiding,

tradition permits the disarmament of felons precisely because

“the people” historically meant “law-abiding, responsible citi-

zens.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1, 26 (2022) (citation omitted). But that debate—unlike

the test for what constitutes an adequate “historical analogue,”

id. at 30 (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).

13

See also McDonald v. City of Chicago, 561 U.S. 742, 786

(2010) (plurality) (“repeat[ing] those assurances”); Bruen, 597

U.S. at 72 (Alito, J., concurring) (same); id. at 80–81 (Ka-

vanaugh, J., concurring) (same).

8

responsible citizens.’”14 597 U.S. 1, 38 n.9 (2022) (quoting

Heller, 554 U.S. at 635). And it directed us, in considering

whether modern-day regulations are consistent with historical

ones, to compare “how and why the regulations burden a law-

abiding citizen’s right to armed self-defense.” Id. at 29 (em-

phasis added).

Most recently, in Rahimi, the Court reiterated that the

Constitution does not prohibit regulations that ban “the posses-

sion of firearms by ‘felons and the mentally ill,’” which the

Court held “presumptively lawful” even as applied to the

“core”15 right of self-defense inside the home. 144 S. Ct. at

1902 (quoting Heller, 554 U.S. at 626, 627 n.26). Citing Hel-

ler’s own assurance about the presumptive constitutionality of

felon-dispossession laws, the Court disavowed any suggestion

“that the Second Amendment prohibits the enactment of laws

banning the possession of guns by categories of persons

thought by a legislature to present a special danger of misuse.”

Id. at 1901. And it again told us to focus our historical analysis

on “a law-abiding citizen’s” right to bear arms. Id. at 1932

(Thomas, J., dissenting) (quoting Bruen, 597 U.S. at 29). Thus,

time and again, the Supreme Court has acknowledged that the

deep roots of felon-possession bans in American history impart

a presumption of lawfulness to § 922(g)(1).

14

Those background checks screen for both violent and non-

violent 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).

15

District of Columbia v. Heller, 554 U.S. 570, 630, 634

(2008).

9

As to methodology, Rahimi was also instructive, clari-

fying that “the appropriate analysis involves considering

whether the challenged regulation is consistent with the prin-

ciples that underpin our regulatory tradition,” 144 S. Ct. at

1898 (emphasis added), and that “if imprisonment was permis-

sible” as a penalty for an offense at the Founding, “the lesser

restriction” of disarmament imposed by a modern analogue “is

also permissible,” id. at 1902. There, the Court derived the rel-

evant principles from “two distinct legal regimes”—surety

laws and going armed laws—“[t]aken together.” Id. at 1899,

1901. Even though the regulation at issue, § 922(g)(8), was

“by no means identical to these founding era regimes,” the

Court emphasized that “it does not need to be,” id. 1901, be-

cause a regulation that “does not precisely match its historical

precursors . . . ‘still may be analogous enough’” to withstand

constitutional scrutiny. id. at 1898 (quoting Bruen, 597 U.S. at

30). Rather than seeking out a “dead ringer” or “historical

twin,” we were instructed to determine whether the modern-

day regulation “comport[s] with the principles underlying the

Second Amendment” by considering whether the challenged

regulation is “‘relevantly similar’ to laws that our tradition is

understood to permit.” Id. at 1898 (quoting Bruen, 597 U.S. at

29).

B. Relevantly Similar Historical Analogues

When we go to compare “relevantly similar” laws, “not

all history is created equal.” Bruen, 597 U.S. at 34. Founding-

era laws “surrounding the ratification of the text” are generally

considered to be “the history that matters most,” Rahimi, 144

S. Ct. at 1924 (Barrett, J., concurring), because Second

Amendment rights “are enshrined with the scope they were un-

derstood to have when the people adopted them,” Heller, 554

U.S. at 634–35. But we also look to “English history dating

10

from the late 1600s, along with American colonial views lead-

ing up to the founding,” Bruen, 597 U.S. at 20, because the

right to keep and bear arms was a “pre-existing right,” id.

