Petition for Writ of Certiorari — Christopher Paris, Commissioner, Pennsylvania State Police, Petitioner v. Madison M. Lara, et al.
Supreme Court briefJul 25, 2024
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No. __________
In the Supreme Court of the United States
CHRISTOPHER PARIS, COMMISSIONER, PENNSYLVANIA
STATE POLICE,
Petitioner
v.
MADISON M. LARA; SOPHIA KNEPLEY; LOGAN D.
MILLER; SECOND AMENDMENT FOUNDATION, INC.;
FIREARMS POLICY COALITION,
Respondents
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
APPENDIX
MICHELLE A. HENRY
Attorney General
Commonwealth of Pennsylvania
SEAN A. KIRKPATRICK
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Counsel of Record
DANIEL B. MULLEN
Deputy Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
(717) 705-2331
COUNSEL FOR PETITIONER
TABLE OF APPENDICES
Appendix A. Court of Appeals panel majority
opinion and dissent .................................................1a
Appendix B. District Court opinion
(April 16, 2021)......................................................50a
Appendix C. District Court order
(April 16, 2021)......................................................81a
Appendix D. District Court judgment
(April 16, 2021)......................................................82a
Appendix E. Court of Appeals order denying
en banc review .......................................................83a
Appendix F. Dissent from the denial of
en banc review .......................................................85a
Appendix G. Constitutional and statutory
provisions.............................................................106a
U.S. Const. Amend II ........................................106a
U.S. Const. Amend XIV ....................................106a
18 Pa.C.S. § 6106...............................................108a
18 Pa.C.S. § 6107...............................................114a
18 Pa.C.S. § 6109...............................................115a
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APPENDIX A
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
_____________
Argued
June 28, 2023
Before: JORDAN, RESTREPO, and SMITH, Circuit
Judges
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(Filed: January 18, 2024)
_____________
John D. Ohlendorf [Argued]
Peter Patterson
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
Daniel B. Mullen [Argued]
Office of Attorney General of Pennsylvania
Appellate Litigation Section
1251 Waterfront Place
Pittsburgh, PA 15222
Counsel for Commissioner Pennsylvania State Police
Janet Carter
Everytown Law
450 Lexhington Avenue
P.O. Box 4148
New York, NY 10017
Lisa Ebersole
Cohen Milstein Sellers and Toll
1100 New York Avenue NW
West Tower, Suite 500
Washington, DC 20005
Counsel for Amicus Appellee
Everytwon for Gun Safety Support Fund
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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
_____________
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, want to carry firearms outside their homes for
lawful purposes, including self-defense. 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 now
appeal the District Court's order dismissing their case
and denying them preliminary injunctive relief. They
assert that the Commonwealth's statutory scheme
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violates the Second Amendment of the United States
Constitution.
In response, the Commissioner contends that
the Appellants 1 are not among “the people” to whom
the Second Amendment applies, and that the Nation’s
history and tradition of firearm regulation support the
statutory status quo. We disagree. The words “the
people” in the Second Amendment presumptively
encompass all adult Americans, including 18-to-20year-olds, and we are aware of no founding-era law that
supports disarming people in that age group.
Accordingly, we will reverse and remand.
I.
BACKGROUND 2
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
1 Lara, Knepley, and Miller are U.S. citizens and residents of
Pennsylvania. Were it not for the challenged statutory provisions,
they would have carried firearms outside of their homes. The two
organizational Appellants are the Second Amendment Foundation
and the Firearms Policy Coalition, both of which have at least one
active 18-to-20-year-old member who is a U.S. citizen and
Pennsylvania resident and who wishes to carry firearms in public
for lawful purposes. For simplicity, we will speak of the
“Appellants” in terms of the three named individuals, unless
otherwise specified.
2 The operative facts are not in dispute. We are bound, at this
stage of the proceedings, to “accept all factual allegations as true,
[and] construe the complaint in the light most favorable to the
[Appellants].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008).
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carry a concealed firearm without a license and must
be at least 21 years old to apply for 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 of fifteen
other exceptions enumerated in § 6106(b). 3 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 recently amended its constitution to
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
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limit the governor’s authority to issue such emergency
declarations to twenty-one days, unless the General
Assembly votes to extend it. Pa. Const. art. IV, § 20.
Subsequently, all state-wide emergency declarations
lapsed.
B. Proceedings below
The Appellants sued the Commissioner, Robert
Evanchick, in his official capacity, 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. 4
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 restrictions on firearm ownership,
possession and use for people younger than 21 fall
Besides facially challenging the UFA, the complaint also
raised as-applied challenges in the alternative. 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[.]”).
4
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within the types of ‘longstanding’ and ‘presumptively
lawful’ regulations envisioned by [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.
II.
DISCUSSION 5
A. The Supreme Court’s new, two-part test
The Second Amendment, controversial in
interpretation of late, 6 is simple in its text: “A well
“When considering 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).
5
6 Compare, e.g., Joseph Blocher & Eric Ruben, Originalismby-Analogy and Second Amendment Adjudication, 133 YALE L.J.
99, 105 (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.”), 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
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regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const. amend. II.
In Heller, the Supreme Court held that,
regardless of militia service, the Second and
Fourteenth Amendments guarantee to an individual
the right to possess a handgun in his home for selfdefense. 554 U.S. at 584, 592. In that opinion, which
addressed a District of Columbia law that banned
handguns and required other “firearms in the home be
rendered and kept inoperable at all times,” 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 628-30. We and other courts had
interpreted that observation as endorsing a means-end
scrutiny analysis in Second Amendment cases. 7
treating the Second Amendment with dismissive hostility, as if it
were a second-class provision of the Bill of Rights.”).
7 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 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
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Then, last year, in New York State Rifle & Pistol
Ass’n Inc. v. Bruen, the Supreme Court held that “the
Second and Fourteenth Amendments protect an
individual’s right to carry a handgun … outside the
home.” 142 S. Ct. 2111, 2122 (2022). The Court rejected
“means-end scrutiny in the Second Amendment
context” and announced a new two-step analytical
approach. Id. at 2122, 2126-27. At the first step, a court
determines whether “the Second Amendment’s plain
text covers an individual’s conduct.” Id. at 2129-30.
That “‘textual analysis’ focuse[s] on the ‘normal and
ordinary’ meaning of the Second Amendment’s
language.” Id. at 2127 (quoting Heller, 554 U.S. at 57678). If the text applies to the conduct at issue, “the
Constitution presumptively protects that conduct.” Id.
at 2130.
At the second step, a court determines whether
the regulation 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 regulation 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 2130-33. We are to look to the
founding because “[c]onstitutional rights are enshrined
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.”).
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with the scope they were understood to have when the
people adopted them.” Id. at 2130, 2136 (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 2131-32 (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 2136-37.
Assessing the similarity of current regulations
to those of the founding era calls on us to consider both
“how and why the regulations [being compared] burden
a law-abiding citizen’s right to armed self-defense.” Id.
at 2133; see also id. (“[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). We must be wary of a modern law that
only “remotely resembles a historical analogue,”
because to uphold such a law risks “endorsing outliers
that our ancestors would never have accepted.” Id.
(quoting Drummond v. Robinson Twp., 9 F.4th 217,
226 (3d Cir. 2021)). “On the other hand, analogical
reasoning requires only that the government identify a
well-established
and
representative
historical
analogue, not a historical twin. So even if a modern-day
regulation is not a dead ringer for historical precursors,
it still may be analogous enough to pass constitutional
muster.” Id.
In sum, at a high level, Bruen requires two
distinct
analytical
steps
to
determine
the
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constitutionality of a firearm regulation. The court first
decides whether “the Second Amendment’s plain text
covers an individual’s conduct.” Id. at 2126. If it does,
“the government must demonstrate that the regulation
is consistent with this Nation’s historical tradition of
firearm regulation.” Id.
B. The Second Amendment’s reference to
“the people” covers all adult Americans.
In defense of the Pennsylvania statutes, the
Commissioner first argues that 18-to-20-year-olds are
not among “the people” protected by the Second
Amendment, and the Appellants’ challenge therefore
fails the first step of the Bruen test. This is an issue of
first impression for us.
To succeed on this argument, 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 is “a strong presumption that the
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Second Amendment right
Americans.” 8 Id. at 581.
…
belongs
to
all
Bruen once again 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.” 142 S. Ct. at 2156 (quoting
Heller, 554 U.S. at 581). 9 Taking our cue from the
Supreme Court, we have construed the term “the
people” to cast a wide net. In Range v. Attorney
General, we considered an as-applied challenge to the
constitutionality of a federal statute that barred the
defendant from purchasing firearms because of a statelevel conviction for having made a false statement to
obtain food stamps. 69 F.4th 96, 98 (3d Cir. 2023) (en
banc). We held that the Supreme Court’s past
references to “law-abiding citizens” did not mean that
a criminal conviction removes an American citizen
from “the people.” Id. at 101-02. We reasoned that
“[u]nless the meaning of the phrase ‘the people’ [in the
Constitution] varies from provision to provision – and
the Supreme Court in Heller suggested it does not – to
conclude that [the defendant] is not among ‘the people’
for Second Amendment purposes would exclude him
from those rights as well.” Id. at 102.
The Commissioner endeavors to argue around
that conclusion by saying that, “[a]t the time of the
8 Heller identified Second Amendment rightsholders at
various points as “Americans,” “all Americans,” “citizens,” and
“law-abiding citizens.” 554 U.S. at 580-81, 625.
Bruen also stated that the protections of the Second
Amendment extend to “ordinary, law-abiding, adult citizens.” 142
S. Ct. at 2134.
9
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Founding – and, indeed, for most of the Nation’s history
– those who were under 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-21year-olds during that period, however, the
Commissioner’s position is untenable for three reasons.
First, it supposes that the first step of 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 Bruen
analysis, 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 of
white, landed men, and that is obviously not the state
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of the law. 10 Cf., Bruen, 142 S. Ct. at 2132 (noting that
the Second Amendment’s “reference to ‘arms’ does not
apply ‘only [to] those arms in existence in the 18th
century’”); Range, 69 F.4th at 104-05 (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 lacked certain legal
rights at the founding, they were ex ante excluded from
the scope of “the people.” As then-Judge Barrett
explained, “[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, peaceable assembly, government
petitions (id. amend. I), and the right against
unreasonable government searches and seizures (id.
10 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.”).
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amend. IV). 11 As we recently observed in Range, there
is “no reason to adopt an inconsistent reading of ‘the
people.’” 69 F.4th at 102. 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 selfdefense … ‘a second-class right, subject to an entirely
different body of rules than the other Bill of Rights
guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting
McDonald v. Chicago, 561 U.S. 742, 780 (2010)).
We therefore hold that 18-to-20-year-olds are,
like other subsets of the American public,
presumptively among “the people” to whom Second
Amendment rights extend. 12 If there is any argument
11 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.”).
12 Two other federal appellate courts have determined that 18to-20-year-olds are among “the people” protected by the Second
Amendment. Hirschfeld v. ATF, 5 F.4th 407, 418-34 (4th Cir.
2021), vacated as moot, 14 F.4th 322 (4th 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). 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 32627, 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
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to be made that the Commonwealth can restrict the
rights of 18-to-20-year-olds with respect to firearms,
Bruen teaches that the Commissioner must make that
argument by showing that such restrictions are part of
the nation’s historical tradition of gun regulation. 142
S. Ct. at 2130.
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
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).
We acknowledge that our dissenting colleague sees things
differently. He shares the Commissioner’s view that 18-to-21year-olds are not under the protection of the Second Amendment.
Our understanding, however, for the reasons already described is
to the contrary.
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C. The relevant historical timeframe
The Commissioner does seek to shoulder that
burden, but, before considering whether he has
succeeded in his task, we must establish which 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. The Appellants direct us
to 1791, but the Commissioner insists that 1868 is the
correct temporal reference point.
Bruen 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.” 142 S. Ct. at 2138. We are situated
differently, however, because, 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.)
A premise we begin with is 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, 142 S. Ct. at 2137; 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
18a
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
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 Bruen did not
definitively decide this issue, it 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, 142 S. Ct. at 2137. 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, 12225 (2011).
In those cases, the Court interpreted the bounds
of the Sixth, Fourth, and First Amendments,
respectively, according to their public meaning at the
19a
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
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. 13 564 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 not
articulated a theory for defining some rights according
to their public meaning in 1791 and others according to
their public meaning in 1868. Moreover, Bruen has
already instructed that historical evidence from 1791
13 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)).
