Madison Lara v. Commissioner PA State Police

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-1832

_____________

MADISON M. LARA; SOPHIA KNEPLEY; LOGAN D.

MILLER; SECOND AMENDMENT FOUNDATION, INC.;

FIREARMS POLICY COALITION,

Appellants

v.

COMMISSIONER PENNSYLVANIA STATE POLICE

__________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. No. 2-20-cv-01582)

District Judge: Honorable William S. Stickman, IV

_______________

Submitted on the Briefs After Remand from the Supreme

Court of the United States

December 2, 2024

Before: JORDAN, RESTREPO and SMITH, Circuit Judges

(Filed January 13, 2025)

_______________

Adam Kraunt

Firearms Policy Coalition

1215 K Street – 17th Floor

Sacramento, CA 95814

John D. Ohlendorf [ARGUED]

Peter Patterson

Haley N. Proctor

David H. Thompson

Cooper & Kirk

1523 New Hampshire Avenue NW

Washington, DC 20036

Joshua Prince

Prince Law Offices

646 Lenape Road

Bechtelsville, PA 19505

Counsel for Appellants

Scott A. Bradley

Daniel B. Mullen [ARGUED]

Sarah J. Simkin

Office of Attorney General of Pennsylvania

Appellate Litigation Section

1251 Waterfront Place

Pittsburgh, PA 15222

Counsel for Commissioner Pennsylvania State Police

2

Janet Carter

Everytown Law

450 Lexington Avenue

P.O. Box 4148

New York, NY 10017

Lisa Ebersole

Cohen Milstein Sellers & Toll

1100 New York Avenue NW

West Tower, Suite 500

Washington, DC 20005

Counsel for Amicus Appellee

Everytown for Gun Safety Support Fund

Alex Hemmer

Office of Attorney General of Illinois

100 W. Randolph Street – 12th Floor

Chicago, IL 60601

Counsel for Amicus Appellee, State of Illinois

James P. Davy

P.O. Box 15216

Philadelphia, PA 19125

Counsel for Amicus Appellees

Giffords Law Center to Prevent Gun Violence

And Ceasefire Pennsylvania Education Fund

_______________

OPINION OF THE COURT

_______________

3

JORDAN, Circuit Judge.

Through the combined operation of three statutes, the

Commonwealth of Pennsylvania effectively bans 18-to-20-

year-olds from carrying firearms outside their homes during a

state of emergency. Madison Lara, Sophia Knepley, and

Logan Miller, who were in that age range when they filed this

suit, wanted to carry firearms outside their homes for lawful

purposes, including self-defense. Relying on the Second

Amendment to the U.S. Constitution, they, along with two gun-

rights organizations, sued the Commissioner of the

Pennsylvania State Police (the “Commissioner”) to stop

enforcement of the statutes, but the District Court ruled against

them.

They appealed the District Court’s order denying them

preliminary injunctive relief and dismissing their case. In

January 2024, we reversed and remanded for the District Court

to enjoin the Commissioner from arresting 18-to-20-year-olds

who violated the statutes. Lara v. Comm’r Pa. State Police, 91

F.4th 122, 140 (3d Cir. 2024), cert. granted, judgment vacated

sub nom. Paris v. Lara, No. 24-93, 2024 WL 4486348 (U.S.

Oct. 15, 2024). The Commissioner petitioned the Supreme

Court for certiorari review. In the meantime, the Supreme

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

which upheld the constitutionality of a federal firearms

regulation. The Supreme Court then granted the

Commissioner’s petition in this matter, summarily vacated our

judgment, and remanded the case to us for further

consideration in light of Rahimi.

According to the Supreme Court’s directive, we have

considered Rahimi and its clarification of the analysis outlined

4

in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1 (2022). We conclude that our prior analysis reflects the

approach taken in Bruen and clarified in Rahimi. We did

indeed consider “whether the challenged regulation is

consistent with the principles that underpin our regulatory

tradition[,]” not whether a “historical twin” of the regulation

exists. Rahimi, 602 U.S. at 692. Having determined that

Rahimi sustains our prior analysis, we will again reverse and

remand the District Court’s judgment. Much of what follows

is repetitive of our earlier decision, but we provide it as

background to the legal analysis and conclusions that follow.

I. BACKGROUND1

A. Pennsylvania’s firearm statutes

Under §§ 6106(a) and 6109(b) of the Pennsylvania

Uniform Firearms Act of 1995 (“UFA”), 18 Pa. Cons. Stat. §§

6101-6128, an individual may not carry a concealed firearm

without a license to do so and must be at least 21 years old to

apply for such a license. A concealed-carry license permits the

holder to carry a firearm even during a state of emergency. Id.

§ 6107(a)(2). Ordinarily, Pennsylvanians without a concealed-

carry license may carry openly, but § 6107(a) of the UFA

provides that “[n]o person shall carry a firearm upon public

streets or upon any public property during an emergency

proclaimed by a State or municipal governmental executive[.]”

Id. § 6107(a). Besides the exception for those with a

concealed-carry license, there are exceptions for those

“actively engaged in a defense” and those who qualify for one

1

The operative facts remain undisputed.

5

of fifteen other exceptions enumerated in § 6106(b).2 Id.

§ 6107(a)(1)-(2).

Taken together, §§ 6106, 6107, and 6109 – when

combined with a state or municipal emergency declaration –

have the practical effect of preventing most 18-to-20-year-old

adult Pennsylvanians from carrying firearms. When this suit

was filed in October 2020, “Pennsylvania had been in an

uninterrupted state of emergency for nearly three years” due to

gubernatorial proclamations related to the COVID-19

pandemic, the opioid addiction crisis, and Hurricane Ida.

(Comm’r Letter Br. at 4-5.) Perhaps out of weariness with the

ongoing emergency declarations, Pennsylvania amended its

constitution in 2021 to limit the governor’s authority to issue

such a declaration to twenty-one days, unless the General

Assembly votes to extend it. Pa. Const. art. IV, § 20.

Subsequently, all state-wide emergency declarations lapsed.

Certain county-wide emergencies have since been declared.3

2

For example, the exceptions permit individuals to

carry concealed firearms if they are in law enforcement, the

National Guard, or the military, and to transport firearms to and

from places of purchase and shooting ranges if the firearms are

not loaded. 18 Pa. Cons. Stat. § 6106(b). They do not,

however, provide the typical, law-abiding Pennsylvanian with

the option of carrying a loaded and operable firearm for most

lawful purposes, including self-defense.

3

For example, the governor issued emergency

proclamations when a portion of Interstate 95 collapsed in

Philadelphia County in June 2023 and when Tropical Storm

6

B. Proceedings below

The Appellants sued the Commissioner in his official

capacity,4 challenging as unconstitutional under the Second

Amendment the combined effect of §§ 6106, 6107, and 6109,

which, together with the then-ongoing state of emergency,

foreclosed them from carrying firearms in public places.5

They moved for a preliminary injunction in December

2020, and the Commissioner responded by moving to dismiss

under Federal Rule of Civil Procedure 12(b)(6). The District

Court denied the motion for a preliminary injunction and

granted the Commissioner’s motion to dismiss the case. Citing

this Court’s past decisions “giv[ing] broad construction to …

‘longstanding’ and ‘presumptively valid regulatory measures’

in the context of licensing requirements[,]” and the “broad

consensus” of decisions from other federal courts “that

Debby caused severe flooding in multiple Pennsylvania

counties in August 2024.

4

At the time the Appellants filed their complaint, the

Commissioner was Robert Evanchick. He has since been

replaced by Christopher Paris.

5

Besides facially challenging those provisions of the

UFA, the complaint also raised as-applied challenges. The

Appellants, however, have not articulated any as-applied

challenge in their briefs and have therefore forfeited those

claims. Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster

Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is

[forfeited] unless a party raises it in its opening brief[.]”).

7

restrictions on firearm ownership, possession and use for

people younger than 21 fall within the types of ‘longstanding’

and ‘presumptively lawful’ regulations envisioned by [the

Supreme Court in District of Columbia v. Heller, 554 U.S. 570

(2008),]” the District Court concluded that Pennsylvania’s

restrictions “fall outside the scope of the Second Amendment.”

(J.A. at 5, 20.)

The Appellants timely appealed. While their appeal

was pending, the Supreme Court decided Bruen. The parties

submitted additional briefing on Bruen’s impact, and we held

oral argument. As noted earlier, we reversed and remanded

with instructions to the District Court to enter an injunction

“forbidding the Commissioner from arresting law-abiding 18-

to-20-year-olds who openly carry firearms during a state of

emergency declared by the Commonwealth.” Lara, 91 F.4th

at 140. The Commissioner then petitioned the Supreme Court

for a writ of certiorari. After the Supreme Court decided

Rahimi, it granted the Commissioner’s petition, vacated our

decision, and remanded for further consideration. Lara, 2024

WL 4486348, at *1. The parties have provided us

supplemental briefing on the relevance of Rahimi to this

dispute.6

6

The Commissioner also filed a motion to remand the

case to the District Court, which we denied.

8

II. DISCUSSION7

A. Rahimi clarifies and applies Bruen’s two-part

test.

The Second Amendment, controversial in interpretation

of late,8 is simple in its text: “A well regulated Militia, being

7

When considering an appeal from the grant of a Rule

12(b)(6) motion, “we ‘accept all factual allegations as true,

construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.’”

Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir.

2017). When reviewing a district court’s refusal to grant a

preliminary injunction, we review the court’s findings of fact

for clear error, its conclusions of law de novo, and its ultimate

decision to deny the injunction for abuse of discretion. Am.

Express Travel Related Servs., Inc. v. Sidamon–Eristoff, 669

F.3d 359, 366 (3d Cir. 2012). Whether the Second

Amendment conflicts with the statutory scheme at issue here is

a question of law that we review de novo. Hernandez-Morales

v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020).