(quoting Heller, 554 U.S. at 592). In addition, post-enactment

history and tradition “through the end of the 19th century” is a

“critical tool” for determining the principles underlying the

Second Amendment. Id. at 35 (quoting Heller, 554 U.S. at

605).16

Here, the Government identifies two sets of relevantly

similar laws from which comparable principles can be derived:

(1) laws that categorically disarmed entire classes of people,

and (2) felony punishment laws. I address each below before

16

The Supreme Court has approvingly cited and relied on post-

enactment sources in each of its recent Second Amendment

cases. See Rahimi, 144 S. Ct. at 1899–1901 (citing laws and

tradition from the early nineteenth century); Bruen, 597 U.S. at

50–57 & nn.15–24 (analyzing nineteenth-century laws and

cases); McDonald, 561 U.S. at 778 (Alito, J.) (“[I]t is clear that

the Framers and ratifiers of the Fourteenth Amendment

counted the right to keep and bear arms among those funda-

mental rights necessary to our system of ordered liberty.”);

Heller, 554 U.S. at 605 (“We now address how the Second

Amendment was interpreted from immediately after its ratifi-

cation through the end of the 19th century.”); see also Rahimi,

144 S. Ct. at 1915–16 (Kavanaugh, J., concurring) (“As the

Framers made clear, and as th[e] Court has stated time and

again for more than two centuries, post-ratification history . . .

can also be important for interpreting vague constitutional text

and determining exceptions to individual constitutional

rights.”); id. at 1924 (Barrett, J., concurring) (explaining that

“postenactment history can be an important tool”).

11

comparing the principles derived from these analogues to

§ 922(g)(1).

1. Categorical Disarmament Laws

a. England’s Restoration and Glori-

ous 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.17 Of course, not all nonconformists

were dangerous; to the contrary, many belonged to pacificist

denominations like the Quakers.18 However, they refused to

participate in the Church of England, an institution headed by

the King as a matter of English law.19 And nonconformists

17

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”).

18

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.”).

19

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).

12

often refused to take mandatory oaths acknowledging the

King’s sovereign authority over matters of religion.20 As a

result, Anglicans accused nonconformists of believing their

faith exempted them from obedience to the law.21

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.22

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.”23 This “predecessor to our Second

Amendment,” Bruen, 597 U.S. at 44 (quoting Heller, 554 U.S.

at 593), reveals that the legislature—Parliament—had the

authority to decide who was law-abiding enough to keep and

bear arms.24

20

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).

21

See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ v.

‘Antinomians’ in Restoration England, 67 J. Ecclesiastical

Hist. 325, 326, 334 (2016).

22

See Alice Ristroph, The Second Amendment in a Carceral

State, 116 Nw. U. L. Rev. 203, 228 (2021).

23

1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis added).

24

Cf. Lois G. Schwoerer, To Hold and Bear Arms: The English

Perspective, 76 Chi.-Kent L. Rev. 27, 47–48 (2000)

13

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.25 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.26 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

(explaining how the English Bill of Rights preserved Parlia-

ment’s authority to limit who could bear arms).

25

An Act for the Better Securing the Government by Disarm-

ing Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15

(Eng. 1689); see Malcolm, supra note 17, at 123.

26

See Diego Lucci, John Locke on Atheism, Catholicism, An-

tinomianism, and Deism, 20 Etica & Politica/Ethics & Pol.

201, 228–29 (2018). 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.” An Exhortation Concerning Good Order, and Obedi-

ence to Rulers and Magistrates, in Sermons or Homilies Ap-

pointed to Be Read in Churches in the Time of Queen Elizabeth

of Famous Memory 114, 125 (new ed., Gilbert & Rivington

1839).