20a
is relevant to understanding the scope of the Second
Amendment as incorporated against the states. Bruen,
142 S. Ct. at 2139, 2145. Accordingly, to maintain
consistency in our interpretation of constitutional
provisions, we hold that the Second Amendment should
be understood according to its public meaning in
1791. 14
We thus set aside the Commissioner’s catalogue
of statutes from the mid-to-late nineteenth century, as
each was enacted at least 50 years after the ratification
of the Second Amendment. 15 What is left is an
14 We thus part ways with the Eleventh Circuit, which held in
National Rifle Ass’n v. Bondi, 61 F.4th 1317 (11th Cir.), reh’g en
banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023), that
the Second Amendment’s “contours turn on the understanding
that prevailed at the time of the later ratification – that is, when
the Fourteenth Amendment was ratified.” Id. at 1323. According
to Bondi, “[t]his is necessarily so if we are to be faithful to the
principle that ‘constitutional rights are enshrined with the scope
that they were understood to have when the people adopted them.’”
Id. at 1323 (quoting Bruen, 142 S. Ct. at 2136) (cleaned up). Bondi
overlooks that two generations of Americans ratified the Second
and Fourteenth Amendments. If we are to construe the rights
embodied in those amendments coextensively, as the Supreme
Court has instructed we must, and if there is daylight between
how each generation understood a particular right, we must pick
between the two timeframes, and, as explained herein, we believe
the better choice is the founding era.
15 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
21a
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
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 concealedcarry for all persons, and prohibiting the sale of such 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 Sept. 26, 2023).
22a
his own[.]” 16 But we can discern no near equivalence or
significant analogue between the burdens imposed by
that statute and those at issue here. For one thing, the
1721 statute appears to be primarily focused on
preventing Pennsylvanians from hunting on their
neighbors’ land, not on restricting the right to publicly
16 In full, the Act provided:
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-ofpennsylvania-c-142-p-254-an-act-to-prevent-the-killing-of-deerout-of-season-and-against-carrying-of-guns-or-hunting-bypersons-not-qualified/ (last visited Sept. 26, 2023).
23a
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. 17 Act of Apr. 9, 1760, ch. 456, 6 Statutes at
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-yearolds, or any other subset of the Pennsylvania
population for that matter.
Against that conspicuously 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,
17 In full, the relevant portion of the 1760 Act provided:
Be it enacted, 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 enclosed or
improved lands of 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
offence 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 Repository of Historical Gun Laws,
https://firearmslaw.duke.edu/laws/laws-of-the-commonwealth-ofpennsylvania-from-the-fourteenth-day-of-october-one-thousandseven-hundred-to-the-twentieth-day-of-march-one-thousandeight-hundred-and-ten-page-229-image-288-vol-1/ (last visited
Sept. 26, 2023).
24a
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. 18 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 is thus
entirely consistent with them.” 19 (Comm’r Letter Br.
Reply at 7 (citing 18 Pa. Cons. Stat. § 6106(b)(2)).)
Second, he objects that, when the Second Amendment
18 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. § 1.
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).
19 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).
25a
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 of
1792 – 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.” 20 (Comm’r Letter Br. Reply at 5.)
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
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/0106-02-0116#BNFN-01-06-02-0116-fn- 0001 (last visited Sept. 20,
2023).
20
26a
armed, especially considering that the Commissioner
cannot point us to a single founding-era statute
imposing restrictions on the freedom of 18-to-20-yearolds to carry guns. 21 The Commissioner’s contention
that any reliance on 1789 militia laws would force us to
invalidate laws prohibiting 16-to-17-year-old 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 that likely can be attributed to necessities
created by ongoing armed conflicts – the Appellants
rightly observe that, “[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 is a narrow one. Our question is
whether the Commissioner has borne his burden of
proving that evidence of founding-era regulations
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-20year-olds were not considered, at the time of the founding, to have
full rights regarding firearms.”) (emphasis removed).
21
27a
supports Pennsylvania’s restriction on 18-to-20-yearolds’ Second Amendment rights, and the answer to that
is no.
D. This case is not moot
The Commissioner next argues that none of the
foregoing matters because the Appellants no longer
face any restrictions on their ability to carry publicly,
which eliminates any injury for which they could
obtain relief. In other words, he says the case is moot.
He points to the amendment to Pennsylvania’s
constitution that now limits the governor’s authority to
issue an emergency declaration to 21 days, unless the
General Assembly votes to extend it. See PA. Const.
art. IV, § 20(c). And he notes that the emergency
proclamations in place when this suit began have all
lapsed. Accordingly, the Commissioner says, there is no
longer any restriction on the Appellants’ ability to
openly carry firearms. He also argues that the claims
of the individual Appellants are moot because they
have reached the age of 21 and are now eligible to apply
for a concealed-carry license.
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).
28a
Here, the Appellants invoke the “capable of
repetition yet evading review” exception to the
mootness rule, which applies “only in exceptional
circumstances” 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 need not show that future
injury is certain, only 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)). The plaintiff has the burden of making that
showing. New Jersey Tpk. Auth. v. Jersey Cent. Power
& Light, 772 F.2d 25, 31-33 (3d Cir. 1985).
This is one such exceptional circumstance
because, as the record shows, Pennsylvania has a
recent history of declaring multiple emergencies, and it
is reasonably likely that other 18-to-21-year-olds,
including members of the organizational Appellants
here, the Second Amendment Foundation and the
Firearms Policy Coalition, will be banned from
carrying guns in public yet again. 22 The Appellants
22 As the organizational Appellants acknowledge, their
standing “depends 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)).) Although the three named individual Appellants have
reached the age of 21, the Court has been made aware of at least
one individual, George Pershall, a 19-year-old resident of Chester
County, Pennsylvania and U.S. citizen, who is a member of both
29a
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 only last for twenty-one days, absent
intervention from the General Assembly, there is not
enough time to litigate a claim.
E. The Appellants’ claim is not barred by
the Eleventh Amendment or Article III
standing 23
The Commissioner’s next salvo is, in essence,
“they’ve got the wrong man.” He says that the target of
the
Appellants’
constitutional
challenge
is
Pennsylvania’s licensing scheme, not him, and that
suing him is improper because he is powerless to issue
licenses. 24 More specifically, he says that the Ex parte
Young exception to the Eleventh Amendment, the
exception that allows suits against an official who is a
“representative of the state,”25 209 U.S. 123, 157
(1908), is properly invoked only More specifically, he
says that the Ex parte Young exception to the Eleventh
Amendment, the exception that allows suits against an
the Second Amendment Foundation and the Firearms Policy
Coalition, and will remain subject to the UFA’s restrictions.
23 We may consider Eleventh Amendment issues for the first
time on appeal, In re Hetchinger Inv. Co. of Del., Inc., 335 F.3d
244, 251 (3d Cir. 2003), and may affirm the District Court’s
judgment on any ground supported by the record, TD Bank N.A.
v. Hill, 928 F.3d 259, 276 n.9 (3d Cir. 2019).
24 Only county sheriffs may grant concealed-carry licenses.
30a
official who is a “representative of the state,” 25 209 U.S.
123, 157 (1908), is properly invoked only if the named
defendant has a sufficient connection to the
enforcement of the challenged law, as distinct from a
generalized duty to enforce, and if there is a real
potential that the official will in fact enforce the law.
See 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108,
114-15 (3d Cir. 1993) (holding that “Commonwealth
Officials’ general duty to enforce the laws of the
Commonwealth of Pennsylvania,” standing alone, was
“not … a proper predicate for liability”). The
Commissioner further argues that the Appellants lack
standing under Article III of the Constitution because
they cannot establish the requisite causation and
redressability of their claim. 26
The Eleventh Amendment generally bars suits against
states in federal court without their consent. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 66 (1989). “[A] suit against a
state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office. As such, it
is no different from suit against the State itself.” McCauley v.
Univ. of the Virgin Islands, 618 F.3d 232, 241 (3d Cir. 2010) (citing
Will, 491 U.S. at 71) (cleaned up). A plaintiff can avoid that bar by
naming a state official in a suit for prospective declaratory or
injunctive relief to prevent a continuing violation of federal law.
Cf. Ex parte Young, 209 U.S. 123, 157 (1908) (explaining that in
bringing such an action, the “officer must have some connection
with the enforcement of the act, or else it is merely making him a
party as a representative of the state, and thereby attempting to
make the state a party”).
25
26 To satisfy the Article III standing requirements of causation
and redressability, a plaintiff must establish that his injury is
causally connected to the government-defendant’s challenged
conduct, and that enjoining that conduct is likely to redress the
plaintiff’s injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992). We agree with the Commissioner that, “[w]hen a plaintiff
sues state officials to enjoin the enforcement of a state statute, the
dictates of Ex parte Young overlap significantly with [the Article
31a
The Appellants have a ready and effective
response. They say they are “agnostic” as to whether
they get licenses to carry concealed weapons under §§
6106 and 6109, or whether, despite § 6107, they can
carry openly without a license during an emergency.
(Reply Br. at 3-4.) In other words, the existence of a
license is not what they are fighting about; it is the
right to openly carry a gun regardless of a state of
emergency. And they contend that enjoining the
Commissioner from arresting 18-to-20-year-olds who
openly carry firearms would in fact redress their
constitutional injuries.
We agree that a bar on arrests would be a form
of relief. 27 Accordingly, the Commissioner has an
adequate connection to the enforcement of the
challenged law, and neither the Eleventh Amendment
nor Article III bars the Appellants’ claim.
III requirements of] causation and redressability.” (Answering Br.
at 17-18.) If a plaintiff can show that the defendant’s conduct
causes an injury and that enjoining the conduct would redress the
injury, that showing will satisfy the “sufficient connection”
requirement under Ex parte Young. See 1st Westco Corp. v. Sch.
Dist. Of Phila., 6 F.3d 108, 114-15 (3d Cir. 1993) (requiring a “real,
not ephemeral, likelihood or realistic potential that the connection
will be employed against the plaintiff’s interests”).
27 The Commissioner appears to implicitly acknowledge this
as well. (See Answering Br. at 50 (asserting that a bar on arrests
“would lead to a perverse result, which would give an unlicensed
18-year-old high school senior the ability to carry concealed
firearms in public at any time, but would leave her unlicensed
parents vulnerable to criminal sanction for the same conduct.
That result cannot be consistent with the intent of the General
Assembly when it enacted the UFA”).)
32a
F. The Appellants have not waived their
request for injunctive relief, and their
request is sufficiently specific. 28
Finally, the Commissioner asserts that the
Appellants forfeited their request for injunctive relief
and failed to adequately describe that relief as required
under Federal Rule of Civil Procedure 65(d). That
argument fails too.
The Appellants repeatedly referenced their
request for injunctive relief throughout their opening
brief, and they discussed each of the elements of the
preliminary injunction test, citing caselaw in support.
The issue of injunctive relief therefore should not be a
surprise to anyone in this case. The Commissioner had
a full opportunity to develop a response in his
answering brief. Cf. Wood v. Milyard, 566 U.S. 463, 473
(2012) (holding that courts should exercise restraint in
reaching issues that parties “would not have
anticipated in developing their arguments on appeal”).
And contrary to the Commissioner’s argument
that “it is unclear” as to “how an injunction
(preliminary or permanent) against Commissioner
Evanchick would function” (Answering Br. at 48), we
think it is abundantly clear. As an initial matter, Rule
65(d) governs the “contents and scope of every
injunction and restraining order” issued by a court, not
the way in which a party requests injunctive relief. For
28 Arguments not raised in an opening brief are forfeited, In re
Wettach, 811 F.3d 99, 115 (3d Cir. 2016), and “arguments raised
in passing (such as in a footnote), but not squarely argued, are
considered [forfeited],” Higgins v. Bayada Home Health Care Inc.,
62 F.4th 755, 763 (3d Cir. 2023) (alteration in original).
33a
that reason alone, the Commissioner’s Rule 65(d)
argument is meritless. More to the point though, while
Rule 65(d) requires that the enjoined party “receive fair
and precisely drawn notice of what the injunction
actually prohibits,” Hope v. Warden York Cnty. Prison,
972 F.3d 310, 322 (3d Cir. 2020), and that the
injunction be “phrased in terms of objective actions, not
legal conclusions,” id., the Appellants’ complaint did
provide notice and specificity when it said, “Plaintiffs
respectfully request[] that this Honorable Court ...
[p]reliminarily, and thereafter permanently, enjoin
Defendant, his officers, agents, [and] servants,
employees, and all persons in active concert or
participation with him from enforcing against
Plaintiffs and those similarly situated, 18 PA. C.S. §
6107.” (J.A. at 70-71.) There is nothing vague about
that.