8

Compare, e.g., Joseph Blocher & Eric Ruben,

Originalism-by-Analogy and Second Amendment

Adjudication, 133 YALE L.J. 99, 105, 107 (2023) (“Although

there is still time for courts to develop workable standards (as

they did after [Heller]), post-Bruen cases reveal an erratic,

unprincipled jurisprudence, leading courts to strike down gun

laws on the basis of thin historical discussion and no

meaningful explanation of historical analogy. … Rahimi is an

9

necessary to the security of a free state, the right of the people

to keep and bear Arms, shall not be infringed.” U.S. Const.

amend. II. In its landmark Heller decision, the Supreme Court

held that, regardless of militia service, the Second and

Fourteenth Amendments guarantee to an individual the right to

possess a handgun at home for self-defense. 554 U.S. at 584,

592. The opinion addressed 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. Pertinent

here, the Court observed that the challenged law would be

unconstitutional “[u]nder any of the standards of scrutiny …

applied to enumerated constitutional rights.” Id. at 628-29.

We and other courts interpreted that observation as endorsing

a means-end scrutiny analysis in Second Amendment cases.9

ideal chance to fix some attendant doctrinal problems before

they spread further.”), with Nelson Lund, Bruen’s Preliminary

Preservation of the Second Amendment, 23 FEDERALIST SOC’Y

REV. 279, 289 (2022) (“[T]he Bruen majority [saw] that the

circuit courts were generally treating the Second Amendment

with dismissive hostility, as if it were a second-class provision

of the Bill of Rights.”).

9

See, e.g., Holloway v. Att’y Gen., 948 F.3d 164, 172

(3d Cir. 2020) (“If a challenger makes a ‘strong’ showing that

the regulation burdens his Second Amendment rights … then

‘the burden shifts to the Government to demonstrate that the

regulation satisfies’ intermediate scrutiny.”); Libertarian Party

of Erie Cnty. v. Cuomo, 970 F.3d 106, 128 (2d Cir. 2020)

(“Laws that ‘place substantial burdens on core rights are

10

We turned out to be wrong. In 2022, the Supreme Court

decided Bruen and squarely rejected “means-end scrutiny in

the Second Amendment context.” 597 U.S. at 19. It instead

announced a new two-step analytical approach. Id. at 17-19.

At the first step, a court determines whether “the Second

Amendment’s plain text covers an individual’s conduct[.]” Id.

at 24; see id. at 20 (explaining that the “‘textual analysis’

focuse[s] on the ‘normal and ordinary’ meaning of the Second

Amendment’s language” (quoting Heller, 554 U.S. at 576-

78)). If the text applies to the conduct at issue, “the

Constitution presumptively protects that conduct.” Id. at 24.

examined using strict scrutiny’; but laws that ‘place either

insubstantial burdens on conduct at the core of the Second

Amendment or substantial burdens [only] on conduct outside

the core … can be examined using intermediate scrutiny.’”)

(alteration in original); United States v. McGinnis, 956 F.3d

747, 754 (5th Cir. 2020) (“[A] ‘regulation that threatens a right

at the core of the Second Amendment’– i.e., the right to possess

a firearm for self-defense in the home – ‘triggers strict

scrutiny,’ while ‘a regulation that does not encroach on the core

of the Second Amendment’ is evaluated under intermediate

scrutiny.”); Worman v. Healey, 922 F.3d 26, 36 (1st Cir. 2019)

(“The appropriate level of scrutiny ‘turn[s] on how closely a

particular law or policy approaches the core of the Second

Amendment right and how heavily it burdens that right.’”);

Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011)

(“[A] severe burden on the core Second Amendment right of

armed self-defense will require an extremely strong public-

interest justification and a close fit between the government’s

means and its end.”).

11

At the second step, a court determines whether the law

in question “is consistent with the Nation’s historical tradition

of firearm regulation.” Id. If it is, the presumption made at the

first step of Bruen is overcome, and the restriction in question

can stand.

To aid the court in that second-step analysis, the

government bears the burden of identifying a “founding-era”

historical analogue to the modern firearm regulation. Id. at 24-

27. We are to look to the founding because “[c]onstitutional

rights are enshrined with the scope they were understood to

have when the people adopted them.” Id. at 34 (quoting Heller,

554 U.S. at 634-35). The question is “whether historical

precedent from before, during, and even after the founding

evinces a comparable tradition of regulation.” Id. at 27

(quoting Heller, 554 U.S. at 631) (internal quotation marks

omitted). In considering that precedent, however, we discount

“[h]istorical evidence that long predates” 1791 and “guard

against giving postenactment history more weight than it can

rightly bear.” Id. at 34-35.

A few months ago, the Supreme Court applied Bruen in

Rahimi and held that “an individual pos[ing] a credible threat

to the physical safety of an intimate partner” may be disarmed

while a restraining order is in effect. Rahimi, 602 U.S. at 690.

The Court reiterated that Bruen lays out the “appropriate

analysis” and requires a court to consider the principles behind

our nation’s history of firearm regulation. Id. at 692. That

inquiry requires a court to “ascertain whether the new law is

‘relevantly similar’ to laws our tradition is understood to

permit, ‘apply[ing] faithfully the balance struck by the

founding generation to modern circumstances.’” Id. (alteration

in original) (quoting Bruen, 597 U.S. at 29). But the present-

12

day regulation need not be a “dead ringer” or “historical twin”

of something from eighteenth-century America. Id. (quoting

Bruen, 597 U.S. at 30). Rather, “the appropriate analysis

involves considering whether the challenged regulation is

consistent with the principles that underpin our regulatory

tradition.” Id. As in Bruen, examining why and how the

regulation burdens the individual’s Second Amendment right

is central to the analysis. Id.

Bearing all that in mind, the Supreme Court held that

the statute at issue in Rahimi – namely one disarming a person

subject to a domestic violence restraining order – fit

“comfortably” within the Nation’s historical tradition of

firearm regulation, which, since the founding, has “included

provisions preventing individuals who threaten physical harm

to others from misusing firearms.”10 Id. at 690; see id. at 695-

98 (discussing founding-era surety and going armed laws).

The Court also concluded that the statute did not go too far in

regulating that conduct, as it disarms an individual only under

specific circumstances and for a certain period. Id. at 699.

In sum and to reiterate, at a high level, the test outlined

in Bruen and applied again in Rahimi requires two distinct

analytical steps to determine the constitutionality of a firearm

regulation. The court first decides whether “the Second

Amendment’s plain text covers an individual’s

conduct[.]” Bruen, 597 U.S. at 24. If it does, the government

10

The first step of the Bruen test was not at issue in

Rahimi. See United States v. Rahimi, 602 U.S. 680, 708 (2024)

(Gorsuch, J., concurring) (“[N]o one questions that the law [the

appellant] challenges addresses individual conduct covered by

the text of the Second Amendment.”).

13

must demonstrate that the challenged regulation is consistent

with the principles behind our Nation’s historical tradition of

firearm regulation. Rahimi, 602 U.S. at 691-92; Bruen, 597

U.S. at 24.

B. The Second Amendment’s reference to “the

people” covers all adult Americans.

In defense of the Pennsylvania statutes, the

Commissioner begins by arguing that 18-to-20-year-olds are

not among “the people” protected by the Second Amendment,

and so the Appellants’ challenge fails the first step of the Bruen

test. We considered this issue as a matter of first impression

during our first go-round in this case. Lara, 91 F.4th at 130-

32. Because the Supreme Court in Rahimi had no reason to

question whether the text of the Second Amendment covered

the individual disarmed in that case, 602 U.S. at 708 (Gorsuch,

J., concurring), and the Court otherwise preserved the first step

of the Bruen analytical approach, id. at 691, our analysis

remains the same.

To succeed on this point, the Commissioner must

overcome the strong presumption that the Second Amendment

applies to “all Americans.” Heller, 554 U.S. at 581. In Heller,

the Supreme Court reiterated that “the people … refers to a

class of persons who are part of a national community or who

have otherwise developed sufficient connection with this

country to be considered part of that community.” Id. at 580

(quoting United States v. Verdugo-Urquidez, 494 U.S. 259,

265 (1990)). The Court also explained that, like other

references to “the people” in the Constitution, “the term

unambiguously refers to all members of the political

community, not an unspecified subset.” Id. Accordingly, there

14

is “a strong presumption that the Second Amendment right …

belongs to all Americans.”11 Id. at 581.

Bruen affirmed the broad scope of the Second

Amendment, stating that the “Amendment guaranteed to ‘all

Americans’ the right to bear commonly used arms in public

subject to reasonable, well-defined restrictions.” 597 U.S. at

70 (quoting Heller, 554 U.S. at 581).12 And in Rahimi, the

Supreme Court clarified that, although it used the term

“responsible” in Heller and Bruen “to describe the class of

ordinary citizens who undoubtedly enjoy the Second

Amendment right[,]” it said nothing about the rights of those

not “responsible.” Rahimi, 602 U.S. at 701-02. The Court

went on to note that it is unclear what a rule based on so vague

an adjective as “responsible” would even entail. Id. at 701.

Taking our cue from the Supreme Court, we have

construed the term “the people” to cast a wide net. In Range v.

Attorney General, No. 21-2835, 2024 WL 5199447 (3d Cir.

Dec. 23, 2024), we recently considered an as-applied challenge

to the constitutionality of a federal statute that barred the

plaintiff-appellant from purchasing firearms because of a state-

level conviction for having made a false statement to obtain

food stamps. We held that the Supreme Court’s past references

11

Heller identified Second Amendment rightsholders at

various points as “Americans,” “all Americans,” “citizens,”

and “law-abiding citizens.” 554 U.S. 570, 580-81, 625 (2008).

12

Bruen also stated that the protections of the Second

Amendment extend to “ordinary, law-abiding, adult citizens.”

597 U.S. 1, 31 (2022).

15

to “law-abiding citizens” did not mean that a criminal

conviction removes an American citizen from “the people,”

especially in light of Rahimi’s caution against using a vague

and ambiguous concept to dictate the Second Amendment’s

applicability. Range, 2024 WL 5199447, at *4. Because other

constitutional provisions referring to “the people” do not

categorically exclude felons, we saw “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.”13 Id.