14

“any two or more Justices of the Peace” to resume keeping

arms.27 But, needless to say, disavowal of religious tenets

hardly demonstrated that the swearing individual no longer had

the capacity to commit violence; rather, the oath signified

allegiance to the English government and an assurance of

conformity to its laws. This status-based disarmament of

Catholics evinces the “historical understanding”28 not only that

legislatures could categorically disarm groups they viewed as

unwilling to obey the law, but also that disarmed members had

an opportunity to prospectively regain their right to bear arms.

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 people

from owning guns,29 the colonies also repeatedly disarmed

27

1 W. & M., Sess. 1, ch. 15 (Eng. 1689).

28

Bruen, 597 U.S. at 26. That the same Parliament that enacted

the predecessor to our Second Amendment also passed laws

categorically disarming groups of people is particularly rele-

vant to our historical inquiry. See William Baude & Robert

Leider, The General-Law Right to Bear Arms, 99 Notre Dame

L. Rev. 1467, 1472 (2024) (explaining that early American

courts described the right to arms codified in “the English Bill

of Rights, the Second Amendment to the U.S. Constitution, and

various state constitutions as codifying the same preexisting

right”).

29

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

15

full-fledged members of the political community as it then

existed—i.e., free, Christian, white men—who the authorities

believed could not be trusted to obey the law. Those

restrictions are telling because they were imposed at a time

before the advent of the English Bill of Rights, when the

charters of Virginia and Massachusetts provided

unprecedented protections for colonists’ firearm rights.30

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,” Richard Barnes was “disarmed” by

the Virginia Council and “banished” from Jamestown.31 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,

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 1, at

165 (urging courts examining historical disarmament laws that

would violate the Constitution today to “ask[] why earlier gen-

erations disarmed certain groups of people, rather than asking

only whom they disarmed”).

30

See Nicholas J. Johnson et al., Firearms Law and the Second

Amendment: Regulation, Rights, and Policy 174 (3d ed. 2022).

31

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).

16

personal relationships with the divine.32 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.33 The colonial

government also disarmed at least fifty-eight of Hutchinson’s

supporters, not because those supporters had shown a

propensity for violence, but “to embarrass the offenders” who

were forced to personally deliver their arms to the authorities

in an act of public submission.34 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.35

Again, however, restoration of the right to bear arms

was available, but only prospectively, and only 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

32

See Edmund S. Morgan, The Case Against Anne Hutchinson,

10 New Eng. Q. 635, 637–38, 644 (1937).

33

Id. at 648; Ann Fairfax Withington & Jack Schwartz, The

Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226

(1978).

34

James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebel-

lion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988).

35

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

other shaming punishments used at the time, including scarlet

letters).

17

to retain their arms,” as they had shown that they could once

again be trusted to abide by the law.36

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, Governor

William Berkeley “acted quickly” to head off any

“[o]pposition to the king” by disarming them.37 And after the

Glorious Revolution, the American colonies followed

England’s example by disarming their Catholic residents.38

The colonies redoubled the disarmament of Catholics

during the Seven Years’ War of 1756–1763 based on their

perceived unwillingness to adhere to the King’s sovereign

36

Joseph G.S. Greenlee, The Historical Justification for Pro-

hibiting Dangerous Persons from Possessing Arms, 20 Wyo.

L. Rev. 249, 263 (2020).

37

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); see

Charles Campbell, History of the Colony and Ancient Domin-

ion of Virginia 211–12 (1860).

38

Just three years after designating Anglicanism as the col-

ony’s official religion, see George J. Lankevich, New York

City: A Short History 30 (2002), New York Governor Benja-

min Fletcher disarmed Catholic colonists in 1696, 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 University) (on file

with the Georgetown University Library).