III.
CONCLUSION
For the foregoing reasons, we will reverse the
decision of the District Court and remand with
instructions to enter an injunction forbidding the
Commissioner from arresting law-abiding 18-to-20year-olds who openly carry firearms during a state of
emergency declared by the Commonwealth.
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 this Nation’s historical
tradition,” as defined in New York State Pistol & Rifle
Association Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022).
34a
In deciding whether a firearm regulation is
constitutional under the Second Amendment, courts
must examine whether the “regulation [being
reviewed] is part of the historical tradition that
delimits the outer boundaries of the right to keep and
bear arms.” Id. at 2127. In making this determination,
“a court must decide whether the challenger or conduct
at issue is protected by the Second Amendment and, if
so, whether the Government has presented sufficient
historical analogues to justify the restriction.” Range v.
Att’y Gen., 69 F.4th 96, 113 (3d Cir. 2023) (Shwartz, J.,
dissent) (emph. added); see Majority Op. at II.A (citing
Bruen, 142 S. Ct. at 2126) (explaining that, under
Bruen, the court first decides whether “the Second
Amendment’s plain text covers an individual’s
conduct,” and if it does, “the government must
demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.”).
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, 142 S. Ct. at 2122 (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.
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, 142 S. Ct.
at 2127 (citing Heller, 554 U.S. at 576-77, 578)
35a
(quotation marks omitted), and an “examination of a
variety of legal and other sources,” see id. at 2127-28
(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.
I.
The public in 1791 did not understand
those under 21 to be part of “the people”
protected by the Second Amendment.
Bruen
affirms
the
historical-textualist
methodology established in Heller. Bruen, 141 S. Ct. at
2127. 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, 141 S. Ct.
at 2127-28; Heller, 554 U.S. at 576. 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, 141 S. Ct. at 2136 (quoting Heller, 554 U.S. at
634-35). When later history or understanding
contradicts the original public meaning of the text, the
original understanding controls. Id. at 2137.
Under Bruen, “[w]hen the Second Amendment’s
plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.”
Bruen, 141 S. Ct. at 2126, 2129-30 (emph. added).
Thus, here, it would appear a presumption would apply
only if the plain text of the Second Amendment covers
the Appellants’ conduct. In other words, if the text
doesn’t protect the Appellants here, it doesn’t protect
their conduct, and a presumption would not apply.
36a
While my colleagues in the Majority
acknowledge that “from before the founding and
through Reconstruction, those under the age of 21 were
considered minors,” see Majority Op. at II.B (emph.
added), the Majority also holds that the “words ‘the
people’ in the Second Amendment presumptively
encompass all adult Americans, including 18-to-20year-olds.” See Majority Op. at intro. (emph. added).
Thus, the Majority concludes that “all adult
Americans” “include[es] 18-to-20- year-olds.” 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.
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, 142 S. Ct. at 2134 (emph.
added). Whether the plain text of the Second
Amendment covered the individual petitioners in
Bruen was not at issue, and the Supreme Court
“therefore turn[ed] to whether the plain text of the
Second Amendment protects [the petitioners’] proposed
course of conduct.” Id. (emph. added). There was no
dispute in Bruen that the petitioners were part of “the
people” in the Second Amendment. 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 before this Court in Range.
The Majority seems to acknowledge 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
37a
succeed on this argument, 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.
It is only when the Second Amendment’s plain
text covers an “individual’s conduct” (first step) that
the presumption of constitutional protection applies,
and “the government must then justify its regulation
by demonstrating that it is consistent with the
National historical tradition of firearm regulation”
(second step). Bruen, 142 S. Ct. at 2129- 30. Because
the first step of the Bruen test for presumption of
constitutional protection to apply is not met here, there
is no burden to overcome such a presumption. See
Majority Op. at II.B (citing Heller, 554 U.S. at 581).
Nevertheless, assuming a need to overcome a
“presumption that the Second Amendment applies to
‘all Americans’,” see id. (citing Heller, 554 U.S. at 581),
as the Majority appears to do, in order to conclude the
plain text of the Second Amendment covers the conduct
of individuals under 21 at the first step of the Bruen
test, there is 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 Majority
Op. at II.B; see also 1 William Blackstone,
Commentaries *453; 4 James Kent, Commentaries on
38a
American Law 266 (W.M. Hardcastle Brown ed. 1894)
(1826). 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 eighteenthcentury 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. 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
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.
1
39a
themselves; and this inability continues, in
contemplation of law, until the infant has attained the
age of twenty-one years.” 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.
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).
40a
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
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 preexisting 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
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.
41a
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.” 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
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.”).
42a
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 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
“[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]).
4
43a
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. Indeed,
except in a few narrow circumstances, infants could not
seek redress in the courts except through their parents.
Moreover, in one historical context, history suggests
that any right that 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.
The Majority points out that the Second Militia
Act of 1792 required every white, male citizen between
the ages of 18 and 45 to enroll in their local militia,
equip themselves with certain accoutrements
(including “a good musket or firelock”), and appear
when called out to exercise or into service. 1 Stat. 271.
In addition, the age of militia service varied by state,
with some states requiring children as young as 15 to
serve. 5 Notwithstanding an argument that the Second
Militia Act supports Appellants’ position, there
appears to be no claim that 15-year-olds are part of “the
people” in the Second Amendment. In any event, 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
5 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.
44a
such individuals otherwise having an independent
right under the Second Amendment. Some states
enacted statutes placing the burden of arming infants
on their guardians. 6 Indeed, infants only rendered
militia service under the supervision of peace officers
who, like teachers, stood in loco parentis. See Johnson,
supra note 5, at 243, 251. 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.
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
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).
6
45a
its scope but connected for the purpose of expanding it;
the two are independent. Again, Bruen affirmed this
historical-textual analysis. Bruen, 141 S. Ct. at 2127.
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.
As discussed above, infants during the
Founding-era did not merely lack certain legal rights,
but nearly all legal rights. The fact that this class of
persons had no power to independently exercise almost
any rights of speech, association, conscience, marriage,
contract, suffrage, petition, or property, strongly
suggests that they would not be understood as
receiving constitutional protections as members of “the
people” under 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,
46a
the age 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. Stated bluntly,
the same generation from whom Appellants may have
begged relief would not have permitted them to bring
their claim. 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.
II.
The challenged statutes are consistent
with this Nation’s historical tradition.
Under Bruen, “[w]hen the Second Amendment’s
plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.”
Bruen, 142 S. Ct. at 2129-30. As explained above, 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
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.
47a
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.’ . . . If it does,
‘the government must demonstrate that the regulation
is consistent with this Nation’s historical tradition of
firearm regulation.’” See Majority Op. at II.A (citing
Bruen, 142 S. Ct. at 2126) (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 “identify[] a
‘founding-era’ historical analogue to the modern
firearm regulation.” See id. (citing Bruen, 142, S. Ct. at
2130-33).
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, 142
S. Ct. at 2126. Whether there are any known Foundingera 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.
48a
Under Bruen, 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, 19293. 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-therepository/. 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, the 1791 meaning of the Second Amendment
controls, and it appears that the challenged statutory
scheme is not inconsistent (and thus is consistent) with
this Nation’s historical 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, 142 S. Ct. at 2134.
Further, the challenged statutory scheme here is
“consistent with this Nation’s historical tradition.” Id.
49a
at 2126. Because Pennsylvania’s statutory scheme does
not violate the Second Amendment of the Constitution,
I respectfully dissent.
50a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
_____________
Civil Action No.2:20-cv-1582
Hon. William S. Stickman IV
_____________
MADISON M. LARA, et al.
Appellants
v.
COMMISSIONER PENNSYLVANIA STATE
POLICE,
_____________
OPINION
WILLIAM S. STICKMAN IV, United States District
Judge
The Pennsylvania Uniform Firearms Act of
1995, 18 Pa. C.S. §§ 6101–6128, makes it unlawful to
carry a concealed firearm without a license unless the
individual falls within one of the statutorily
enumerated exceptions. 18 Pa. C.S. § 6106(b). Section
6109 of the Act provides that licenses may only be
issued to individuals who are at least 21 years old. 18
Pa. C.S. § 6109(b). Generally, Pennsylvanians without
a license to carry concealed are free to carry openly
(that is, in an unconcealed manner). Their right to
51a
carry openly, however, is not unlimited because under
Section 6107 of the Act, the right to do so on public
streets and property is limited during a declared state
of emergency:
No person shall carry a firearm, rifle or
shotgun upon the public streets or upon
public property during an emergency
proclaimed by a State or municipal
governmental executive unless that
person is:
(1) Actively engaged in a defense of that
person's life or property from peril or
threat.
(2) Licensed to carry firearms under
section 6109 (related to licenses) or is
exempt from licensing under section
6106(b) (relating to firearms not to be
carried without a license).
18 Pa. C.S. § 6107(a)(1)–(2).
Pennsylvania has been in a state of emergency
for over three years. Governor Thomas Wolf declared
an emergency on January 10, 2018, arising out of the
unprecedented level of opioid abuse in the
Commonwealth. In March of 2020, a second state of
emergency was declared because of the COVID-19
pandemic. Both emergency declarations have been
renewed several times and remain in effect. Because of
these two ongoing states of emergency, the limitations
on open carry set forth in Section 6107 are and have
been in place for over three years.
52a
Plaintiffs in this case are three young adults, all
of whom are over the age of 18 but not yet 21, and two
Second Amendment advocacy groups. Plaintiffs are
seeking declaratory, preliminary and permanent
injunctive relief because they believe that the
emergency declarations have created a situation in
which Sections 6106, 6107 and 6109 work together to
infringe upon their rights to keep and bear arms
guaranteed by the Second Amendment. They contend
that these provisions, taken together, “deprive 18-to20-year-old Pennsylvanians of the right to bear arms in
public in any manner.” (ECF No. 36, p. 10).
The United States Court of Appeals for the Third
Circuit's decision in United States v. Marzzarella, 614
F.3d 85 (3d. Cir. 2010), provides a two-step analysis for
the examination of an alleged Second Amendment
violation. Id. at 89. The first step asks whether the
alleged violation burdens the Second Amendment or,
alternatively, falls within one of the “longstanding” and
“presumptively lawful” regulations recognized by
District of Columbia v. Heller, 554 U.S. 570 (2008). Id.
at 89–93. If the violation falls within the purview of the
Second Amendment, a court must proceed to the next
step of the analysis and examine the alleged violation
through the lens of, at least, intermediate level
scrutiny. Id. at 89.
An examination of federal caselaw following
Heller shows a broad consensus that restrictions on
firearm ownership, possession and use for people
younger than 21 fall within the types of “longstanding”
and “presumptively lawful” regulations envisioned by
Heller and, thus, fall outside the scope of the Second
Amendment. The restrictions at issue in this case are
far more limited than Plaintiffs portray and
53a
significantly less restrictive than measures upheld by
other federal courts. Even absent direct Third Circuit
precedent, the Court believes the cases addressing agebased restrictions—particularly with regard to
licensing—embody a view of the Second Amendment's
scope that will likely be found consistent with Heller.
Thus, in light of the consensus on this issue, the Court
is not able to proceed to the second balancing prong
where it would examine whether there is any
significant relationship between the two open-ended
and ongoing emergency declarations and the
restrictions imposed by Section 6107 (individually and
in combination with Sections 6106 and 6109). The
Court is compelled, therefore, to grant Defendant's
Motion to Dismiss (ECF No. 23).
FACTS AND PROCEDURAL HISTORY
The pertinent facts of this case are narrow and
not in dispute. Plaintiffs Madison Lara, Logan Miller
and Sophia Knepley are citizens of the Commonwealth
who are over the age of 18 but not yet 21. 1 Defendant,
1 In addition to the three individuals, Plaintiffs include two
Second Amendment advocacy groups. Second Amendment
Foundation “seeks to preserve the effectiveness of the Second
Amendment through education, research, publishing, and legal
action programs focused on the constitutional right to possess
firearms and the consequences of gun control.” (ECF No. 1, ¶ 23).
It purports to represent the interest of its 650,000 members, which
include thousands of Pennsylvanians, including individual
Plaintiffs. (ECF No. 1, ¶ 23). Plaintiff Firearms Policy Coalition,
Inc. is dedicated to “defending and promoting the People's rights—
especially the fundamental, individual Second Amendment right
to keep and bear arms—advancing liberty and restoring freedom.”