The Commissioner endeavors to sidestep that

conclusion by saying that, “[a]t the time of the Founding – and,

indeed, for most of the Nation’s history – those who were under

13

Our dissenting colleague categorizes any reference to

the definition of “the people” in Heller, Bruen, and Range as

dictum. Dissent at I.A. Dictum or not, we take the use of the

words “all Americans” in all three cases to mean that all

Americans are indeed guaranteed the right to bear arms under

the Second Amendment. As discussed more fully herein, the

question then becomes whether those who have not reached the

age of legal adulthood can, consistent with historical

precedent, be disabled from exercising that right, and we agree

with our colleague that the answer to that is certainly yes. But

that does not mean the definition of legal adulthood at the time

of the founding is the definition that should control today.

Using that earlier and more restrictive definition makes no

more logical sense than would restricting voting rights to those

who would have had such rights at the founding, thus

excluding from the franchise all but white, land-owning men

who are 21-years-of-age or older.

16

the age of 21 were considered ‘infants’ or ‘minors’ in the eyes

of the law[,]” “mean[ing] that they had few independent legal

rights.” (Comm’r Letter Br. at 8-9.) True enough. From

before the founding and through Reconstruction, those under

the age of 21 were considered minors. See, e.g., 1 William

Blackstone, Commentaries on the Laws of England 451

(Oxford, Clarendon Press 1765) (“So that full age in male or

female, is twenty one years … who till that time is an infant,

and so styled in law.”); 1 Zephaniah Swift, A System of the

Laws of the State Of Connecticut 213 (Windham, John Byrne

pub. 1795) (“Persons within the age of 21, are, in the language

of the law denominated infants, but in common speech –

minors.”); Infant, Black’s Law Dictionary (11th ed. 2019) (“An

infant in the eyes of the law is a person under the age of twenty-

one years[.]”) (quoting John Indermaur, Principles of the

Common Law 195 (Edmund H. Bennett ed., 1st Am. ed.

1878)). Notwithstanding the legal status of 18-to-20-year-olds

during that period, however, the Commissioner’s position is

untenable for three reasons.

First, it supposes that the initial step in a Bruen analysis

requires excluding individuals from “the people” if they were

so excluded at the founding. That argument conflates Bruen’s

two distinct analytical steps. Although the government is

tasked with identifying a historical analogue at the second step

of the analysis, Rahimi, 602 U.S. at 691-92, we are not limited

to looking through that same retrospective lens at the first step.

If, at step one, we were rigidly limited by eighteenth-century

conceptual boundaries, “the people” would consist solely of

white, landed men, and that is obviously not the state of the

17

law.14 Cf., id. at 691 (explaining that the Court’s Second

Amendment precedents “were not meant to suggest a law

trapped in amber”); Range, 2024 WL 5199447, at *6

(observing that founding-era gun restrictions based on “race

and religion” such as those on “Loyalists, Native Americans,

Quakers, Catholics, and Blacks” would now be

“unconstitutional under the First and Fourteenth

Amendments”).

Second, it does not follow that, just because individuals

under the age of 21 could not exercise certain legal rights at the

founding, they were excluded ex ante from the scope of “the

people.” One can be included as a member of that class and

still not be allowed to carry a gun. For example, as then-Judge

Barrett explained before Bruen, “[n]either felons nor the

mentally ill are categorically excluded from our national

community.” Kanter v. Barr, 919 F.3d 437, 453 (7th Cir.

2019) (Barrett, J., dissenting). But “[t]hat does not mean that

the government cannot prevent them from possessing guns.

Instead, it means that the question is whether the government

has the power to disable the exercise of a right that they

otherwise possess.” Id. (emphasis added).

Third, consistency has a claim on us. It is undisputed

that 18-to-20-year-olds are among “the people” for other

constitutional rights such as the right to vote (U.S. Const. art.

I, § 2; id. amend. XVII), freedom of speech, the freedom to

peaceably assemble and to petition the government (id. amend.

14

See Note, The Meaning(s) of ‘The People’ in the

Constitution, 126 HARV. L. REV. 1078, 1085 (2013) (“‘[T]he

people’ largely meant property-owning white adult males, at

least initially.”).

18

I), and the right against unreasonable searches and seizures (id.

amend. IV).15 Heller cautions against the adoption of an

inconsistent reading of “the people” across the Constitution.

554 U.S. at 580. Indeed, wholesale exclusion of 18-to-20-year-

olds from the scope of the Second Amendment would

impermissibly render “the constitutional right to bear arms in

public for self-defense … ‘a second-class right, subject to an

entirely different body of rules than the other Bill of Rights

guarantees.’” Bruen, 597 U.S. at 70 (quoting McDonald v.

Chicago, 561 U.S. 742, 780 (2010)).

We therefore reiterate our holding that 18-to-20-year-

olds are, like other subsets of the American public,

presumptively among “the people” to whom Second

Amendment rights extend.16

15

The three other provisions in the Constitution that

explicitly refer to “the people” are the preamble (“We the

People”), the Ninth Amendment (providing that no enumerated

constitutional right “shall … be construed to deny or disparage

others retained by the people”), and the Tenth Amendment

(providing “[t]he powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.”).

16

Four other federal appellate courts have determined

that 18-to-20-year-olds are among “the people” protected by

the Second Amendment. Rocky Mountain Gun Owners v.

Polis, 121 F.4th 96, 116 (10th Cir. 2024); Worth v. Jacobson,

108 F.4th 677, 692 (8th Cir. 2024); Hirschfeld v. ATF, 5 F.4th

407, 418-34 (4th Cir. 2021), vacated as moot, 14 F.4th 322 (4th

19

Cir. 2021); Jones v. Bonta, 34 F.4th 704, 717-21 (9th Cir.

2022), opinion vacated on reh’g, 47 F.4th 1124 (9th Cir. 2022).

Polis and Worth were decided after Rahimi. In Polis,

the Tenth Circuit held that a citizen under the age of 21 is part

of “the people” as defined by the Second Amendment for

similar reasons as we do here, including that “‘the people’ does

not seem to vary” across the Constitution. 121 F.4th at 116.

The Tenth Circuit rejected the argument that “the people”

excludes those without “full legal rights” at the founding by

comparing them to felons, who have “consistently been

disenfranchised from the Founding through modern day” but

are included in “the people.” Id. (citing Kanter v. Barr, 919

F.3d 437, 453 (7th Cir. 2019) (Barrett, J., dissenting)). The

Eighth Circuit in Worth trod similar ground. 108 F.4th at 689-

91. It also rejected reading the Second Amendment beyond its

plain text to exclude those considered “irresponsible” or below

a certain age limit. Id. at 691-92.

Hirschfeld and Bonta were decided before Bruen.

Hirschfeld was vacated as moot because the plaintiff turned 21

while the case was on appeal, 14 F.4th at 326-27, and Bonta

was vacated and remanded to the district court for

consideration in light of Bruen, 47 F.4th at 1125. Their

analyses are nevertheless instructive.

In Hirschfeld, the Fourth Circuit, after reviewing the use

of “the people” in the rights enumerated in the First and Fourth

Amendments, expressed its view that “it is hard to conclude

that 18-to-20-year-olds have no Second Amendment rights

where almost every other constitutional right affords them that

protection.” 5 F.4th at 424. In a variant on a familiar canon of

construction, the Fourth Circuit also explained that when the

20

C. The relevant historical timeframe

If there is any argument to be made under Rahimi that

the Commonwealth can restrict the rights of 18-to-20-year-olds

with respect to firearms, the Commissioner must make that

drafters of the Constitution and its amendments wanted to set

an age restriction, they did so explicitly:

[W]hile various parts of the Constitution include

age requirements, the Second Amendment does

not. The Founders set age requirements for

Congress and the Presidency, but they did not

limit any rights protected by the Bill of Rights to

those of a certain age. See U.S. Const. art. I, § 2

(age 25 for the House); id. art. I, § 3 (age 30 for

the Senate); id. art. II, § 1 (age 35 for the

President); cf. id. amend. XXVI (setting voting

age at 18). In other words, the Founders

considered age and knew how to set age

requirements but placed no such restrictions on

rights, including those protected by the Second

Amendment.

Id. at 421.

The Ninth Circuit in Bonta reached the same conclusion

about age limits, but on a different basis. It determined that the

Second Amendment “protects the right of the people to keep

and bear arms and refers to the militia. Young adults were part

of the militia and were expected to have their own arms. Thus,

young adults have Second Amendment protections as ‘persons

who are a part of a national community.’” Bonta, 34 F.4th at

724 (citing Heller, 544 U.S. at 580).

21

argument by showing that such a restriction is consistent with

the principles that underpin the Nation’s historical tradition of

gun regulation. Rahimi, 602 U.S. at 692. The Commissioner

sought to shoulder that burden, but, to determine whether he

succeeded in his task, we first must understand which time

period – the Second Amendment’s ratification in 1791 or the

Fourteenth Amendment’s ratification in 1868 – is the proper

historical reference point for evaluating the contours of the

Second Amendment as incorporated against the

Commonwealth. Again, we addressed this issue the first time

we considered this case.

The Bruen Court declined to resolve this timeframe

question because, in that case, the public understanding of the

Second Amendment right at issue was the same in 1791 and

1868 “for all relevant purposes.” 597 U.S. at 38. For the same

reason, it was also unnecessary to resolve the timeframe

question in Rahimi. 602 U.S. at 692 n.1. We, however, are

situated differently. While the Commissioner has not pointed

to an eighteenth-century regulation barring 18-to-20-year-olds

from carrying firearms, he says that there are “dozens of 19th

century laws restricting 18-to-20-year-olds’ ability to

purchase, possess and carry firearms[.]” (Comm’r Letter Br.