18

dictates.39 Maryland, for example, though founded as a haven

for persecuted English Catholics,40 confiscated Catholics’

firearms and ammunition during the war.41 Notably, that

decision was not in response to violence; indeed, the colony’s

governor at the time observed that “the Papists behave

themselves peaceably and as good subjects.”42 Neighboring

Pennsylvania followed suit and took “all arms, military

accoutrements, gunpowder and ammunition” from all

Catholics and “reputed” Catholics.43 Virginia likewise

prohibited Catholics and “suspected” Catholics from owning

39

See Greenlee, supra note 36, at 263. Colonies disarmed

other religious minorities during the Seven Years’ War, too.

For instance, New Jersey confiscated firearms from Moravi-

ans, a group of nonconformist Protestants from modern-day

Germany, because the governor deemed their nonconformist

views sufficient evidence that they could not be trusted to obey

authority. See Johnson et al., supra note 30, at 198.

40

See Michael W. McConnell, The Origins and Historical Un-

derstanding of Free Exercise of Religion, 103 Harv. L. Rev.

1409, 1424 (1990).

41

See Acts of May 22, 1756, reprinted in 52 Archives of Mar-

yland: Proceedings and Acts of the General Assembly, Febru-

ary 1755 – October 1756, at 448–49, 454 (J. Hall Pleasants ed.,

1935) [hereinafter Md. Act of 1756]; Greenlee, supra note 36,

at 263; Johnson et al., supra note 30, at 197.

42

Elihu S. Riley, A History of the General Assembly of Mary-

land 224 (1912) (quoting a July 9, 1755 letter from Governor

Sharpe).

43

An Act for Forming and Regulating the Militia of the Prov-

ince of Pennsylvania, reprinted in 5 The Statutes at Large of

Pennsylvania from 1682 to 1801, at 627 (James T. Mitchell &

Henry Flanders eds., 1898) [hereinafter Pa. Act of 1757].

19

weapons or ammunition, declaring that it was “dangerous at

this time to permit Papists to be armed.”44

Again, these generalizations led to overinclusive bans.

Not all Catholics posed a threat of misusing their firearms.

That said, these laws reveal that legislatures had the authority

to disarm every member of a group based on class-wide

presumptions about law-abiding behavior. And under each

regime, Catholics who violated the ban and were caught in

possession of arms—whether or not they were dangerous—

were subject to severe penalties.

To account for this overbreadth, colonial governments

provided individual Catholics with the opportunity to

prospectively restore their armament rights by persuading a

government official that they themselves were unlikely to

misuse firearms. A Catholic in Virginia who “desire[d] to

submit and conform” could “present himself before the justices

of the peace,” and upon taking a loyalty oath “in open court,”

would “thenceforth be discharged of and from all disabilities

and forfeitures, which he might or should be liable to for the

future.”45 Similarly, a Catholic in Maryland who persuaded a

local justice of the peace that he was law-abiding and not

dangerous could keep weapons necessary for the defense of his

home.46 But Catholics under these regimes had to

affirmatively regain their right to possess arms before violating

44

An Act for Disarming Papists, and Reputed Papists, Refus-

ing to Take the Oaths to the Government, reprinted in 7 The

Statutes at Large; Being A Collection of All the Laws of Vir-

ginia 35–38 (William W. Hening ed., 1820) [hereinafter Va.

Act of 1756].

45

Id. at 38 (emphasis added).

46

Md. Act of 1756, supra note 41, at 448.

20

the disarmament law. Those discovered possessing firearms

without first lifting their firearm disability would be arrested,

imprisoned without bail, forced to forfeit all their weapons, and

subjected to onerous fines.47 In short, the restoration of

armament rights during the Colonial era occurred through pre-

enforcement actions, which provided prospective relief to law-

abiding challengers who complied with the disarmament law

and demonstrated that they did not pose a risk of misusing

arms.