(ECF No. 1, ¶ 24). Individual Plaintiffs are members. These
groups have standing to participate in this litigation in the
54a
Colonel Robert Evanchick, is the Commissioner of the
Pennsylvania State Police (“PSP”) and is alleged by
Plaintiffs to be responsible for the “implementation,
execution and administration of the laws, regulations,
customs, practices, and policies of the PSP and the
Commonwealth, inter alia, in relation to the Uniform
Firearms Act.” (ECF No. 1, ¶ 25).
Each Plaintiff alleges that he or she was never
charged with or convicted of a misdemeanor or felony
offense, and each asserts that he or she wants to
“procure a license to carry firearms and to be able to
lawfully transport firearms and/or carry a firearm,
including for purposes of self-defense, without violating
the law.” (ECF No. 1, ¶¶ 20–22). Plaintiffs assert that
they are barred from obtaining a license under Section
6109 only because they are not yet 21 years old.
Likewise, they assert that their ability to carry a gun
without a license has been curtailed under Sections
6106, 6107 and 6109 due to Governor Wolf's
declarations of emergency on January 10, 2018 and
March 6, 2020, and the continual subsequent and
ongoing renewal of those emergency declarations.
On October 16, 2020, Plaintiffs filed their
Complaint. (ECF No. 1). On December 1, 2020, they
moved for Preliminary Injunction. (ECF No. 11). On
January 8, 2021, Defendant responded to the Motion
for Preliminary Injunction (ECF No. 25) along with a
Motion to Dismiss under Federal Rule of Civil
Procedure 12(b)(6) (ECF No. 23). The Motion to
Dismiss argues that Plaintiffs’ claims should be
dismissed because the restrictions at issue are
interest of their members. See Sierra Club v. U.S. Env't Prot.
Agency, 972 F.3d 290, 298–99 (3d Cir. 2020).
55a
examples of the “longstanding” and “presumptively
legal” measures that Heller recognized as consistent
with the Second Amendment. In the alternative, they
argue that the Court should hold that the restrictions
pass scrutiny under the intermediate-level test. The
Court conducted a status conference wherein the
parties agreed that this case presents a fundamental
legal issue and, as such, that both the Motion to
Dismiss and the Motion for Preliminary Injunctive
relief could be decided on the papers without a hearing
or any other record development. (ECF No. 38).
STANDARD OF REVIEW
A motion to dismiss filed under Federal Rule of
Civil Procedure 12(b)(6) tests the legal sufficiency of
the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). A plaintiff must allege sufficient facts that,
if accepted as true, state a claim for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A court must accept all well-pled factual
allegations as true and view them in the light most
favorable to the plaintiff. Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009).
The “plausibility” standard required for a
complaint to survive a motion to dismiss is not akin to
a “probability” requirement but asks for more than
sheer “possibility.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, the
complaint's factual allegations must be enough to raise
a right to relief above the speculative level, on the
assumption that all the allegations are true even if
doubtful in fact. Twombly, 550 U.S. at 555. Facial
plausibility is present when the plaintiff pleads factual
56a
content that allows a court to draw the reasonable
inference that the defendants are liable for the
misconduct alleged. Iqbal, 556 U.S. at 678. Even if the
complaint's well-pled facts give rise to a plausible
inference, that inference alone will not entitle the
plaintiff to relief. Id. at 682. The complaint must
support the inference with facts to plausibly justify
that inferential leap. Id.
“[A] motion to dismiss may be granted only if,
accepting all well-pleaded allegations in the complaint
as true and viewing them in the light most favorable to
the plaintiff, a court finds that plaintiff's claims lack
facial plausibility.” Warren Gen. Hosp. v. Amgen Inc.,
643 F.3d 77, 84 (3d Cir. 2011). Although the Court
must accept the allegations in the Complaint as true,
it is “not compelled to accept unsupported conclusions
and unwarranted inferences, or a legal conclusion
couched as a factual allegation.” Baraka v. McGreevey,
481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
ANALYSIS
In Heller, the Supreme Court held that the
Second Amendment protects the rights of citizens, as
individuals, to keep and bear arms. Two years later,
the Court held that the Second Amendment applies to
the states in McDonald v. City of Chicago, 561 U.S. 742
(2010). Since Heller, the focus of Second Amendment
litigation has been the scope and extent of the right
protected by the Amendment or, conversely, the
permissible extent of gun regulations in light of the
individual right to keep and bear arms.
The Heller Court recognized that the Second
Amendment “confer[s] an individual right to keep and
57a
bear arms.” Heller, 554 U.S. at 595. The focus of the
Court's holding in Heller was that law-abiding citizens
are free to “use arms in defense of hearth and home.”
Id. at 635. This has been described as the “core” of the
Second Amendment by post-Heller cases and
commentary. The Heller Court declined to explore fully
the contours of the liberties enshrined in the Second
Amendment and cautioned that it did not believe that
the Amendment supported an absolutist view of the
right to keep and bear arms. Id. at 625–27 (“Like most
rights, the right secured by the Second Amendment is
not unlimited .... [N]othing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms ....”). The Court recognized that
certain “longstanding” prohibitions will not only pass
muster, but can be viewed as falling outside the scope
of the Second Amendment:
Although we do not undertake an
exhaustive historical analysis today of the
full scope of the Second Amendment,
nothing in our opinion should be taken to
cast doubt on longstanding prohibitions
on the possession of firearms by felons
and the mentally ill, or laws forbidding
the carrying of firearms in sensitive
places such as schools and government
buildings, or laws imposing conditions
and qualifications on the commercial sale
of arms.
Id. at 626–27. The Court was careful to highlight that
the list of “presumptively lawful regulatory measures”
was merely illustrative and not exhaustive. Id. at 627
n.26. The first challenge faced in post-Heller Second
Amendment litigation is, therefore, determining
58a
whether a gun restriction falls within the class of
“longstanding prohibitions” and “presumptively
lawful” regulations that the Supreme Court recognized
as falling outside the scope of the liberty protected by
the Second Amendment. Only if a restriction implicates
the Second Amendment does a court need to determine
whether it satisfies the appropriate constitutional
scrutiny.
In Marzzarella, the Third Circuit outlined a twopart framework for examining post-Heller Second
Amendment claims. It explained the need for a twostep inquiry in examining Second Amendment
challenges:
We recognize the phrase “presumptively
lawful” could have different meanings
under
newly
enunciated
Second
Amendment doctrine. On the one hand,
this language could be read to suggest the
identified restrictions are presumptively
lawful because they regulate conduct
outside the scope of the Second
Amendment. On the other hand, it may
suggest
the
restrictions
are
presumptively lawful because they pass
muster under any standard of scrutiny.
Both
readings
are
reasonable
interpretations, but we think the better
reading, based on the text and structure
of Heller, is the former—in other words,
that these longstanding limitations are
exceptions to the right to bear arms.
Marzzarella, 614 F.3d at 91 (citations and footnote
omitted). The Court outlined the framework:
59a
As we read Heller, it suggests a twopronged approach to Second Amendment
challenges. First, we ask whether the
challenged law imposes a burden on
conduct falling within the scope of the
Second Amendment guarantee. If it does
not, our inquiry is complete. If it does, we
evaluate the law under some form of
means-end scrutiny. If the law passes
muster under that standard, it is
constitutional. If it fails, it is invalid.
Id. at 89 (citations and footnote omitted). Thus, a court
using the Marzzarella framework will first determine
whether the restriction falls within the scope of the
Second Amendment or, on the other hand, one of the
“presumptively lawful regulatory measures” that is
outside of the Amendment's scope. If a restriction is
found to be within the scope of the Second Amendment,
the Court must apply the appropriate level of
constitutional scrutiny. Similar two-step analyses have
been adopted by other courts in addressing Second
Amendment cases. See, e.g., Heller v. D.C., 670 F.3d
1244, 1252 (D.C. Cir. 2011) (Heller II) (recognizing that
certain firearms regulations do not fall within the
protection of the Second Amendment, and utilizing a
two-step approach to determine constitutionality);
Nat'l Rifle Assoc. v. Bureau of Alcohol, Tobacco,
Firearms & Explosives (BATFE), 700 F.3d 185, 194
(5th Cir. 2012) (applying two-step inquiry asking
whether challenged conduct falls within the scope of
the Second Amendment, and determining whether
conduct survives scrutiny); Teixeira v. Cnty. of
Alameda, 873 F.3d 670, 682 (9th Cir. 2017) (applying
same two-step inquiry).
60a
The Marzzarella framework applies to both
facial and as-applied Second Amendment challenges.
Binderup v. Att'y Gen. of the U.S., 836 F.3d 336, 339
(3d. Cir. 2016) (“In United States v. Marzzarella we
adopted a framework for deciding facial and as-applied
Second-Amendment challenges.”). The Third Circuit
has explained the difference between facial and asapplied challenges: “[u]nlike a facial challenge, an asapplied challenge ‘does not contend that a law is
unconstitutional as written but that its application to
a particular person under particular circumstances
deprived that person of a constitutional right.’ ” Id. at
345 (quoting United States v. Mitchell, 652 F.3d 387,
405 (3d Cir. 2011)). See also Ayotte v. Planned
Parenthood of N. Eng., 546 U.S. 320, 329 (2006)
(quoting Dahnke-Walker Milling Co. v. Bondurant, 257
U.S. 282, 289 (1921)) (“It is axiomatic that a ‘statute
may be invalid as applied to one state of facts and yet
valid as applied to another.’ ”). In Binderup, the Third
Circuit set forth an analytical framework to address
the first prong of the Marzzarella analysis in an asapplied challenge. Plaintiffs assert a facial challenge to
Sections 6106, 6107 and 6109. They argue that these
provisions conjunctively result in a “categorically
unconstitutional” Second Amendment restriction.
(ECF No. 36, p. 25). As such, the Court will address
Plaintiffs’ challenge through the test as set forth in
Marzzarella.
A. Sections 6106, 6107 and 6109 of the
Pennsylvania Uniform Firearms Act of
1995 are
“presumptively
lawful
regulatory measures” that fall outside the
scope of the Second Amendment.
61a
Under the first prong of the Marzzarella
framework, the Court must determine whether the
restrictions forming the basis of Plaintiffs’ action fall
within the scope of the Second Amendment or, on the
contrary, fall within one of the “presumptively lawful
regulatory measures” recognized by Heller and
subsequent caselaw. To do so, the Court must first
determine the nature and extent of the restrictions
imposed upon Plaintiffs by the three statutory sections
in question. While Plaintiffs suggest a near total
deprivation of the right of 18-to-20-year-olds to keep
and bear arms, a review of the statutory provisions
dispels this characterization.
1) The Challenged Statutory Provisions.
Plaintiffs state that Sections 6106, 6107 and
6109, collectively and through their interaction, violate
their rights under the Second Amendment. They are
careful to point out, however, that they do not
challenge any of the sections individually. (ECF No. 36,
p. 10). Rather, they challenge “the enforcement of the
three provisions together, which combine to deprive 18to-20-year-old Pennsylvanians of the right to bear arms
in public in any manner.” (ECF No. 36, p. 10). They
contend that the challenged provisions “bar virtually
all 18-to-20-year-old adult Pennsylvanians from
carrying loaded, operable firearms for lawful purposes,
including the purpose of being prepared to defend
themselves and their families from violent assault.”
(ECF No. 36, p. 10).
An examination of the challenged provisions,
individually and read together, shows that the
prohibitions effectuated are not as broad as have been
characterized by Plaintiffs. There is no question that
62a
Section 6109(b) requires that a person be at least 21
years old to obtain a license to carry a concealed
firearm. See 18 Pa. C.S. § 6109(b) (“An individual who
is 21 years of age or older may apply to a sheriff for a
license to carry a firearm concealed on or about his
person or in a vehicle within this Commonwealth.”).
Pennsylvania generally permits the open (i.e., nonconcealed) carrying of firearms without a license.
However, that right is limited with respect to public
streets and public property in times of declared
emergencies by the provisions of Section 6107, which
provides:
No person shall carry a firearm upon the
public streets or upon any public property
during an emergency proclaimed by a
State
or
municipal
governmental
executive unless that person is:
(1) Actively engaged in a defense of that
person's life or property from peril or
threat.
(2) Licensed to carry firearms under
section 6109 (relating to licenses) or is
exempt from licensing under section
6106(b) (relating to firearms not to be
carried without a license).
18 Pa. C.S. § 6107(a)(1)–(2). Section 6107’s limitations
are location-specific and apply only to public streets
and property. Further, the plain language of Section
6107 carves out two classes of exceptions from its
limitation on open-carry for: (1) “[those] actively
engaged in a defense of that person's life or property
from peril or threat; and (2) all of those exceptions in
63a
Section 6106(b) (permitting concealed carry without a
license).” 18 Pa. C.S. § 6107(a)(1)–(2).