Reply at 7.) He has thus asserted, at least by implication, that

there is a conflict between regulatory burdens as they existed

in 1791 and 1868, respectively. We thus are obligated to

confront the choice of timeframe.17

17

The Supreme Court was able to avoid resolving this

question in Bruen and Rahimi because it could say that the

answer did not matter: the laws relevant to the Second

Amendment issue in each case were roughly the same in 1791

22

As in our earlier decision in this case, we begin with the

premise that the “individual rights enumerated in the Bill of

Rights and made applicable against the States through the

Fourteenth Amendment have the same scope as against the

Federal Government.” Bruen, 597 U.S. at 37; see also Ramos

v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (“There can be no

question either that the Sixth Amendment’s unanimity

requirement applies to state and federal criminal trials

equally.”); Timbs v. Indiana, 139 S. Ct. 682, 687 (2019)

(“Incorporated Bill of Rights guarantees are ‘enforced against

the States under the Fourteenth Amendment according to the

same standards that protect those personal rights against

federal encroachment.’”) (quoting McDonald, 561 U.S. at

765); Malloy v. Hogan, 378 U.S. 1, 10 (1964) (“We have held

that the guarantees of the First Amendment, the prohibition of

unreasonable searches and seizures of the Fourth

Amendment, and the right to counsel guaranteed by the Sixth

Amendment, are all to be enforced against the States under the

Fourteenth Amendment according to the same standards that

and 1868. Bruen, 597 U.S. at 38; Rahimi, 602 U.S. at 692 n.1.

But the Commissioner has forced the issue here by insisting

that the laws at the time Americans adopted the Fourteenth

Amendment would have allowed states to forbid people in the

Appellants’ position from having firearms, while at the same

time providing no evidence of a tradition of disarming 18-to-

20-year-olds at the time of the founding. By maintaining that

there is ample evidence from 1868 to support the Appellants’

disarmament, but offering none from the founding era, the

Commissioner is claiming that there is a difference between

how each generation understood the right, so we must pick

between the two timeframes.

23

protect those personal rights against federal encroachment.”)

(internal citations omitted).

Accordingly, the Commissioner must establish that the

Second Amendment – whether applied against a state or

federal regulation – is best construed according to its public

meaning at the time of the Fourteenth Amendment’s

ratification as opposed to the public meaning of the right when

the Second Amendment was ratified. Although neither Bruen

nor Rahimi definitively decided this issue, Bruen gave a strong

hint when it observed that there has been a general assumption

“that the scope of the protection applicable to the Federal

Government and States [under the Bill of Rights] is pegged to

the public understanding of the right when the Bill of Rights

was adopted in 1791.” Bruen, 597 U.S. at 37. In support, it

cited Crawford v. Washington, 541 U.S. 36, 42-50

(2004); Virginia v. Moore, 553 U.S. 164, 168-69 (2008);

and Nevada Commission on Ethics v. Carrigan, 564 U.S. 117,

122-25 (2011).

In those cases, the Court interpreted the bounds of the

Sixth, Fourth, and First Amendments, respectively, according

to their public meaning at the founding. In Crawford, which

considered the scope of the Confrontation Clause, the Court

observed that “[t]he right to confront one’s accusers is a

concept that dates back to Roman times,” but the emphasis in

the opinion was on “English common law” because it was

“[t]he founding generation’s immediate source of the

concept[.]” 541 U.S. at 43. Then in Moore, the Court

explained that, “[i]n determining whether a search or seizure is

unreasonable, we begin with history.” 553 U.S. at 168. That

history includes “the statutes and common law of the founding

era” and the understanding “of those who ratified the Fourth

24

Amendment.” Id. Finally, in Nevada Commission on Ethics,

the Court held that a Nevada statute requiring public officials

to recuse themselves from voting on certain matters did not

violate the First Amendment, and founding-era evidence was

“dispositive” in the analysis.18 564 U.S. at 122; see also id. at

121 (“Laws punishing libel and obscenity are not thought to

violate ‘the freedom of speech’ to which the First Amendment

refers because such laws existed in 1791 and have been in place

ever since.”).

While the Supreme Court has not held that all

constitutional rights that have been made applicable to the

states must be construed according to their public meaning in

1791, the Commissioner has still not articulated a theory for

defining some rights according to their public meaning in 1791

and others according to their public meaning in 1868. All that

the Commissioner has managed to muster is the observation

that “[i]n Rahimi, the Court clearly stated that the question of

whether ‘courts should primarily rely on the prevailing

understanding of an individual right when the Fourteenth

Amendment was ratified in 1868 when defining its scope’

remains unresolved.” (Comm’r Post-Rem. Supp. Br. at 21

(quoting Rahimi, 602 U.S. at 692 n.1)). A more complete

characterization of Rahimi would have been to fully quote the

Supreme Court’s statement that, just as in Bruen, there was no

reason for the Court to take up the question. This is how the

18

See also Printz v. United States, 521 U.S. 898, 905

(1997) (“[E]arly congressional enactments ‘provid[e]

contemporaneous and weighty evidence of the Constitution’s

meaning.’”) (quoting Bowsher v. Synar, 478 U.S. 714, 723-24

(1986)).

25

Court put it: “We explained [in Bruen] that under the

circumstances, resolving the dispute [over 1791 versus 1868 as

the proper time to gauge the scope of the Second Amendment]

was unnecessary to decide the case. The same is true here.”

Rahimi, 602 U.S. at 692 n.1 (emphasis added) (citation

omitted). In other words, the Supreme Court hasn’t had to

opine on the question yet, but we have, in the earlier appeal in

this very case.

Nothing in Rahimi undermines the reasoning there. We

reiterate, for the reasons stated in our earlier opinion, Lara, 91

F.4th at 133-34, that the constitutional right to keep and bear

arms should be understood according to its public meaning in

1791, as that “meaning is fixed according to the understandings

of those who ratified it[.]” Bruen, 597 U.S. at 28; see also id.

at 37 (“[The Court has] generally assumed that the scope of the

protection[s] applicable to the Federal Government and States

is pegged to the public understanding of the right when the Bill

of Rights was adopted in 1791.”).

That said, Rahimi teaches that public meaning is not just

“those regulations … that could be found in 1791[,]” but rather

“the principles underlying the Second Amendment,” with

historical regulations providing evidence of those principles.

Rahimi, 602 U.S. at 692. That evidence can include laws

“through the end of the 19th century[,]” which the Supreme

Court has recognized can be “a ‘critical tool of constitutional

interpretation’” because they can be evidence of a historical

tradition and shed important light on the meaning of the

Amendment as it was originally understood. Bruen, 597 U.S.

at 35 (quoting Heller, 554 U.S. at 605). It offered two such

examples in Bruen: First, evidence of “‘a regular course of

practice’ can ‘liquidate & settle the meaning’” of constitutional

26

terms and phrases. Id. at 35-36 (quoting Chiafalo v.

Washington, 591 U.S. 578, 593 (2020)). And second, post-

ratification history can confirm a court’s understanding of

Founding-era public meaning. Id. at 37. Although the Court

“d[id] not undertake an exhaustive historical analysis … of the

full scope of the Second Amendment[,]” id. at 31

(quoting Heller, 554 U.S. at 626), or “conclusively determine

the manner and circumstances in which postratification

practice may bear on the original meaning of the

Constitution[,]” id. at 81 (Barrett, J., concurring), it drew a firm

line where later evidence “contradicts earlier evidence[,]” id.

at 66. In that circumstance, “later history contradicts what the

text says, [so] the text controls.” Id. at 36.

Bruen thus reminds us that laws enacted in the late-19th

century “do not provide as much insight into” the original

meaning of the right to keep and bear arms as do earlier

sources. Id. (quoting Heller, 554 U.S. at 614). And “post-

ratification adoption or acceptance of laws that are inconsistent

with the original meaning of the [Second Amendment]

obviously cannot overcome or alter that text.” Id.

That is precisely the problem here: Founding-era laws

reflect the principle that 18-to-20-year-olds are “able-bodied

men” entitled to exercise the right to bear arms, Heller, 554

U.S. at 596, while the Commissioner relies on laws enacted at

least 50 years after the ratification of the Second Amendment

to argue the exact opposite.19 The Supreme Court has

19

Again, unlike Bruen and Rahimi, the case before us is

one in which history that long postdates the ratification of the

Second Amendment is incompatible with the public

27

counseled “against giving postenactment history more weight

than it can rightly bear,” Bruen, 597 U.S. at 35, and given its

irreconcilable conflict with the Founding-era laws, the

Commissioner’s catalogue of statutes from the mid-to-late

nineteenth century can bear none.20 What is left is an early

understanding in 1791, and, of course, we decide today only

the case before us.

20

1856 Ala. Acts 17 (banning gun sales to minors under

21); 16 Del. Laws 716 (1881) (banning concealed-carry, and

banning the sale of deadly weapons to minors under 21); Wash.

D.C. 27 Stat. 116 (1892) (criminalizing concealed-carry for all

persons, and banning the sale of guns and dangerous weapons

to minors under 21); 1876 Ga. Laws 112 (banning gun sales to

minors under 21); 1881 Ill. Laws 73 (banning the sale of guns

and other dangerous weapons to minors under 21); 1875 Ind.

Acts 86 (banning the sale of pistols, cartridges, and other

concealable deadly weapons to anyone under 21); 1884 Iowa

Acts 86 (banning the sale of pistols to minors under 21); 1883

Kan. Sess. Laws 159; (banning the purchase and possession of

guns and other dangerous weapons by minors under 21); 1873

Ky. Stat. art. 29, at 359 (criminalizing concealed carry for all

persons, and banning the sale of all deadly weapons to minors

under 21); 1890 La. Acts 39 (banning the sale of concealable

deadly weapons to anyone under 21); 1882 Md. Laws 656

(banning the sale of firearms and deadly weapons other than

rifles and shotguns to minors under 21); 1878 Miss. Laws 175

(criminalizing concealed-carry for all persons, and prohibiting

the sale of firearms and deadly weapons to intoxicated persons

or to minors under 21); 1883 Mo. Laws 76 (criminalizing

concealed carry for all persons, and prohibiting the sale of such

28

eighteenth-century statute that supposedly supports the

contention that Pennsylvania’s current restriction on 18-to-20-

year-olds is a “longstanding, presumptively lawful

regulation[.]” (Answering Br. at 27.) Specifically, the

Commissioner directs us to Pennsylvania’s Act of August 26,

1721, which prohibited “carry[ing] any gun or hunt[ing] on the

improved or inclosed lands of any plantation other than his

own[.]”21

weapons to minors under 21 without parental consent); 1885

Nev. Stat. 51 (prohibiting minors under 21 from carrying

concealed pistols and other dangerous weapons); 1893 N.C.