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

revolutionaries48—argued that the replacement of individual

judgments of what behavior is acceptable with communal

47

Id. (proclaiming that a Catholic who violated the disarma-

ment law “shall forfeit and lose . . . his Heirs and Successors,

his and their said Armour, Gunpowder, and Ammunition; and

shall also be imprisoned”); see also Va. Act of 1757, supra

note 44, at 37 (punishing non-oath taking Catholics with for-

feiture of all their arms and ammunition, imprisonment without

bail, and fines); Pa. Act of 1757, supra note 43, at 627 (impos-

ing forfeiture and imprisonment without bail).

48

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, 588 U.S. 128, 153 (2019) (Gorsuch, J., dissenting) (ob-

serving “John Locke [was] one of the thinkers who most influ-

enced the framers[]”).

21

norms is an essential characteristic of the social contract.49

Members of a social compact, he explained, therefore have a

civic obligation to comply with communal judgments

regarding proper behavior.50

Drawing on Locke, state legislatures conditioned their

citizens’ ability to keep arms on compliance with that civic

obligation, and several states enacted statutes disarming all

those who refused to recognize the sovereignty of the new

nation.51 In Connecticut, for instance, as tensions with England

rose, 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.52

49

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”).

50

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.

51

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).

52

G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev.

273, 282 (1899) (describing this resolution as “a fair sample of

most of the others passed at this time”).

22

In 1776, most of the states heeded the Continental

Congress’s call to disarm those who “are notoriously

disaffected to the cause of America, or who have not

associated, and shall refuse to associate, to defend, by arms,

the[] United Colonies, against the hostile attempts of the

British fleets and armies,”53 by disarming those who did not

take a loyalty oath or were suspected of being disloyal.54

53

4 Journals of the Continental Congress, 1774–1789, at 205

(Worthington C. Ford ed., 1906).

54

See United States v. Jackson, 110 F.4th 1120, 1126–27 (8th

Cir. 2024); see, e.g., Act of May 1, 1776, ch. 21, §§ 1–2, re-

printed in 5 Acts and Resolves, Public and Private, of the Prov-

ince of Massachusetts Bay 479–80 (1886) (requiring every

non-Quaker “male person above sixteen years of age” to take

an oath of loyalty and disarming those who refused of “all such

arms, ammunition and warlike implements, as, by the strictest

search, can be found in his possession or belonging to him”)

[hereinafter Mass. Act of 1776]; Act of 1776, reprinted in 7

Records of the Colony of Rhode Island and Providence Plan-

tations in New England 566–67 (John R. Bartlett ed., 1862)

(disarming every male above sixteen years of age who refused

to take an oath of loyalty without providing “satisfactory rea-

sons” for their refusal) [hereinafter R.I. Act of 1776]; Act of

May 5, 1777, ch. 3, reprinted in 9 The Statutes at Large; Being

a Collection of all the Laws of Virginia 281–82 (William W.

Hening ed., 1821) (disarming “all free born male inhabitants of

this state, above the age of sixteen years, except imported serv-

ants during the time of their service” who refused to swear their

“allegiance” to the state) [hereinafter Va. Act of 1777]; Act of

Nov. 15, 1777, ch. 6, § 9, 1777 N.C. Sess. Laws 231–32 (de-

claring that “all persons failing or refusing to take the oath of

23

George Washington approved of these disarmament laws and

stated that “the other colonies ought to adopt similar”

measures.55

Pennsylvania in particular passed a flurry of laws

disarming entire groups whose status suggested they could not

be trusted to follow the law. In 1776, Pennsylvania ordered the

blanket disarmament of all “non-associators,” regardless of

whether they were disaffected to the cause of liberty.56 The

allegiance” that were not exiled “shall not keep guns or other

arms within his or their House” and that any such weapons

“may be seized by a written Order of a justice of the county”)

[hereinafter N.C. Act of 1777]; Resolution of Mar. 13, 1776,

in Journal of the Provincial Congress of South Carolina, 1776,

at 77–78 (1776) (disarming convicted non-associators unless

and until they took a loyalty oath) [hereinafter S.C. Res. of

1776]; Act of Sept. 20, 1777, ch. 40, § 20, in Acts of the Gen-

eral Assembly of the State of New-Jersey 90 (1777) (directing

the Council of Safety to “deprive and take from such Persons

as they shall judge disaffected and dangerous to the present

Government, all the Arms, Accoutrements and Ammunition

which they own or possess”).