Section 6106(b) excepts a broad range of persons
and activities from the licensure requirement:
(1) Constables, sheriffs, prison or jail
wardens, or their deputies, policemen of
this Commonwealth or its political
subdivisions, or other law-enforcement
officers.
(2) Members of the army, navy, marine
corps, air force or coast guard of the
United States or of the National Guard or
organized reserves when on duty.
(3) The regularly enrolled members of any
organization duly organized to purchase
or receive such firearms from the United
States or from this Commonwealth.
(4) Any persons engaged in target
shooting with a firearm, if such persons
are at or are going to or from their places
of assembly or target practice and if, while
going to or from their places of assembly
or target practice, the firearm is not
loaded.
(5) Officers or employees of the United
States duly authorized to carry a
concealed firearm.
(6) Agents, messengers and other
employees of common carriers, banks, or
64a
business firms, whose duties require
them to protect moneys, valuables and
other property in the discharge of such
duties.
(7) Any person engaged in the business of
manufacturing, repairing, or dealing in
firearms, or the agent or representative of
any such person, having in his possession,
using or carrying a firearm in the usual or
ordinary course of such business.
(8) Any person while carrying a firearm
which is not loaded and is in a secure
wrapper from the place of purchase to his
home or place of business, or to a place of
repair, sale or appraisal or back to his
home or place of business, or in moving
from one place of abode or business to
another or from his home to a vacation or
recreational home or dwelling or back, or
to recover stolen property under section
6111.1(b)(4) (relating to Pennsylvania
State Police), or to a place of instruction
intended to teach the safe handling, use
or maintenance of firearms or back or to a
location to which the person has been
directed to relinquish firearms under 23
Pa. C.S. § 6108 (relating to relief) or back
upon return of the relinquished firearm or
to a licensed dealer's place of business for
relinquishment pursuant to 23 Pa. C.S. §
6108.2 (relating to relinquishment for
consignment sale, lawful transfer or
safekeeping) or back upon return of the
relinquished firearm or to a location for
65a
safekeeping pursuant to 23 Pa. C.S. §
6108.3 (relating to relinquishment to
third party for safekeeping) or back upon
return of the relinquished firearm.
(9) Persons licensed to hunt, take
furbearers or fish in this Commonwealth,
if such persons are actually hunting,
taking furbearers or fishing as permitted
by such license, or are going to the places
where they desire to hunt, take furbearers
or fish or returning from such places.
(10) Persons training dogs, if such persons
are actually training dogs during the
regular training season.
(11) Any person while carrying a firearm
in any vehicle, which person possesses a
valid and lawfully issued license for that
firearm which has been issued under the
laws of the United States or any other
state.
(12) A person who has a lawfully issued
license to carry a firearm pursuant to
section 6109 (relating to licenses) and
that said license expired within six
months prior to the date of arrest and that
the individual is otherwise eligible for
renewal of the license.
(13) Any person who is otherwise eligible
to possess a firearm under this chapter
and who is operating a motor vehicle
which is registered in the person's name
66a
or the name of a spouse or parent and
which contains a firearm for which a valid
license has been issued pursuant to
section 6109 to the spouse or parent
owning the firearm.
(14) A person lawfully engaged in the
interstate transportation of a firearm as
defined under 18 U.S.C. § 921(a)(3)
(relating to definitions) in compliance
with 18 U.S.C. § 926A (relating to
interstate transportation of firearms).
(15) Any person who possesses a valid and
lawfully issued license or permit to carry
a firearm which has been issued under
the laws of another state, regardless of
whether a reciprocity agreement exists
between the Commonwealth and the state
under section 6109(k), provided:
(i) The state provides a reciprocal
privilege for individuals licensed to
carry firearms under section 6109.
(ii) The Attorney General has
determined that the firearm laws of
the state are similar to the firearm
laws of this Commonwealth.
(16) Any person holding a license in
accordance with section 6109(f)(3).
18 Pa. C.S. § 6106(b)(1)–(16).
67a
An examination of the exceptions set forth in
Sections 6106(b) and 6107 shows that the deprivation
effectuated by the interaction of Sections 6106, 6107
and 6109 do not, as Plaintiffs argue, “bar virtually all
18-to-20-year-old adult Pennsylvanians from carrying
loaded, operable firearms for lawful purposes,
including the purpose of being prepared to defend
themselves and their families from violent assault.”
(ECF No. 36, p. 10). Indeed, the language of Section
6107 specifically permits the use of firearms when
“[a]ctively engaged in a defense of that person's life or
property from peril or threat.” 18 Pa. C.S. § 6107(a)(1).
In addition, the exceptions of Section 6106(b) permit
firearms to be kept, carried and used without regard to
age, licensure or emergency declaration by individuals
engaged in a wide range of occupations (peace officers,
the armed forces, common carriers, banks, etc.), as well
as for recreational purposes, such as target shooting,
hunting, furbearing or fishing. Therefore, the
threshold question at bar is whether the relatively
(compared to other cases discussed below) limited
restrictions imposed by the interplay of Sections 6106,
6107 and 6109 facially implicate the Second
Amendment.
2) Post-Heller cases have found age-based
restrictions on the possession and use of
firearms to be “presumptively lawful
regulatory measures.”
The operative question in examining the first
prong of the Marzzarella framework is whether agerelated restrictions on carrying firearms—which,
nevertheless, permit carrying for a broad range of
purposes including the defense of “life or property from
peril or threat” and a range of other activities—are the
68a
kind of “presumptively lawful regulatory measures”
recognized by Heller that fall outside the scope of the
Second Amendment. The Third Circuit has not yet
addressed age-related gun restrictions in light of
Heller. However, federal courts from other circuits and
districts recognize a broad range of age-related
restrictions as falling within the class of
“presumptively lawful regulatory measures” that are,
therefore, outside the scope of the Second Amendment.
In BATFE, the United States Court of Appeals
for the Fifth Circuit upheld a federal statute and
regulations that prohibited firearms dealers from
selling handguns to persons under the age of 21.
BATFE, 700 F.3d at 200–11. As here, the challengers
were law-abiding adults who were, nevertheless, not
yet 21 years old. Id. at 188. The Fifth Circuit first
explained that it would use the same two-step
framework employed by the Third Circuit in
Marzzarella. Id. at 194. In doing so, it determined that
“the first inquiry is whether the conduct at issue falls
within the scope of the Second Amendment right.” Id.
The Fifth Circuit recognized that Heller did not
provide a definitive analysis for what type of regulatory
measures
are
considered
“longstanding”
or
“presumptively lawful.” Id. at 196. The Court explained
that “Heller demonstrates that a regulation can been
deemed ‘longstanding’ even if it cannot boast a precise
founding-era analogue.” Id. at 196. The Fifth Circuit
cited Heller II, in which the Court of Appeals for the
District of Columbia explained that “longstanding” can
be read to mean that a regulation has “long been
accepted by the public [and] is not likely to burden a
constitutional right.” Id. (citing Heller II, 670 F.3d at
1253). In other words, under Heller and interpreting
69a
cases, a challenged restriction does not have to date
from the time of the framing of the Second
Amendment. Rather, when viewed as a whole and in
context, a restriction will not implicate the Second
Amendment if it is within the type of restriction that
has long been accepted by the public.
The Fifth Circuit reviewed the history of agerelated gun restrictions. It explained that in the early
republic, “the term ‘minor’ or ‘infant’—as those terms
were historically understood—applied to persons
under the age of 21, not only to persons under the age
of 18.” Id. at 201. The Fifth Circuit explained that
restrictions based on minority were well accepted.
Thus, “[i]f a representative citizen of the founding era
conceived of a ‘minor’ as an individual who was
unworthy of the Second Amendment guarantee, and
conceived of 18-to-20 year-olds as ‘minors,’ then it
stands to reason that the citizen would have supported
restricting an 18-to-20 year-old's right to keep and bear
arms.” Id. at 202. The Fifth Circuit further explained
that restrictions on the purchase and use of firearms
remained pervasive and accepted throughout the
nineteenth and twentieth centuries. Id. at 202–03. The
Fifth Circuit concluded that the ban on selling
handguns to adults under 21 years old fell into the
category of “longstanding presumptively valid
regulatory measures” that Heller excepted from the
scope of the Second Amendment. Id. at 203 (citation
omitted) (“[T]he present ban is consistent with a
longstanding tradition of targeting select groups’
ability to access and use arms for the sake of public
safety. More specifically, the present ban appears
consistent with a longstanding tradition of age and
safety-based restrictions on the ability to access
arms.”).
70a
The Fifth Circuit's subsequent decision in
National Rifle Association v. McCraw, 719 F.3d 338
(5th Cir. 2013), decided only a year after BATFE,
upheld a Texas law barring 18-to-20-year-olds from
carrying handguns in public (either openly or
concealed). The challengers argued that the licensing
law at issue violated their rights under the Second
Amendment because it completely divested them—
legal adults—of the right to carry a handgun. Id. at
343. As in BATFE, the Court held that the age-based
restrictions were “longstanding” and “presumptively
lawful regulatory measures” that fall outside the scope
of the Second Amendment. Id. at 347.
The United States District Court for the District
of Massachusetts in Powell v. Tompkins, 926 F. Supp.
2d 367 (D. Mass. 2013), reached the same result as the
Fifth Circuit did in BATFE and McCraw. At issue was
a Massachusetts law precluding anyone from
possessing a gun without a “firearm identification
(“FID”) card” 2 and from carrying a gun (in any manner)
without a license. 3 Id. at 370. Neither could issue to
those under 21. Id. at 383. The effect was to, generally,
ban those under 21 from owning and carrying guns.
2 “Massachusetts General Laws chapter 140, section 129B,
provides that an individual may not own or possess a firearm in
her home or place of business without first obtaining an FID card
from her local licensing authority.” Id. at 373 (citing Mass. Gen.
Laws ch. 140 §§ 129B(1), 129(c)).
“Massachusetts General Laws chapter 269, section 10(a)
subjects to criminal charges anyone who ‘knowingly has in [her]
possession ... a firearm, loaded or unloaded ... without ... having in
effect a license to carry firearms outside her home or place of
business.’ ” Id. at 373 (citing Mass. Gen. Laws ch. 269 § 10(a)(2)).
3
71a
The District Court explained that Heller does not
support an “unlimited” reading of the Second
Amendment and that “[t]he Supreme Court ... has
exhibited a rather favorable posture toward licensure,
especially when the practice is used to moderate law
and order.” Id. at 379 (). The Court focused its prongone Heller analysis less on the age issue than on the
broad acceptance of licensing requirements of firearm
ownership and use. Thus, it held, “[a]bsent evidence to
the contrary, [it is] presume[d] that the
Commonwealth's regulation of firearms by means of a
comprehensive licensing scheme falls within the band
of governmental action allowable under the Second
Amendment.” Id. at 380 (footnote omitted).
In Mitchell v. Atkins, 483 F. Supp. 3d 985 (W.D.
Wash. 2020), the United States District Court for the
Western District of Washington rejected a claim that a
state law prohibiting the purchase of a semiautomatic
assault rifle to people under 21 years old violated the
Second Amendment rights of 18-to-20-year-olds. 4 Id. at
989–90. In holding that the restrictions were examples
of “long-established” and “presumptively lawful
regulatory measures,” the court acknowledged that
“U.S. law has long recognized that age can be decisive
in determining rights and obligations. For most of our
country's history, 18-to[-]20-year-olds were considered
minors or ‘infants’ without the full legal rights of
4 The law at issue did not preclude 18-to-20-year-olds from
possessing and using semiautomatic assault rifles in certain
enumerated exceptions, such as “(1) in their home or business; (2)
on real property they control; (3) at competitions or shooting
ranges; (4) hunting; (5) anywhere shooting is legal; (6) while on
duty in the armed forces; or (7) traveling to or from a place they
may legally possess such a weapon.” Id. at 990 (citing RCW
9.41.240(2), 9.41.042, 9.41.060).
72a
adulthood.” Id. at 992. Thus:
Against this historical backdrop, it is unsurprising
that laws prohibiting those under 21 from
purchasing firearms are longstanding. In the 19th
century, 19 states and the District of Columbia
enacted laws expressly restricting the ability of
individuals under 21 to purchase or use particular
firearms in jurisdictions where the age of majority
was set at 21. By the early twentieth century, three
more states had restricted the purchase or use of
particular firearms by persons under 21. Thus by
1923, over half the states then in the union had set
21 as the minimum age for purchase or use of
particular firearms.