Sess. 468-69 (banning the sale of pistols and other dangerous

weapons to minors under 21); 1856 Tenn. Pub. Acts 92

(prohibiting the sale of pistols and other dangerous weapons to

minors under 21); 1897 Tex. Gen. Laws 221-22 (banning the

sale of pistols and other dangerous weapons to minors under

21); 1882 W.Va. Acts 421-22 (criminalizing carrying guns and

other dangerous weapons about one’s person and prohibiting

the sale of such weapons to minors under 21); 1883 Wis. Sess.

Laws 290 (making it unlawful for “any minor . . . to go armed

with any pistol or revolver” and for any person to sell firearms

to minors under 21); 1890 Wyo. Sess. Laws 1253 (banning the

sale of pistols and other dangerous weapons to anyone under

21).

Full texts of these laws are available at the Repository

of Historical Gun Laws, Duke Univ. School of Law,

https://firearmslaw.duke.edu/repository/search-the-repository/

(last visited Dec. 17, 2024).

21

In full, the Act provided:

29

Be it enacted by the authority aforesaid, That if

any person or persons shall presume, at any time

after the sixteenth day of November, in this

present year one thousand seven hundred and

twenty one, to carry any gun or hunt on the

improved or inclosed lands of any plantation

other than his own, unless he have license or

permission from the owner of such lands or

plantation, and shall thereof convicted ether

upon view of any justice of the peace within this

province, or by the oath or affirmation of any one

or more witnesses, before any justice of the

peace, he shall for every such offense forfeit the

sum of ten shillings. And if any person

whatsoever, who is not owner of fifty acres of

land and otherwise qualified in the same manners

as persons are or ought to be by the laws of this

province for electing of members to serve in

assembly, shall at any time, after the said

Sixteenth day of November, carry any gun, or

hunt in the woods or inclosed lands, without

license or permission obtained from the owner or

owners of such lands, and shall be thereof

convicted in manner aforesaid, such offender

shall forfeit and pay the sum of five shillings.

Act of Aug. 26, 1721, ch. 246, 3 Statutes at Large of Pa. 254,

255-56, repealed by Act of Apr. 9, 1760, ch. 456, 6 Statutes at

Large of Pa. 46. Text available at the Repository of Historical

Gun Laws, https://firearmslaw.duke.edu/laws/the-statutes-at-

large-of-pennsylvania-c-142-p-254-an-act-to-prevent-the-

30

In our prior opinion, we compared the burdens imposed

by that 1721 statute with those at issue here, discerning no near

equivalence or significant analogue between them. Lara, 91

F.4th at 135. That type of comparison comports with Rahimi’s

methodology, which calls for us to consider “why and how”

founding-era laws and present-day ones burden the Second

Amendment right so we can determine whether the modern law

is “analogous enough” to historical precursors. Rahimi, 602

U.S. at 692 (quoting Bruen, 597 U.S. at 30). Our prior analysis

and conclusions, therefore, remain wholly consistent with

Supreme Court precedent.

The 1721 statute appears to be primarily focused on

preventing Pennsylvanians from hunting on their neighbors’

land, not on restricting the right to publicly carry a gun. When

the statute was later repealed and replaced in 1760, that

subsequent statute included another provision that prevented

“fir[ing] a gun on or near any of the King’s highways,” which

indicates that carrying a firearm in public places was generally

not restricted.22 Act of Apr. 9, 1760, ch. 456, 6 Statutes at

killing-of-deer-out-of-season-and-against-carrying-of-guns-

or-hunting-by-persons-not-qualified/ (last visited Dec. 17,

2024).

22

In full, the relevant portion of the 1760 Act provided:

Be it enacted by the authority aforesaid, That if

any person or persons shall presume at any time

after the publication of this act[,] to carry any gun

or hunt on any [e]nclosed or improved lands of

31

Large of Pa. 46, 48. More to the point, however, to the extent

the statute did burden the right to carry a gun in public, it did

so without singling out 18-to-20-year-olds, or, for that matter,

any other subset of the Pennsylvania population. Although the

Commissioner is not tasked with identifying a precise match

between the present-day regulation and historical precursors,

Rahimi, 602 U.S. at 692, he fails to establish that the

Pennsylvania statutory scheme disarming Appellants is at all

analogous to the founding-era statute he leans on. In making

this observation, we are not, as he complains, demanding that

he produce a historical twin (Comm’r Post-Rem. Supp. Br. at

20); we are insisting only that he provide something that in

principle is genuinely analogous, and the 1721 Pennsylvania

statute falls conspicuously short.

any of the inhabitants of this province other than

his own unless he shall have license or

permission from the owner of such lands, or shall

presume to fire a gun on or near any of the King’s

highways and shall be thereof convicted, either

upon view of any [J]ustice of the [P]eace within

this province or by the oath or affirmation of any

one or more witnesses before any [J]ustice of the

[P]eace, he shall for every such offense forfeit

the sum of forty shillings.

Act of Apr. 9, 1760, ch. 456, 6 Statutes at Large of Pa. 46, 48.

Text available at the Legislative Reference Bureau of

Pennsylvania, https://palrb.gov/Preservation/Statutes-at-

Large/View-Document/17001799/1760/0/act/0456.pdf (last

visited Dec. 17, 2024).

32

Against the sparse record of state regulations on 18-to-

20-year-olds at the time of the Second Amendment’s

ratification, we can juxtapose the Second Militia Act, passed

by Congress on May 8, 1792, a mere five months after the

Second Amendment was ratified on December 15, 1791. The

Act required all able-bodied men to enroll in the militia and to

arm themselves upon turning 18.23 Second Militia Act of 1792

§ 1, 1 Stat. 271 (1792). That young adults had to serve in the

militia indicates that founding-era lawmakers believed those

youth could, and indeed should, keep and bear arms.

The Commissioner contests the relevancy of the Second

Militia Act on three grounds. First, he notes that, “to the extent

1791 militia laws have any relevance, the UFA contains an

exception for members of the Military and National Guard, and

23

The Second Militia Act required that “every free able-

bodied white male citizen of the respective states, resident

therein, who is or shall be of the age of eighteen years and

under the age of forty-five years (except as herein exempted)

shall severally and respectively be enrolled in the militia[.]”

Second Militia Act of 1792 § 1, 1 Stat. 271 (1792). The Second

Militia Act further required every member of the militia to

“provide himself with a good musket or firelock ... or with a

good rifle[.]” Id.

The First Militia Act, which Congress passed shortly

before, on May 2, 1792, gave the president authority to call out

the militias of the several states, “whenever the United States

shall be invaded, or be in imminent danger of invasion from

any foreign nation or Indian tribe.” First Militia Act of 1792

§ 1, 1 Stat. 264 (1792).

33

is thus entirely consistent with them.”24 (Comm’r Letter Br.

Reply at 7 (citing 18 Pa. Cons. Stat. § 6106(b)(2)).) Second,

he objects that, when the Second Amendment was ratified, nine

states set the threshold for militia service at 16 and seven states

set the maximum age at 50. According to the Commissioner,

the “logical extension of Appellants’ argument that militia

laws in 1791 determine the scope of the Second Amendment

would also require the invalidation of any contemporary law

restricting 16-year-olds from purchasing, possessing, and

carrying firearms, but would allow laws stripping 51-year-olds

of the right to keep and bear arms.” (Comm’r Letter Br. Reply

at 5.) And third, he asserts that the Second Militia Act – as

well as similar state statutes that required 18-to-20-year-olds to

participate in the militia – “often assumed that militiamen

younger than 21 did not have the independent ability to acquire

firearms, and therefore required their parents to provide them

with arms.”25 (Comm’r Letter Br. Reply at 5.)

24

Although the founding generation was “devoted to the

idea of state control of the militia,” modern statutes

“nationalized the function and control of the militia” and

reorganized it “into the modern National Guard.” Saul Cornell,

A Well Regulated Militia: The Founding Fathers and the

Origins of Gun Control in America 37, 196 (2006).

25

The Commissioner also notes that Pennsylvania’s

1755 Militia Act provided that “no Youth, under the Age of

Twenty-one Years, . . . shall be admitted to enroll himself . . .

without the Consent of his or their Parents or Guardians[.]”

The text of that statute is available at Militia Act, [25 November

1755], Nat’l Archives,

https://founders.archives.gov/documents/Franklin/01-06-02-

34

No doubt, the Commissioner is correct that a duty to

possess guns in a militia or National Guard setting is

distinguishable from a right to bear arms unconnected to such

service. See Nat’l Rifle Assoc. v. Bondi, 61 F.4th 1317, 1331

(11th Cir. 2023) (cautioning against the conflation of the

obligation to perform militia service with the right to bear

arms). Still, the Second Militia Act is good circumstantial

evidence of the public understanding at the Second

Amendment’s ratification as to whether 18-to-20-year-olds

could be armed, especially considering that the Commissioner

cannot point to a single founding-era statute imposing

restrictions on the freedom of 18-to-20-year-olds to carry

guns.26 The Commissioner’s contention that any reliance on

militia laws would force us to invalidate laws prohibiting 16-

to-17-year-olds from possessing firearms is simply not

persuasive. Although the age of militia service dipped to 16 in

some states during the colonial and revolutionary periods – a

development perhaps attributable to necessities created by

ongoing armed conflicts – the Appellants rightly observe that,

0116#BNFN-01-06-02-0116-fn- 0001 (last visited Dec. 17,

2024).

26

See Nat’l Rifle Ass’n, Inc. v. Bureau of Alcohol,

Tobacco, Firearms, & Explosives, 714 F.3d 334, 342 (5th Cir.