55

Letter from George Washington to Governor Cooke (Jan. 6,

1776), in 3 The Writings of George Washington 323

(Worthington C. Ford ed., 1889).

56

Act of July 19, 1776, reprinted in 9 The Statutes at Large of

Pennsylvania from 1682 to 1801, at 11 (James T. Mitchell &

Henry Flanders eds., 1903) (ordering local officials to “take all

the arms . . . which are in the hands of non-associators in the

most expeditious and effectual manner”); Churchill, supra note

51, at 160 n.52 (“Pennsylvania ordered the blanket

24

following year, it gave all adult males an ultimatum—swear a

loyalty oath or “be disarmed” by local authorities.57 In 1778,

Pennsylvania amended the act to require all adult males who

refused or neglected to take an oath to “deliver up [their] arms”

to the state.58 Those who failed to comply and were caught

“carry[ing] . . . or keep[ing] any arms or ammunition in [their]

house or elsewhere” faced forfeiture of their arms and

disarmament which “continue[d] for and during the life of the

. . . offender.”59 Finally, in 1779, it authorized local officials

to disarm “any person” they “suspected to be disaffected to the

independence of this state.”60

These statutes are especially illuminating because

Pennsylvania’s 1776 constitution strongly protected the

disarmament of non-associators, dropping its [ ] distinction be-

tween the disaffected and well affected.”).

57

Act of June 13, 1777, reprinted in 9 The Statutes at Large of

Pennsylvania from 1682 to 1801, at 110–13 (James T. Mitchell

& Henry Flanders eds., 1903) [hereinafter Pa. Act of 1777].

58

Act of Apr. 1, 1778, reprinted in 9 The Statutes at Large of

Pennsylvania from 1682 to 1801, at 238–39, 242 (James T.

Mitchell & Henry Flanders eds., 1903) [hereinafter Pa. Act of

1778].

59

Id. at 242–43; see also Joseph Blocher & Caitlan Carberry,

Historical Gun Laws Targeting “Dangerous” Groups and

Outsiders, (manuscript at 9), https://papers.ssrn.com/sol3/pa-

pers.cfm?abstract_id=3702696 (explaining that “Pennsylvania

amended the act” in 1778 to make disarmament permanent).

60

Act of Mar. 31, 1779, reprinted in 9 The Statutes at Large of

Pennsylvania from 1682 to 1801, at 347–48 (James T. Mitchell

& Henry Flanders eds., 1903).

25

people’s right to bear arms.61 See Heller, 554 U.S. at 600–01

(relying on Pennsylvania’s “analogous arm-bearing right[]” to

“confirm[]” its interpretation of the Second Amendment);

Williams, 113 F.4th at 654 n.11 (“As of 1776, the Pennsylvania

Constitution protected the right to keep and bear arms, so pre-

Founding examples from that state are highly probative of the

federal right’s scope.”). Nonetheless, Pennsylvania deprived

sizable numbers of pacifists of that right, including Quakers,

Moravians, Mennonites, and other groups whose religious

convictions prohibited oath-taking.62 Those groups were not

disarmed because they were dangerous,63 but because their

refusal to swear allegiance demonstrated an unwillingness to

submit to communal judgments embodied in law when they

conflicted with personal conviction and thus posed a special

61

PA. Const. of 1776, Decl. of Rights, art. XIII (“That the peo-

ple have a right to bear arms for the defence of themselves and

the state.”); C. Kevin Marshall, Why Can’t Martha Stewart

Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 724 (2009).

62

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).

63

See Heller, 554 U.S. at 590 (“Quakers opposed the use of

arms not just for mili

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