This long-held tradition of restricting certain
firearm rights of 18-to-20-year-olds continues today.
Since 1968, federal law has prohibited [federal
firearms licensees] from selling handguns to persons
under 21. Currently, 17 states and the District of
Columbia have parallel or more exacting laws
prohibiting those under 21 from purchasing or
possessing handguns. And five states also prohibit
the sale of all long guns—not just [semiautomatic
assault rifles or] SARs—to individuals under 21.
Prohibiting SAR sales to 18-to-20-year-olds comports
with these longstanding laws.
Id. at 992-93 (citations omitted). The district court then
examined several post-Heller cases in which federal
courts held that age-based firearm restrictions fell
outside the scope of the Second Amendment. Id. at
993–94. It concluded, “[t]hese authorities demonstrate
that reasonable age restrictions on the sale, possession,
or use of firearms have an established history in this
73a
country.” Id. at 993. As such, the district court held
that the restrictions at issue did not violate the Second
Amendment rights of 18-to-20-year-olds. Id. at 994.
Even more recently, the United States District
Court for the Southern District of California upheld a
state law that the challengers characterized as
prohibiting 18-to-20-year-olds from purchasing, using,
transferring, possessing or controlling any firearm.
Jones v. Becerra, No. 19-1226, 2020 WL 6449198, at
*1–2 (S.D. Cal. Nov. 3, 2020). 5 The district court
reviewed the Fifth Circuit's decision in BATFE and
other post-Heller cases and held that “age-based
restrictions like the one in [the statute at issue] are
longstanding and presumptively [c]onstitutional.” Id.
at *4–5.
Plaintiffs do not cite any federal case that holds
that either age-based restrictions imposing limitations
on the ability to own or carry firearms, or age-based
limitations on the issuance of licenses, facially
implicate the Second Amendment under the first step
of the Marzzarella test and similar tests used in other
circuits. Nor is the Court aware of any such case(s).
Over twelve years after the Supreme Court's decision
in Heller, the established consensus of federal
appellate and district courts from around the country
is that age-based restrictions limiting the rights of 18The Court explained that California Penal Code § 27510
“imposed age-based restrictions on the sale, supply, delivery,
possession, or control of a firearm.” Id. at *2. The statute provided
limited exceptions for those with a hunting license, active duty
members of the military, active duty peace officers and honorably
discharged members of the military. Id.
5
74a
20-year-old adults to keep and bear arms fall under the
“longstanding” and “presumptively lawful” measures
recognized by the Supreme Court in Heller as evading
Second Amendment scrutiny.
3) The
Third
construction
under Heller.
Circuit
gives
broad
to licensing regimens
The Third Circuit has not yet addressed agerelated restrictions on the possession and use of guns.
It has, however, generally given broad construction to
Heller’s
recognition
of
“longstanding”
and
“presumptively valid regulatory measures” in the
context of licensing requirements. In Drake v. Filko,
724 F.3d 426 (3d. Cir. 2013), for example, the Third
Circuit examined and upheld a New Jersey statute
limiting the issuance of handgun permits to those who
could demonstrate a justifiable need. 6 In doing so, the
Court observed that even after Heller, the law is
unclear as to the scope of the Second Amendment
outside of the home. Id. at 431 (“We reject Appellants’
contention that a historical analysis leads inevitably to
the conclusion that the Second Amendment confers
upon individuals a right to carry handguns in public for
self-defense.”). The Court observed:
[W]e decline to definitively declare that the
individual right to bear arms for the purpose
of self-defense extends beyond the home, the
“core” of the right as identified by Heller. We
do, however, recognize that the Second
Under the New Jersey licensing regime, individuals who
wish to carry a handgun in public for self-defense must first obtain
a license. Id. at 428 (citing N.J.S.A. § 2C:39-5(b)).
6
75a
Amendment's individual right to bear arms
may have some application beyond the home.
Id. at 431. The Third Circuit ultimately concluded that
it was unnecessary to definitively address the scope of
the Second Amendment outside the home because
licensing requirements, including the challenged
justifiable need requirement, “fit[ ] comfortably within
the longstanding tradition of regulating the public
carrying of weapons for self-defense.” Id. at 433. Thus,
“assuming that the Second Amendment confers upon
individuals some right to carry arms outside the home,
we would nevertheless conclude that the ‘justifiable
need’ standard of the Handgun Permit Law is a
longstanding regulation that enjoys presumptive
constitutionality under the teachings articulated in
Heller and expanded upon in our Court's precedent.”
Id. at 434.
Plaintiffs’ claims here relate, in their essence, to
restrictions imposed upon them because of their
inability to obtain a license to carry a concealed firearm
due to their age. In light of the Circuit's position that
Heller gives states wide latitude on license-based
restrictions and the broad consensus of federal courts
permitting age-related restrictions, it is not a far
stretch of the Third Circuit's position on licensure
requirements to predict that it will give wide latitude
to the age-based licensing restrictions at issue here.
4) The challenged statutory regimen falls
under the class of “longstanding” and
“presumptively
lawful”
regulations
permitted by Heller.
76a
In analyzing Plaintiffs’ claims in light of the
caselaw examined above, it is important to restate that
they do not challenge any of the relevant provisions of
the Pennsylvania Uniform Firearms Act individually.
They do not, for example, argue that Section 6107,
standing alone, is unconstitutional, but only that it is
to the extent that Section 6109 limits the issuance of a
concealed carry permit to individuals over 21 years old
and Section 6106 criminalizes concealed carry and
transport without a license. (ECF No. 36, p. 10)
(“Plaintiffs do not challenge the carry restrictions
under 18 Pa. C.S. §§ 6106, 6109, or those under 18 Pa.
C.S. § 6107 standing alone, but instead the
enforcement of the three provisions together ....”). They
argue that the interaction of these three provisions
“combine to deprive 18-to-20-year-old Pennsylvanians
of the right to bear arms in public in any manner.”
(ECF No. 36, p. 10).
The real essence of Plaintiffs’ claims centers
upon the fact that they cannot obtain a concealed-carry
license because of their age under the limitations of
Section 6109, and to some extent, Section 6107 limits
what they can do, vis-à-vis firearms, without a license.
If they were able to obtain a license, the basis of their
claims would fall away. Thus, the focus of the Court's
examination of their claims under the first prong of the
Marzzarella test must center primarily upon the agebased restriction on their ability to obtain a license
more than the resultant restrictions caused by the
emergency declarations.
The Third Circuit and many other post-Heller
decisions have found that licensing requirements are
generally viewed as longstanding and presumptively
valid restrictions and generally do not implicate the
77a
Second Amendment. Further, there is broad consensus
among federal courts that individuals under the age of
21 may face restrictions consistent with the Second
Amendment. Indeed, age-based restrictions accepted
by courts have included far broader restrictions than
those at issue here. The confluence of these two
considerations—license
and
age-centered
restrictions—compels the Court to conclude that
Pennsylvania's age-based limitation on the issuance of
concealed carry licenses falls within the class of
“longstanding” and “presumptively lawful regulatory
measures” recognized by Heller as falling outside the
scope of the Second Amendment. Indeed, even as
amplified by the restrictions on open-carry imposed by
Section 6107, the age-based restrictions are still
consistent with, and in some cases significantly less
stringent than, measures found to have passed muster
in the cases above.
Plaintiffs argue that the restrictions at issue
cannot be considered “longstanding” because they do
not date to the founding period when the Second
Amendment was framed. (ECF No. 36, p. 18). As the
Fifth Circuit recognized in BATFE, that is not the
standard. See BATFE, 700 F.3d at 196–97 (“Heller
demonstrates that a regulation can be deemed
‘longstanding’ even if it cannot boast a precise
founding-era analogue.”). None of the cases cited above
addressed a statute that dated to the founding era.
Indeed, most of the statutes at issue were only decades
old, like the provisions of the Pennsylvania Uniform
Firearms Act of 1995 at issue here. The question is not
whether the challenged laws themselves date to the
founding, but rather, only whether they are the sort
that have long been accepted as being consistent with
the right to keep and bear arms. As the cases above
78a
illustrate, there is no question that age-based
restrictions on the ownership, use and, especially,
carrying of firearms have a long history in this
Country. A strong consensus exists among federal
courts that such restrictions fall outside the scope of
the rights protected by the Second Amendment. The
Court will adhere to that consensus and reach the same
result.
Here,
the
restrictions
imposed
by
Pennsylvania's statutes are much narrower than
characterized by Plaintiffs. Plaintiffs (and all 18-to-20year-olds) are not precluded from “the right to bear
arms in public in any manner” as they argue. The
limitations only apply to public streets and public
property. Further, even there, Plaintiffs are permitted
to keep and bear arms for a wide array of purposes,
including the defense of their persons and property, 7
7 Plaintiffs recognize that Section 6107 contains a specific
exception but argue that it is merely “empty reassurance” because
the general provisions of Sections 6106 and 6107 “utterly vitiate
the ‘[a]ctively engaged’ in self[-]defense proviso [of Section 6107].”
(ECF No. 36, p. 27). The Court recognizes that the scope of the
self-defense provision in Section 6107 is undefined by statute or
caselaw. In interpreting a Pennsylvania statute, the Court is
guided by the Pennsylvania Statutory Construction Act, 1 Pa. C.S.
§§ 1501–1504, 1901–1991. Some fundamental principles of the Act
are “[t]hat the General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable[,]” and “the
General Assembly intends the entire statute to be effective and
certain.” 1 Pa. C.S. § 1922(1)–(2). Indeed, a “bedrock principle of
statutory construction requires that a statute ‘be construed, if
possible, to give effect to all its provisions, so that no provision is
mere surplusage.” Commonwealth v. Gilmour Mfg. Co., 573 Pa.
143, 822 A.2d 676, 679 (2003) (quoting 1 Pa. C.S. § 1921(a)). The
Court will defer to Pennsylvania's courts to interpret that extent
of the self-defense exception of Section 6107 in the context of
actual cases exploring its scope and application. For the purposes
79a
hunting, target shooting and a variety of occupationbased purposes. At its core, the Second Amendment
protects the right of a citizen to keep and bear arms for
self-defense. Pennsylvania's statutes expressly
preserve this right, along with other purposes,
including sporting and recreational uses of firearms.
In BATFE and McCraw, the Fifth Circuit held
that statutes precluding the sale of handguns and
forbidding individuals under 21 from carrying
handguns (open or concealed) were examples of
“longstanding” and “presumptively lawful regulatory
measures.” Likewise, the courts in Powell and Jones
found that laws precluding those under 21 from
obtaining a firearm identification card and purchasing,
using, transferring, possessing or carrying a gun in any
manner did not infringe upon the rights protected by
the Second Amendment. In light of the consensus
amongst federal courts that age-based restrictions—
including restrictions more severe than imposed by the
Pennsylvania statutes at issue—fall under the class of
“longstanding” and “presumptively lawful” regulations
recognized in Heller, the Court is compelled to find that
the age-based restrictions at issue here fall outside the
scope of the Second Amendment. 8
of this case, the Court will take the language of Section 6107 as
written and accept that the restrictions imposed on Plaintiffs by
the Pennsylvania Uniform Firearms Act of 1995 include an
exception permitting them to use guns in self-defense.
8 Because the Court holds that the regulations at issue are the
type of “longstanding” and “presumptively valid” restrictions that
do not implicate the Second Amendment under the first prong of
the Marzzarella analysis, it is unnecessary for the Court to
proceed to an examination of the restrictions under intermediate
scrutiny. While respecting that some courts, having found that the
first prong was not satisfied, will nevertheless undertake a belt-
80a
CONCLUSION
For the reasons set forth above, the Court
GRANTS Defendant's Motion to Dismiss Plaintiffs’
Complaint. Although not formally styled as such, each
of the Counts in Plaintiffs’ Complaint invoke 42 U.S.C.
§ 1983 (ECF No. 1. ¶¶ 93, 106, 119). Although leave to
amend is generally to be afforded in cases asserting
claims under § 1983, it is not necessary if the Court
finds that amendment would be inequitable or futile.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 246 (3d.
Cir. 2008). Plaintiffs’ claims here fail as a matter of law
and cannot be cured by amendment. It would, indeed,
be futile. As such, their Complaint is dismissed with
prejudice. With the failure of the substantive claims in
the Complaint, Plaintiffs’ Motion for Preliminary
Injunction (ECF No. 11) is DENIED as moot.