2013) (Jones, J., dissenting from the denial of rehearing)

(“[T]hose minors were in the militia and, as such, they were

required to own their own weapons. What is inconceivable is

any argument that 18-to-20-year-olds were not considered, at

the time of the founding, to have full rights regarding

firearms.”) (emphasis removed).

35

“[a]t the time of the Second Amendment’s passage, or shortly

thereafter, the minimum age for militia service in every state

became eighteen.” (Reply Br. at 17 (citing Nat’l Rifle Ass’n,

Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

714 F.3d 334, 340 (5th Cir. 2013) (Jones, J., dissenting)).)

Finally, even though there were founding-era militia laws that

required parents or guardians to supply arms to their minor

sons, nothing in those statutes says that 18-to-20-year-olds

could not purchase or otherwise acquire their own guns.

We understand that a reasonable debate can be had over

allowing young adults to be armed, but the issue before us

continues to be a narrow one. Our question is whether the

Commissioner has borne his burden of proving that

Pennsylvania’s restriction on 18-to-20-year-olds’ Second

Amendment rights is consistent with the principles that

underpin founding-era firearm regulations, and the answer to

that is no.

D. Mootness

The Commissioner advanced a number of other

arguments in his original appeal, only one of which bears any

further comment here.27 He contended that the case was moot

27

In addition to the mootness argument addressed here,

the Commissioner asserted that the Eleventh Amendment and

Article III of the Constitution barred Appellants’ claim and that

Appellants forfeited their request for injunctive relief and

failed to adequately describe that relief. The Commissioner

has provided no further argument on those points in this

revived appeal. We thus refer to the relevant portions of our

36

because the Appellants no longer faced any restrictions on their

ability to carry publicly, which eliminated any injury for which

they could obtain relief. He pointed to the amendment to

Pennsylvania’s constitution that limits the governor’s authority

to issue an emergency declaration to 21 days, see Pa. Const.

art. IV, § 20(c), and he noted that the emergency proclamations

in place when this suit began have lapsed. He also argued that

the claims of the individual Appellants were moot because they

reached the age of 21 and became eligible to apply for

concealed-carry licenses.28

prior opinion, Lara v. Comm’r Pa. State Police, 91 F.4th 122,

138-40 (3d Cir. 2024), cert. granted, judgment vacated sub

nom. Paris v. Lara, No. 24-93, 2024 WL 4486348 (U.S. Oct.

15, 2024), to which we have nothing to add.

28

During the original appeal, the organizational

Appellants acknowledged that their standing “depend[ed] upon

at least one of their members having standing in their own

right.” (3d Cir. D.I. 71-1 at 1 (citing Hunt v. Washington State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).) At that

time, they made the Court aware of at least one individual,

George Pershall, who was a 19-year-old Pennsylvania resident

and U.S. citizen, who belonged to both organizations, and who

remained subject to the UFA’s restrictions. The record was

supplemented to acknowledge him, but we are now told that he

turned 21 in December of 2024. Consequently, the

organizational Appellants again moved to supplement the

record, this time to make us aware of Keegan Gaston, an 18-

year-old resident of Indiana County, Pennsylvania, who is a

member of both organizations and will remain subject to the

UFA. Although the Commissioner complained that the facts

37

Generally, a case is moot when “the issues presented are

no longer live or the parties lack a legally cognizable interest

in the outcome.” United Steel Paper & Forestry Rubber Mfg.

Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v.

Virgin Islands, 842 F.3d 201, 208 (3d Cir. 2016). “[A]n appeal

is moot in the constitutional sense only if events have taken

place during the pendency of the appeal that make it impossible

for the court to grant any effectual relief whatsoever.” In re

World Imports Ltd., 820 F.3d 576, 582 (3d Cir. 2016).

The Appellants have invoked the “capable of repetition

yet evading review” exception to the mootness rule, which

applies when “(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration, and

(2) there is a reasonable expectation that the same complaining

party will be subject to the same action again.” Hamilton v.

Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (quoting Spencer v.

Kemna, 523 U.S. 1, 17 (1998)). A plaintiff bears the burden to

show that there is “more than a theoretical possibility of the

action occurring against the complaining party again; it must

be a reasonable expectation or a demonstrated probability.”

Cnty. of Butler v. Governor of Pa., 8 F.4th 226, 231 (3d Cir.

2021) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

This case presents such a circumstance because

Pennsylvania continues to declare emergencies, and it is

reasonably likely that other 18-to-20-year-olds, including

members of the organizational Appellants here, namely the

asserted about Mr. Gaston are untested by the adversarial

process, nothing has been provided calling those simple facts

into question. We therefore granted the motion.

38

Second Amendment Foundation and the Firearms Policy

Coalition, will be banned from carrying guns in public yet

again. The Appellants persuasively argue that, while lengthy

emergencies may now be less likely because of the recent

constitutional amendment, the risk of regulated persons being

unable to fully litigate this Second Amendment issue has

increased since the adoption of the new constitutional

amendment. Because emergencies may last for only twenty-

one days, absent intervention from the General Assembly, it is

highly unlikely that there will be enough time to fully litigate

a claim. The “capable of repetition yet evading review”

exception to mootness thus applies.29

III. CONCLUSION

For the foregoing reasons, and having considered the

Supreme Court’s analysis in Rahimi, we maintain our decision

to reverse the District Court’s judgment and remand with

instructions to enter an injunction forbidding the

Commissioner from arresting law-abiding 18-to-20-year-olds

who openly carry firearms during a state of emergency

declared by the Commonwealth.

29

In any event, as noted earlier (see supra n.28), we

have been informed of at least one individual who falls within

the appropriate age range and holds membership in the

organizational Appellants.

39

RESTREPO, Circuit Judge, dissenting.

Because Pennsylvania's statutory scheme does not

violate the Second Amendment of the Constitution, I

respectfully dissent. The challenged statutory scheme here is

“consistent with the Second Amendment’s test and historical

understanding,” see N.Y. State Pistol & Rifle Ass’n v. Bruen,

597 U.S. 1, 26 (2022), and “consistent with the principles that

underpin our [Nation’s] regulatory tradition,” see United States

v. Rahimi, 602 U.S. 680, 692 (2024) (citing Bruen, 597 U.S. at

26-31).

In deciding whether a firearm regulation is

constitutional under the Second Amendment, a court must

decide whether the plain text of the Second Amendment covers

the individual challenger or conduct at issue, and if so, whether

the Government has presented sufficient historical analogues

to justify the restriction. See Bruen, 597 U.S. at 24.

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

recognized that the Second Amendment protects the right of an

“ordinary, law-abiding citizen to possess a handgun in the

home for self-defense,” see Bruen, 597 U.S. at 9 (citing Heller,

554 U.S. at 581), and 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. Rahimi

more recently held that an “individual found by a court to pose

a credible threat to the physical safety of another may be

temporarily disarmed consistent with the Second

Amendment.” Rahimi, 602 U.S. at 702. However, there is no

dispute that there is some age threshold before which the

protection of the Second Amendment does not apply.

The more acute question in this case, then, is where does

that age threshold lie? A “textual analysis focused on the

normal and ordinary meaning of the Second Amendment’s

language,” see Bruen, 597 U.S. at 20 (citing Heller, 554 U.S.

at 576−77, 578) (quotation marks omitted), and an

“examination of a variety of legal and other sources,” see id.

(quoting Heller, 554 U.S. at 605), leads to the conclusion that

the scope of the right, as understood during the Founding era,

excludes those under the age of 21. Thus, there is no need to

proceed to the second step of the Bruen analysis.

I. The plain text of the Second Amendment does not

cover 18-to-20-year-olds freely carrying guns in

public during a state of emergency.

Bruen and Rahimi affirm the historical-textualist

methodology established in Heller. Rahimi, 602 U.S. at 691

(citing Bruen, 597 U.S. at 22). To interpret the language of the

Second Amendment, one must look to historical sources

evidencing how the public would have understood its text near

the time of its ratification. Bruen, 597 U.S. at 19−21; Heller,

554 U.S. at 576. The Supreme Court has “clarified that

‘examination of a variety of legal and other sources to

determine the public understanding of a legal text in the period

after [the Second Amendment’s] enactment or ratification’ was

‘a critical tool of constitutional interpretation.’” Bruen, 597

U.S. at 20 (quoting Heller, 554 U.S. at 605). This principle

presumes that constitutional rights do not change over time but

“are enshrined with the scope they were understood to have

when the people adopted them.” Bruen, 597 U.S. at 34 (quoting

Heller, 554 U.S. at 634−35) (emph. added in Bruen). When

later history or understanding contradicts the original public

meaning of the text, the original understanding controls. Id. at

36.

Under Bruen, “[w]hen the Second Amendment’s plain

text covers an individual’s conduct, the Constitution

presumptively protects that conduct.” Bruen, 597 U.S. at 17,

24 (emph. added). This presumption would apply only if the

plain text of the Second Amendment covers the Appellants’

conduct. However, because the text does not protect the

Appellants here, it doesn’t protect their conduct.

A. The public in 1791 did not understand those

under 21 to be part of “the people” protected by

the Second Amendment.

While my colleagues in the Majority acknowledge that

“[f]rom before the founding and through Reconstruction, those

under the age of 21 were considered minors,” and my

colleagues conclude that “‘the people’ covers all adult

Americans,” see Majority Op. at II.B (emph. added), the

Majority also holds that “18-to-20-year-olds are . . .

2

presumptively among ‘the people’ to whom Second

Amendment rights extend,” id. It is worth reiterating that there

is no dispute that there is some age threshold before which the

protection of the Second Amendment does not apply.

The age threshold was not an issue in Bruen. It was

“undisputed that [the petitioners] – two ordinary, law-abiding,

adult citizens – [were] part of ‘the people’ whom the Second

Amendment protects.” Bruen, 597 U.S. at 31−32 (emph.

added). The Supreme Court “therefore turn[ed] to whether the

plain text of the Second Amendment protects [the petitioners’]

proposed course of conduct.” Id. at 32 (emph. added).

Similarly, whether individuals under 21 were part of “the

people” in the Second Amendment was not at issue before the

Supreme Court in Heller or Rahimi, or before this Court in

Range v. Attorney General, 2024 WL 5199447 (3d Cir. Dec.

23, 2024) (en banc).

The Majority acknowledges that the Commissioner’s

argument that 18-to-20-year-olds are not among “the people”

protected by the Second Amendment is a challenge to “the first

step of the Bruen test,” see Majority Op. at II.B (emph. added).

However, the Majority then concludes that “[t]o succeed on

this point, the Commissioner must overcome the strong

presumption that the Second Amendment applies to ‘all

Americans.’” Id. (citing Heller, 554 U.S. at 581). It stands to

reason that any reference to a definition of “the people” as it

relates to 18-to-20-year-olds in Heller, Bruen, and Range is

dictum.

Nevertheless, even if in the first step we assume a need

to overcome the “presumption that the Second Amendment

applies to ‘all Americans,’” see id. at II.B (citing Heller, 554

U.S. at 581), there is ample evidence that the Founding-era

public would not have understood the text of the Second

Amendment to extend its protection to those under 21. At the

Founding, people under 21 lacked full legal personhood.

Indeed, there is no disagreement that at the time of the

Founding, people under 21 were considered “infants” in the

eyes of the law. See id.; see also 1 William Blackstone,

Commentaries *453; 4 James Kent, Commentaries on

American Law 266 (W.M. Hardcastle Brown ed. 1894) (1826);

1 John Bouvier, Institutes of American Law 87 (New ed., The

Lawbook Exchange, Ltd. 1999) (1851) (“The rule that a man

3

attains his majority at age twenty-one years accomplished, is

perhaps universal in the United States. . . . He is released from

all legal personal ties whatever, which he owed to others on

account of his infancy . . . .”). Nor is there serious debate that

the conception of adulthood beginning at age 18 is relatively

new to American law.1 But to understand the significance of

the historical-legal conception of infant status, one must

understand its predicate presumption of incapacity.

The Founding-era generation inherited the common-law

presumption that persons who lacked rationality or moral

responsibility could not exercise a full suite of rights. Abrams,

supra note 1, at 20. This idea has its roots in the Enlightenment

conception of rights as being endowed only to those “with

discernment to know good from evil, and with power of

choosing those measures which appear . . . to be more

desirable.” 1 William Blackstone, Commentaries *125; see

Abrams, supra note 1, at 20. In other words, those whom

society considered to be rational.

Both at English common law and in eighteenth-century

American law, infants were universally believed to lack such

rationality. Infants were viewed as requiring the protection of

a guardian in the management of their affairs. 3 William

Blackstone, Commentaries *48; 1 Commentaries *463; see

also Bouvier, Institutes of American Law *81 (“It is [] of the

utmost importance, to his own interest, that man in his infancy,

and until he has attained a sufficient maturity to manage his

affairs, should be confided to the care, direction, and advice of

guardians capable of protecting him.”).

James Kent, a respected contemporary scholar of

American constitutional law, said, “[t]he necessity of

guardians results from the inability of infants to take care of

themselves; and this inability continues, in contemplation of

law, until the infant has attained the age of twenty-one years.”

1

See Douglas E. Abrams, Susan V. Mangold, & Sarah

H. Ramsey, Children and the Law: Doctrine, Policy, and

Practice 19 (2020). Of course, the drinking age is still 21, and

federal law currently prohibits tobacco sales to persons under

21. Id. The tradition of limiting the rights of those under 21

continues into the present.

4

Saul Cornell, “Infants” and Arms Bearing in the Era of the

Second Amendment, Yale L. & Pol'y Rev. (Oct. 26, 2021)

(hereinafter “Infants”) (quoting 2 James Kent, Commentaries

on American Law 191 (O. Halsted ed., 1827)). Moreover,

Blackstone referred to infancy as “a defect of the

understanding.” 4 William Blackstone, Commentaries *15−18.

Indeed, Justice Clarence Thomas acknowledged this founding-

era belief: “Children lacked reason and decisionmaking

ability. They ‘have not Judgment or Will of their own,’ John

Adams noted.” Brown v. Ent. Merchs. Ass'n, 564 U.S. 786,

826−27 (2011) (Thomas, J., dissenting) (citing Letter from

John Adams to James Sullivan (May 26, 1776), in 4 Papers of

John Adams 210 (Robert Taylor ed. 1979)).

A consequence of this legal presumption was that at the

Founding, infants had few independent rights. Blackstone

explains that, because of infants’ inherent incapacity, parents

had the power to limit their children’s rights of association, to

control their estates during infancy, and to profit from their

labor. 1 William Blackstone, Commentaries *452−53. Infants

could not marry without their father’s consent. Id. at *437,

*452. Fathers had a right to the profits of their infants’ labor.

Id. Even the right to contract, which the Framers thought to

enshrine in the body of the Constitution, was greatly abridged

for infants. Id. at *465; Infants; Eugene Volokh, Symposium:

The Second Amendment and the Right to Keep and Bear Arms

After Heller, 56 UCLA L. Rev. 1443, 1508−13 (2009) (noting

restrictions on minors’ exercise of fundamental rights and

freedoms, including the right to contract). Blackstone went so

far as to say that it was “generally true, that an infant [could]

do no legal act.” 1 William Blackstone, Commentaries *465. It

was not until the infant reached the age of 21 that “they [were]

then enfranchised by arriving at the years of discretion . . .

when the empire of the father, or other guardian, gives place to

the empire of reason.” 1 William Blackstone, Commentaries

*463 (emph. added).

In England and the United States, infants could not sue

or be sued except by joining their guardians. Id. at *464. For

example, infants had “no legal standing to assert a claim in

court to vindicate their rights, including Second Amendment-

type claims.” Infants. Because they could only access courts

through their guardians, infants necessarily lacked redress

against their parents except in cases of extreme neglect or

5

abuse. 1 William Blackstone, Commentaries 168 n.9 (George

Chase ed.).2

There is substantial evidence that this legal incapacity

controls in the context of the Second Amendment. An

important element of Justice Scalia’s reasoning in Heller was

that the Second Amendment did not create a new right, but

rather “codified a pre-existing right.” Heller, 554 U.S. at 592,

599−600, 605, 652. Accordingly, common-law principles are

crucial to answering whether the right in question extends to

people under the age of 21.

At the Founding, there was an important connection

between property law and the right to keep arms. Some state

constitutions expressly discussed both arms and militia service

in the context of property law. See, e.g., Saul Cornell, History

and Tradition or Fantasy and Fiction, 39 Hastings Const. L.Q.

145, 153 (2022) (hereinafter “History and Tradition”). Several

states exempted arms used in the militia from seizure during

debt proceedings. Id. Some colonies required single men who

could not afford to arm themselves, to work as servants until

they could pay off the cost of a weapon. Nicholas J. Johnson et

al., Firearms Law and the Second Amendment 243 (2022). And

all colonies required certain persons to arm themselves at their

own expense and without just compensation, often mandating

that militia members purchase specific equipment and that

dependents be armed by their guardians. Id. at 177−88,

242−54. There was thus an important relationship between

property law and gun law at the Founding. Infants’ common-

law lack of independent property rights suggests that they were

similarly disabled in keeping and bearing arms.

One might infer additional context from another source:

the eighteenth-century college. At the Founding, “[c]ollege

was one of the very few circumstances where minors lived

outside of their parents’ or a guardian’s direct authority.”

2

Reason reemerges as a central justification of the

delegation of rights on the question of estates: a child could

only attack divestment from his father’s estate if he could

demonstrate a lack or deficiency of reason in doing so. 1

William Blackstone, Commentaries *448.

6

Infants. But students were not liberated by their attendance;

rather, the representatives of the college stood in loco parentis,

a status based on parental consent which allowed them to

exercise full legal power over the infants as though they were

in fact the youths’ parents.3

Importantly, as with the parents themselves, the person

standing in loco parentis could not excessively punish or abuse

a child, suggesting that fundamental rights remained intact

under this relationship. 1 William Blackstone, Commentaries

*168 n.9 (George Chase ed.). Yet colleges at the Founding

could and did prohibit possession of firearms by students.

Infants. This was true of Yale (founded 1701), the University

of Georgia (founded 1785), the University of North Carolina

(founded 1776), and Thomas Jefferson’s University of

Virginia (founded in 1819). Id. Among these schools, such

prohibitions were unambiguous: students were not permitted to

possess arms while on campus. Id. The University of Georgia

even prohibited possessing weapons off-campus, strongly

suggesting that this authority was not predicated on or justified

by the student’s presence at a sensitive location, but rather

stemmed from the inherent power of the authority standing in

loco parentis to dictate all but the most fundamental rights of

the infants under its charge.4

The totality of this evidence demonstrates that the

public during the Founding era understood the plain text of the

3

1 William Blackstone, Commentaries *453 (“[A

father] may also delegate part of his parental authority, during

his life, to the tutor or schoolmaster of his child; who is the in

loco parentis, and has such a portion of the power of the parent

committed to his charge, viz., that of restraint and correction,

as may be necessary to answer the purposes for which he is

employed.”).

4

“[N]o student shall be allowed to keep any gun, pistol,

Dagger, Dirk[,] sword cane[,] or any other offensive weapon

in College or elsewhere, neither shall they or either of them be

allowed to be possessed of the same out of the college in any

case whatsoever.” Infants (quoting The Minutes of the Senate

Academicus 1799–1842, Univ. of Ga. Librs. (2008)

[https://perma.cc/VVT2-KFDB]).

7

Second Amendment did not cover individuals under the age of

21. At the Founding, those under 21 were considered infants, a

status that was a result of the presumption that people under

the age of 21 lacked sufficient cognitive and moral faculties to

govern themselves. The consequences of this presumption

were profound: infants had very little independent ability to

exercise fundamental rights, including those of contract and

property. They also had no power to independently exercise

almost any rights of speech, association, conscience, marriage,

suffrage, and petition. Indeed, except in a few narrow

circumstances, infants could not seek redress in the courts

except through their parents. Stated bluntly, the same

generation from whom Appellants may have begged relief

would not have permitted them to bring their claim. Moreover,

in one historical context, history suggests that any right an

infant may have had to bear arms could be abrogated in its

entirety at the pleasure of the infant’s parent or an authority

standing in loco parentis.