BY THE COURT:
04/16/2021
Dated
/s/ William S. Stickman IV
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE
and-suspenders approach and analyze the second prong, this
Court declines to do so. The Marzzarella test is sufficiently well
established that the Court does not believe there is any question
that its disposition under the first prong is, alone, sufficient to
decide all of the issues at bar. Thus, proceeding to the second
prong for an “even-if” analysis would be an exercise in dicta. To
the extent that an appellate court would disagree with the Court's
prong-one determination, the Court will address the second prong
with the benefit of a more developed record addressing the specific
relationship between the restrictions at issue and, for example,
states of emergency arising out of opioid addiction and
communicable disease.
81a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
_____________
MADISON M. LARA, et al.,
Plaintiffs,
v.
COMMISSIONER PENNSYLVANIA STATE
POLICE,
Defendant.
_____________
Civil Action No.2:20-cv-1582
Hon. William S. Stickman IV
_____________
ORDER OF COURT
AND NOW, this 16th day of April 2021, IT IS
HEREBY ORDERED for the reasons set forth in the
Opinion filed this day, the motion for Preliminary
Injunction (ECF No. 11) is DENIED and the Motion to
Dismiss (ECF No. 23) is GRANTED. All counts against
the Defendants are hereby DISMISSED with
prejudice. The Clerk of Court is directed to mark this
CASE CLOSED.
BY THE COURT:
/s/ William S. Stickman IV
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE
82a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
_____________
MADISON M. LARA, et al.,
Plaintiffs,
v.
COMMISSIONER PENNSYLVANIA STATE
POLICE,
Defendant.
_____________
Civil Action No.2:20-cv-1582
Hon. William S. Stickman IV
_____________
ORDER OF COURT
AND NOW, this 16th day of April 2021, IT IS
HEREBY ORDERED that pursuant to Federal Rule of
Civil Procedure 58 judgment is entered in favor of
Defendant and against Plaintiffs. The Clerk of Court is
directed to mark this CASE CLOSED.
BY THE COURT:
/s/ William S. Stickman IV
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE
83a
APPENDIX E
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
_____________
SUR PETITION FOR REHEARING
_____________
Present: CHAGARES, Chief Judge, JORDAN,
HARDIMAN, SHWARTZ, KRAUSE, RESTREPO,
BIBAS, PORTER, MATEY, PHIPPS, FREEMAN,
84a
MONTGOMERY-REEVES, CHUNG, and SMITH, *
Circuit Judges
The petition for rehearing filed by appellant in
the above-entitled case having been submitted to the
judges who participated in the decision of this Court
and to all the other available circuit judges of the
circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing,
and a majority of the judges of the circuit in regular
service not having voted for rehearing, the petition for
rehearing by the panel and the Court en banc, is
DENIED. Judges Shwartz, Krause, Restrepo,
Freeman, Montgomery-Reeves and Chung voted to
grant the petition. Judge Krause files the attached
dissent.
BY THE COURT
s/ Kent. A. Jordan
Circuit Judge
Date: March 27, 2024
cc: All counsel of record.
* Judge Smith’s vote is limited to panel rehearing only.
85a
APPENDIX F
KRAUSE, Circuit Judge, dissenting sur denial of
rehearing en banc.
When they ratified the Second Amendment, our
Founders did not intend to bind the nation in a
straitjacket of 18th-century legislation, nor did they
mean to prevent future generations from protecting
themselves against gun violence more rampant and
destructive than the Founders could have possibly
imagined. At a minimum, one would think that the
states’ understanding of the Second Amendment at the
time of the “Second Founding” 1—the moment in 1868
when they incorporated the Bill of Rights against
themselves—is part of “the Nation's historical tradition
of firearms regulation” 2 informing the constitutionality
of modern-day regulations.
Indeed, since the Supreme Court tethered their
constitutionality to the existence of historical
precedent in District of Columbia v. Heller, 554 U.S.
570 (2008), we and the other Courts of Appeals have
consistently looked to Reconstruction-era, as well as
Founding-era sources, and, even as the Supreme Court
has acknowledged the “ongoing scholarly debate” about
their relevance, 3 it too has relied on Reconstruction-era
1 See, e.g., Eric Foner, The Second Founding: How The Civil
War and Reconstruction Remade The Constitution (2019); see also
Students for Fair Admissions, Inc. v. President & Fellows of
Harvard Coll., 600 U.S. 181, 143 S. Ct. 2141, 2175, 216 L.Ed.2d
857 (2023) (referring to the incorporation of the Bill of Rights as
“a Second Founding”).
2 N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.
Ct. 2111, 2126, 213 L.Ed.2d 387 (2022).
3 Id. at 2138.
86a
sources in each of its recent major opinions on the right
to bear arms. Notably, the Supreme Court is expected
within the next few months, if not weeks, to issue its
next seminal opinion, clarifying its historical
methodology in the absence of Founding-era analogues.
Yet despite our own precedent acknowledging
the relevance of Reconstruction-era sources, our
recognition in an en banc opinion just last year that the
Supreme Court relies on both Founding-era and
Reconstruction-era sources, 4 and an imminent decision
from the Supreme Court that may prove dispositive to
this case, the panel majority here announced—over
Judge Restrepo's compelling dissent—that all
historical sources after 1791 are irrelevant to our
Nation's historical tradition and must be “set aside”
when seeking out the “historical analogues” required to
uphold a modern-day gun regulations. 5 The panel
majority then held—based exclusively on 18th-century
militia laws and without regard to the voluminous
support the statutory scheme finds in 19th-century
analogues—that Pennsylvania's prohibition on 18-to20-year-old youth carrying firearms in public during
statewide emergencies is unconstitutional. 6
The panel majority was incorrect, but more
importantly, it erred profoundly in the methodology to
4 Range v. Att'y Gen., 69 F.4th 96, 104 (3d Cir. 2023) (en banc),
petition for cert. filed sub nom. Garland v. Range, No. 23-374 (U.S.
Oct. 5, 2023).
5 Lara v. Comm'r Pa. State Police, 91 F.4th 122, 134 (3d Cir.
2024).
Id. (discussing Sections 6106, 6107, and 6109 of
Pennsylvania's Uniform Firearms Act of 1995, 18 Pa. Cons. Stat.
§§ 6101–6128 (2024)).
6
87a
which it purports to bind this entire Court and with farreaching consequences. Against this backdrop, we
should be granting Pennsylvania's petition for en banc
review, 7 supported by 17 other states and the District
of Columbia as amici, or at least holding it c.a.v.
pending the Supreme Court's decision in United States
v. Rahimi. 8 But instead, over the objection of nearly
half our Court, we are denying it outright.
I respectfully dissent from that denial for four
reasons. First, without en banc review, the panel
majority's pronouncement cannot bind future panels of
this Court. We have held Reconstruction-era sources to
be relevant in decisions both before and after Bruen so,
under our case law and our Internal Operating
Procedures, en banc rehearing is necessary before any
subsequent panel can bind our Court to a contrary
position. 9 Second, en banc review would allow us to
apply the proper historical methodology, which would
compel a different outcome in this case. Third, en banc
review is necessary for error correction: Even if we
limit ourselves to Founding-era sources, the panel
failed to recognize that legislatures in that era were
authorized to categorically disarm groups they
reasonably judged to pose a particular risk of danger,
and Pennsylvania's modern-day judgment that youth
See generally Commissioner's Petition for Rehearing, or,
Alternatively, Rehearing En banc, Lara, 91 F.4th 122 (No. 211832), ECF No. 81.
7
8 No. 22-915 (U.S. argued Nov. 7, 2023); see Brief of Amici
Curiae Illinois et al. in Support of Defendant-Appellee's Petition
for Rehearing or Rehearing En banc, Lara, 91 F.4th 122 (No. 231832), ECF No. 82 (explaining the wide-ranging impact of the
divided panel's majority opinion for states across the country).
9 See 3d Cir. I.O.P. 9.1.
88a
under the age of 21 pose such a risk is well supported
by evidence subject to judicial notice. And fourth, the
majority's narrow focus on the Founding era demands
rehearing because it ignores the Supreme Court's
recognition that “cases implicating unprecedented
societal concerns or dramatic technological changes
may require a more nuanced approach.” 10 For each of
these reasons, discussed in turn below, en banc review
should be granted.
A. En banc Consideration Is Necessary
Before Our Court Can Adopt the Panel
Majority's Novel Methodology.
Confronted with 19th-century regulations
supporting the constitutionality of Pennsylvania's
statutory scheme, the panel majority took the position
that it could simply “set aside” that evidence based on
its pronouncement that “the Second Amendment
should be understood according to its public meaning
in 1791,” rather than “according to [its] public meaning
in 1868.” Lara v. Comm'r Pa. State Police, 91 F.4th 122,
134 (3d Cir. 2024). But that novel methodology, which
the majority attempted to ground in a “hint” in New
York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142
S. Ct. 2111, 213 L.Ed.2d 387 (2022), and inferences
from cases outside the Second Amendment context, see
Lara, 91 F.4th at 133, not only contravened Bruen and
other Supreme Court precedent within the Second
Amendment context, see infra, but also violated our
Internal Operating Procedures by purporting to
overrule the holdings of prior panels without either en
10 Bruen, 142 S. Ct. at 2131, 2132.
89a
banc review or clear abrogation of our prior precedent
by the Supreme Court, see 3d Cir. I.O.P. 9.1.
For its part, the Supreme Court has cited to and
relied upon Reconstruction-era sources, in addition to
Founding-era sources in all of its recent Second
Amendment
cases—Bruen
included.
Whatever
“hint[s]” the panel majority may take from Bruen,
Lara, 91 F.4th at 133, the Supreme Court there
recognized that states are “bound to respect the right
to keep and bear arms because of the Fourteenth
Amendment, not the Second,” and proceeded to
consider not just 18th-century analogues but also
“[e]vidence from around the adoption of the Fourteenth
Amendment,” Bruen, 142 S. Ct. at 2137, 2150. The
Supreme Court has also cited Reconstruction-era
sources as relevant historical evidence in its other
Second Amendment cases. See, e.g., McDonald v. City
of Chicago, 561 U.S. 742, 777 (2010) (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 fundamental 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 ratification
through the end of the 19th century.”).
Until the underlying panel opinion here, our
Court, too, has followed the Supreme Court's
instruction
and
consistently
relied
upon
Reconstruction-era sources, alongside Founding-era
sources, as relevant historic analogues in defining “the
Nation's historical tradition of firearm regulation.”
Bruen, 142 S. Ct. at 2126; see, e.g., Frein v. Pa. State
Police, 47 F.4th 247, 255 (3d Cir. 2022) (“Plus, the
Fourteenth Amendment's ratifiers understood that it
90a
would stop gun seizures.”); Drummond v. Robinson
Township, 9 F.4th 217, 228 (3d Cir. 2021) (“Some
Colonial and Reconstruction Era governments made it
illegal to sell guns to enslaved or formerly enslaved
people and members of Native American tribes.”),
abrogated on other grounds by Bruen, 142 S. Ct. 2111;
Folajtar v. Att'y Gen., 980 F.3d 897, 905 (3d Cir. 2020)
(considering statutes from “the turn of the nineteenth
century”), abrogated on other grounds by Bruen, 142 S.
Ct. 2111.
Most recently, our en banc opinion in Range
likewise acknowledged that Reconstruction-era
sources are relevant. We acknowledged Bruen’s
“emphasis on Founding and Reconstruction-era
sources” and rejected only the notion that a statute
enacted “nearly a century after the Fourteenth
Amendment's ratification” could be considered
“longstanding.” Range v. Att'y Gen., 69 F.4th 96, 104
(3d Cir. 2023) (en banc) (emphasis added), petition for
cert. filed sub nom. Garland v. Range, No. 23-374 (U.S.
Oct. 5, 2023). Thus, both pre-and post-Bruen, we—
along with other Courts of Appeals 11—have held
11 As the First Circuit recently observed, while Bruen “indeed
indicated that founding-era historical precedent is of primary
importance for identifying a tradition of comparable regulation,”
it also “relied upon how the Second Amendment was interpreted
from immediately after its ratification through the end of the 19th
century” and “likewise left open the possibility that late-19thcentury evidence and 20th-century historical evidence may have
probative value if it does not contradict[ ] earlier evidence.” Ocean
State Tactical, LLC v. Rhode Island, 95 F.4th 38, 51 (1st Cir. 2024)
(internal citations and quotation marks omitted)). See also
Antonyuk v. Chiumento, 89 F.4th 271, 305 (2d Cir. 2023) (“We
therefore agree with the decisions of our sister circuits—
emphasizing the understanding that prevailed when the States
adopted the Fourteenth Amendment—is, along with the
91a
Reconstruction-era sources to be both relevant and
informative.