In light of such evidence, the conclusion that infants

during the Founding era were not meant to be protected under

the Second Amendment seems clear. Accordingly, I

respectfully disagree with my colleagues in the Majority, and

conclude that during the Founding era, the plain text of the

Second Amendment was understood to mean that persons

under 21 were not part of “the people” protected by the Second

Amendment.

B. Military statutes do not establish that minors

had an independent right to carry a gun.

The Majority points out that the Second Militia Act of

1792 required every able-bodied white, male citizen of age 18

or older and under age 45 to enroll in their local militia, equip

themselves with certain accoutrements (including “a good

musket or firelock . . . or with a good rifle”), and appear when

called out to exercise or into service. 1 Stat. 271; see Majority

Op. at II.C n.22. But the fact that infants had a duty under the

Second Militia Act to enroll in the militia and thus to equip

themselves with arms for that purpose should not be confused

with such individuals otherwise having an independent right

under the Second Amendment.

8

Some states enacted statutes placing the burden of

arming infants on their guardians.5 Indeed, infants only

rendered militia service under the supervision of peace officers

who, like teachers, stood in loco parentis. See Nicholas J.

Johnson et al., Firearms Law and the Second Amendment 188,

243, 251 (2022). As noted above, at the Founding, infants

exercised and sought redress of rights, including property

rights, at the pleasure of their legal guardians. See, e.g., 1

William Blackstone, Commentaries *452−53; Infants. That

individuals under 21 were required to bear arms in the militia

is not evidence that such individuals otherwise consistently

owned arms in their individual capacities, much less that they

had a right to own such property.

Further analysis of founding-era military statutes

suggests that minors lacked the agency required to enlist, and

thus would lack any associated rights that come with the

enlistment. As of 1813, minors under 21 required parental

consent to enlist in the Army. Act of Jan. 20, 1813, ch. 13, § 5,

2 Stat. 792 (“[N]o person under the age of twenty-one years,

shall be enlisted by any officer, or held in the service of the

United States, without the consent, in writing, of his parent,

guardian, or master.”). Even before the 1813 federal law,

infants under the age of twenty-one could be discharged

against their will at their parents’ request. United States v.

Anderson, 24 F. Cas. 813, 814 (C.C.D. Tenn. 1812) (“[I]t is

obvious that Congress did not intend the minor should have

5

See, e.g., 3 Laws of New Hampshire, Province Period

83 (Henry Harrison Metcalf ed., 1915) (1754); An Act for

Forming and Regulating the Militia Within The State of New

Hampshire, in New-England, and For Repealing All the Laws

Heretofore Made for That Purpose, 1776 Acts & Laws of the

Colony of N.H. 36, 39; An Act for Regulating and Governing

the Militia of the Commonwealth of Massachusetts, c. 1, §

XIX, 1793 Mass Acts & Laws May Sess. 289, 297; An Act, for

Regulating and Governing the Militia of This State 1797, c.

LXXXI, No. 1, § 15, 2 The Laws of the State of Vermont,

Digested & Compiled 122, 131-32 (Randolph, Sereno Wright

1808); 2 William T. Dortch, John Manning & John S.

Henderson, The Code of North Carolina § 3168, 346−47 (New

York, Banks & Bros. 1883).

9

any discretion, either as to enlistment or discharge. The whole

matter is entirely a concern of the [guardian].”).

All of this is superfluous in any event, as Heller made

clear that the Second Amendment codifies an individual right

to keep and bear arms that is unconnected to militia service:

“[A]part from [a] clarifying function, [the] prefatory clause

does not limit or expand the scope of the operative clause.”

Heller, 554 U.S. at 578. Militia service cannot properly be

disconnected from the right for the purpose of limiting its

scope but connected for the purpose of expanding it; the two

are independent. Again, Bruen affirmed this historical-textual

analysis. Bruen, 597 U.S. at 19.

Heller explains at length that the militia and “the

people” are distinct. Heller, 554 U.S. at 650−51. Although the

militia may overlap with “the people,” this does not mean that

every member of the militia is by extension part of “the people”

covered by the Second Amendment. At the time of the

Founding, the age of militia service varied by state, with some

states requiring children as young as 15 to serve.6 And, there

appears to be no claim that 15-year-olds are part of “the

people” in the Second Amendment.

Then-Judge Amy Coney Barrett’s discussion of felons

and the mentally ill, see Majority Op. at II.B (citing Kanter v.

Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Barrett, J.,

dissenting)), concerns classes distinct from infants. At the

Founding, felons and the mentally ill were extended greater

rights than infants, and their legal disability resulted from legal

findings, not a priori legal classifications. Felons and the

mentally ill lost their rights only after they were found

untrustworthy, whereas persons under 21 were classified as

infants because as a class of persons they were considered

untrustworthy. While insanity and criminality test the

capacities and character of the individual, respectively, the age

6

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

Second Amendment 188 (2022). Massachusetts had a typical

conscription law which required male residents between ages

16 and 60 to serve. Id. at 242, 244. New Hampshire and Maine

had similar requirements. Id. at 247.

10

of majority as a concept suppresses individual differentiation.7

See Abrams, supra note 1, at 19.

At the Founding, people under 21 bore arms at the

pleasure of their superiors. Were they to find this condition

violative of their rights, they would have no right to petition

the courts for redress.

II. Because Appellants’ conduct is not covered by the

Second Amendment, there is no need to proceed to

the second step of the analysis.

As mentioned above, under Bruen, “[w]hen the Second

Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct.” Bruen, 597

U.S. at 24. But, the ordinary understanding of the plain text of

the Second Amendment during the Founding era was that

individuals under the age of 21 were not part of “the people”

whom the Second Amendment protects. Thus, the Second

Amendment’s plain text does not cover these Appellants’

conduct, and the Constitution does not presumptively protect

the conduct regulated by the challenged statutory scheme.

The Majority points out that, under Bruen: “The court

first decides whether ‘the Second Amendment’s plain text

covers an individual’s conduct.’ Bruen, 597 U.S. at 24. If it

does, the government must demonstrate that the challenged

regulation is consistent with the principles behind our

Nation's historical tradition of firearm regulation.” See

Majority Op. at II.A (citing Rahimi, 602 U.S. at 691−92;

Bruen, 597 U.S. at 24) (emph. added). Here, because the plain

text of the Amendment does not protect the conduct of these

Appellants, the government does not have a burden to

7

Of course, there are some exceptions to this general

rule. For example, some criminal penalties can accrue to

individuals below the age of majority, a court may find that a

minor is properly developed to make certain medical decisions

for themselves, and a court may find a minor sufficiently

mature to warrant emancipation. See, Abrams supra note 1, at

19.

11

“identify[ ] a ‘founding-era’ historical analogue to the modern

firearm regulation.” See id. (citing Bruen, 597 U.S. at 24−27).

In that the ordinary Founding-era meaning of the

Second Amendment’s plain text does not cover these

Appellants’ conduct, it should not be surprising that the

challenged statutory scheme “is consistent with this Nation's

historical tradition,” see Bruen, 597 U.S. at 17, and “consistent

with the principles that underpin our [Nation’s] regulatory

tradition,” see Rahimi, 602 U.S. at 692 (citing Bruen, 597 U.S.

at 26-31). Whether there are any known Founding-era statutes

that barred independent firearm ownership or possession by

people under 21 would not seem to be determinative of whether

the challenged regulation is “consistent” with our Nation’s

historical tradition. Legislatures tend not to enact laws to

address problems that do not exist, and the absence of such

laws does not speak to an inconsistency with the Nation’s

historical tradition or the undisputed Founding-era

understanding of the limited rights of infants. As explained

above, young people at the Founding bore arms only at the

pleasure of their guardians, and they had no independent right

to petition courts for redress.

Under Bruen and Rahimi, it is appropriate to consider

the evidence from the Founding and determine if later evidence

offers greater proof and context. Between 1856 and 1893, at

least 17 states passed laws restricting the sale of firearms to

people under 21. David B. Kopel & Joseph G.S. Greenlee, The

History of Bans on Types of Arms Before 1900, 50 J. of Leg. 1,

192-93. Some restricted non-sale transfers. Id. Many included

provisions expressly putting the gun rights of minors at the

discretion of authority figures. Id.; see also Repository of

Historical Gun Laws, Duke Center for Firearms Law,

https://firearmslaw.duke.edu/repository/search-the-

repository/. These laws demonstrate that, at least as early as the

mid-nineteenth century, legislatures believed they could

qualify and, in some cases, abrogate the arms privileges of

infants. While these laws cannot independently prove the

constitutionality of the challenged laws, they certainly seem to

be consistent with the challenged statutory scheme here in that

they regulate arms privileges of “infants.” But again, assuming

the 1791 meaning of the Second Amendment controls, it

appears that the challenged statutory scheme is not inconsistent

12

(and thus is consistent) with this Nation’s historical tradition

and the principles that underpin our regulatory tradition.

III. Conclusion

A review of historical sources reveals that the Second

Amendment’s plain text does not cover Appellants’ conduct

because it would have been understood during the Founding

era that Appellants are not “part of ‘the people’ whom the

Second Amendment protects.” See Bruen, 597 U.S. at 31−32;

see also id. at 20 (quoting Heller, 554 U.S. at 605) (referring

to “the public understanding of a legal text” as “a critical tool

of constitutional interpretation”). Further, the challenged

statutory scheme here is “consistent with this Nation’s

historical tradition,” id. at 17, and “consistent with the

principles that underpin our regulatory tradition,” see Rahimi,

602 U.S. at 692 (citing Bruen, 597 U.S. at 26-31). Because

Pennsylvania’s challenged statutory scheme does not violate

the Second Amendment of the Constitution, I respectfully

dissent.

13