In view of this precedent, en banc rehearing is
required before any subsequent panel has authority to
hold—let alone to bind this Court to a holding—that
Reconstruction-era sources must henceforth be “set
aside,” Lara, 91 F.4th at 134, when interpreting the
Second Amendment. See 3d Cir. I.O.P. 9.1 (providing
that prior panels’ holdings are “binding on subsequent
panels” and “no subsequent panel overrules the
holding ... of a previous panel” because “Court en banc
consideration is required to do so.”).
The only exception to this well-established rule
arises when the “prior panel's holding is in conflict with
Supreme Court precedent.” Karns v. Shanahan, 879
F.3d 504, 514–15 (3d Cir. 2018) (quotation marks
omitted). But that is not the case here. Even the Lara
panel acknowledged it was acting on what it perceived
as a “hint” the Supreme Court dropped in Bruen, not a
holding. Lara, 91 F.4th at 133. Bruen, in fact,
understanding of that right held by the founders in 1791, a
relevant consideration.” (internal citations and quotation marks
omitted)), petition for cert. filed sub nom. Antonyuk v. James, No.
23-910 (U.S. Feb. 20, 2024); Ezell v. City of Chicago, 651 F.3d 684,
705 (7th Cir. 2011) (“[T]he most relevant historical period for
questions about the scope of the Second Amendment as applied to
the States is the period leading up to and surrounding the
ratification of the Fourteenth Amendment.”), abrogated on other
grounds by Bruen, 142 S. Ct. 2111; United States v. Greeno, 679
F.3d 510, 518 (6th Cir. 2012) (similar), abrogated on other grounds
by Bruen, 142 S. Ct. 2111; Gould v. Morgan, 907 F.3d 659, 669 (1st
Cir. 2018) (discussing a “comprehensive survey of the historical
record,” which included laws from the 19th century), abrogated on
other grounds by Bruen, 142 S. Ct. 2111; see also Brief of Amici
Curiae Illinois et al., supra note 7, 12 (collecting cases).
92a
reiterated the “methodological approach to the Second
Amendment” that the Court adopted in Heller,
including its rejection of the notion that
Reconstruction-era
sources
were
“illegitimate
postenactment legislative history.” 142 S. Ct. at 2127
(quotation marks omitted). It also confirmed that
examination of sources from that era—including “19thcentury cases,” congressional and public “discourse
after the Civil War,” and the understanding of postCivil War commentators—“was a critical tool of
constitutional interpretation” in understanding the
Second Amendment. Id. at 2127–28 (quotation marks
omitted). And although the Court cautioned against
giving postenactment history “more weight than it can
rightly bear” and noted that it has “generally assumed
that the scope of the protection 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,” the Court was explicit that it was not
resolving the “debate on 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.” Id. at 2137–
38.
Ironically, the Court appears poised to sway, if
not resolve, that debate in its forthcoming decision in
United States v. Rahimi, No. 22-915 (U.S. argued Nov.
7, 2023). The question presented there is whether
prohibiting a domestic abuser from possessing a
firearm, under 18 U.S.C. § 922(g)(8), violates the
Second Amendment in the absence of comparable
Founding-era precedent. Thus, Rahimi seems likely to
address
whether
courts
evaluating
the
constitutionality of modern-day legislation may
consider developments in the law post-ratification or
93a
are indeed constrained to Founding-era sources. 12
Why, then, are we denying Pennsylvania's petition for
review, declining even to hold it c.a.v. for Rahimi’s
forthcoming guidance, and ruling instead based on a
supposed “hint” in Bruen? Hints and assumptions by
the Supreme Court are not holdings, see Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993), and neither can
justify our denial of rehearing en banc when the novel
approach of a divided panel purports to overturn our
precedent.
In sum, our failure to grant en banc rehearing
not only creates a circuit split and allows an opinion
resting on an invalid premise to stand; it also means
the
panel
majority's
holding
concerning
Reconstruction-era sources will not bind this Court
going forward. To the contrary, “where our cases
conflict, the earlier is the controlling authority and the
latter is ineffective as precedent.” Bracey v.
Superintendent Rockview SCI, 986 F.3d 274, 290 n.14
(3d Cr. 2021) (cleaned up) (citing 3d Cir. I.O.P. 9.1). The
petition for rehearing thus should be granted to secure
the uniformity of our Second Amendment case law, or
if not granted, at least held c.a.v. for the forthcoming
opinion in Rahimi.
12 This petition should be held c.a.v. for the additional reason
that Rahimi appears likely to address one or more other
dispositive issues, including who counts among “the People”
protected by the Second Amendment; the contours of Bruen’s
“history and tradition” test; the level of deference we should give
legislatures in making categorical, predictive judgments about
groups that pose particular risks; what, if any, findings
legislatures must make to justify those judgments; and whether
evidence of legislative authority to make those judgments includes
consensus among the states today. See generally Brief for the
United States, Rahimi, No. 22-915 (U.S. Aug. 14, 2023).
94a
Banc Rehearing Is Necessary
Because
Under
the
Proper
Methodology, Pennsylvania's Statutory
Scheme is Constitutional.
B. En
Because Reconstruction-era sources are relevant
and the panel majority disregarded them, en banc
rehearing is the only way to conduct the comparative
analysis Bruen requires. That analysis compels a
different outcome. Judge Restrepo catalogued the
historical evidence that “[a]t the Founding, people
under 21 lacked full legal personhood,” so, at the first
step of the Bruen test, those youth are not among “the
people” protected by the text of the Second
Amendment. Lara, 91 F.4th at 142 (Restrepo, J.,
dissenting). He also persuasively explained why, even
if we reach Bruen’s second step and determine whether
the regulation is “consistent with the Nation's
historical tradition of firearm regulation,” Bruen, 142
S. Ct. at 2126, Pennsylvania's statutory scheme is
constitutional. Among other reasons, he observed that
“at least 17 states passed laws restricting the sale of
firearms to people under 21” between 1856 and 1893.
See Lara, 91 F.4th at 147 (Restrepo, J., dissenting)
(citing Bruen, 142 S. Ct. at 2129–30).
I join that conclusion and offer here some
concrete examples of ways that the “how” and “why” of
those historical statutes map onto Pennsylvania's. 13
13 Although Bruen eschewed a free-standing “means-end
scrutiny” or “interest-balancing inquiry” for modern-day
regulations, 142 S. Ct. at 2129, it embraced a comparative meansend analysis by directing us to look to “how” (the means) and
“why” (the end) historical “regulations burden a law-abiding
citizen's right to armed self-defense” and then to consider whether
95a
By way of background, before the Fourteenth
Amendment was ratified in 1868, a number of states
treated 21 as the age of majority 14 and effectively
prevented, or at least hindered, “minors” from even
obtaining firearms. See, e.g., 1856 Ala. Laws 17; 1859
Ky. Acts 245, § 23; 1856 Tenn. Pub. Acts 92. Other
states adopted similar regulations in the years
immediately after ratification, see, e.g., 1875 Ind. Acts
59; 1879 Mo. Rev. Stat. § 1274; 1878 Miss. Laws 175–
76, 15 signaling that the generation that incorporated
the Second Amendment against the states did not
understand it to limit their ability to pass such
regulations, see Bruen, 142 S. Ct. at 2136–37
(acknowledging that historical examples from the
years immediately following ratification can, in some
cases, provide evidence about the public understanding
of an Amendment). Indeed, a 19th century treatise
written by “the most famous” voice on the Second
Amendment at the time, Heller, 554 U.S. at 616,
explained that states “may prohibit the sale of arms to
minors,” Thomas M. Cooley, Treatise on Constitutional
Limitations 740 n.4 (5th ed. 1883).
the “modern ... regulation[ ] impose[s] a comparable burden ...
[that] is comparably justified,” id. at 2133.
14 See, e.g., Vincent v. Rogers, 30 Ala. 471, 473 (1857)
(describing a minor as an individual “under twenty-one years of
age”); Warwick v. Cooper, 37 Tenn. (5 Sneed) 659, 660–61 (1858)
(referring to 21 as the age of majority); Newland v. Gentry, 57 Ky.
(18 B. Mon.) 666, 671 (1857) (referring to 21 as the age of
majority); 1879 Mo. Rev. Stat. § 2559 (explaining that a male is a
minor until he turns 21, and a female is a minor until she turns
18).
15 See also Jones v. Bonta, 34 F.4th 704, 740 (9th Cir. 2022)
(collecting statutes), vacated on reh'g, 47 F.4th 1124 (9th Cir.
2022).
96a
By broadly criminalizing any attempt to convey
a firearm to those under the age of 21, these statutes
effectively prevented young citizens not just from
carrying publicly in times of emergency, but from
possessing firearms at all. Thus, as to “how” these
prohibitions burdened the right to bear arms, the 18thcentury laws were far more onerous than
Pennsylvania's, which prohibits such youth only from
carrying publicly during statewide emergencies, see 18
Pa. Cons. Stat. §§ 6106, 6107, 6109. If the generation
that incorporated the Bill of Rights against the states
believed that states could constitutionally impose more
burdensome gun regulations on this age group, a
fortiori it would have viewed Pennsylvania's more
limited prohibition as constitutional.
In terms of “why” the statutes were enacted,
these Reconstruction-era laws again are comparable to
Pennsylvania's statutory scheme—certainly more so
than the Founding-era militia statutes on which the
panel majority relied. As I discuss in greater detail in
Section D, infra, interpersonal gun violence “was not a
problem in the Founding era that warranted much
attention,” in large part because the firearms that our
Founders possessed simply lacked the capacity of those
today to inflict mass casualties in a matter of seconds. 16
By the late 19th century, however, “gun violence had
emerged as a serious problem in American life.” 17 This
16 Saul Cornell, The Right to Carry Firearms Outside of the
Home: Separating Historical Myths from Historical Realities, 39
Fordham Urb. L. J. 1695, 1713 (2012).
17 Saul Cornell, The Right to Regulate Arms in the Era of the
Fourteenth Amendment: The Emergence of Good Cause Permit
97a
development was fueled by the mass production of
firearms that began during the wave of American
industrialization in the mid-19th century, 18 and it was
accompanied by renewed efforts to market gun
ownership to the average American consumer. 19 It was
also driven by “the trauma of the [Civil War] and the
enormous increase in the production of guns necessary
to supply two opposing armies,” which “intensified the
problem posed by firearms violence and gave a new
impetus to regulation.” 20
In this changed America, “interpersonal gun
violence and the collective terrorist violence
perpetuated by groups such as the Ku Klux Klan”
replaced the “ancient fears of tyrannical Stuart
monarchs and standing armies” that preoccupied the
Founding generation. 21 Those same concerns about
public safety apply to today's America, where
increasingly deadly firearms are mass-produced at an
Schemes in Post-Civil War America, 55 U.C. Davis L. Rev. Online
65, 69 (2021).
18 James B. Jacobs and Alex Haberman, 3D-Printed Firearms,
Do-It-Yourself Guns, & the Second Amendment, 80 Law &
Contemp. Probs. 129, 137–38 (2017); see also David Yamane, The
Sociology of U.S. Gun Culture, 11 Sociology Compass 1, 2 (2017)
(“The 19th century shift from craft to industrial production, from
hand-made unique parts to machine-made interchangeable parts,
dramatically increased manufacturing capacities, and gun
manufacturing played a central role in this development.”).
19 See Pamela Haag, The Gunning of America: Business and
the Making of American Gun Culture xvii–xxi (2016) (explaining
how gun manufacturers employed new marketing strategies to
create a civilian market for firearms in the 19th century).
20 Cornell (2021), supra note 17, at 69.
21 Id.
98a
unprecedented rate, 22 and have motivated states like
Pennsylvania to regulate the ability of still-maturing
young people to carry firearms. 23
In short, both the “how” and the “why” of
Pennsylvania's
statute
track
those
of
its
Reconstruction-era analogues, so en banc rehearing
would allow us not just to correct the panel's mistaken
methodology, but also its mistaken result.
C. En Banc Rehearing Is Also Necessary
for Proper Consideration of FoundingEra Sources.
Even if we were to follow the majority's approach
and “set aside the Commissioner's catalogue of statutes
from the mid-to-late nineteenth century,” Lara, 91
F.4th at 134, en banc rehearing is warranted because
Pennsylvania's statutory scheme has support in
Founding-era history to which we look for a “match ...
in principle, not with precision.” Range, 69 F.4th at 117
(Krause, J., dissenting).
It is by now well established that, as then-Judge
Barrett put it, “founding-era legislatures categorically
disarmed groups whom they judged to be a threat to
the public safety.” Kanter v.
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