United States of America v. Heriberto Carbajal -Flores

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1534
U NITED STATES OF A MERICA ,
Plaintiff-Appellant,
v.
HERIBERTO C ARBAJAL -FLORES ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00613-1 — Sharon Johnson Coleman, Judge.
____________________
A RGUED J ANUARY 22, 2025 — D ECIDED J ULY 16, 2025
____________________
Before R OVNER , BRENNAN, and S T . EVE , Circuit Judges.
BRENNAN, Circuit Judge. Chicago Police arrested Heriberto
Carbajal-Flores after he repeatedly fired his pistol in a city
street. A grand jury later indicted him for possessing a firearm
as an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A). We
must decide whether that federal law comports with the Sec-
ond Amendment.

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2 No. 24-1534
I
Carbajal-Flores was born in Mexico. His mother brought
him to the United States in 2002 when he was ten years old.
Since then, he has resided in Chicago. Carbajal-Flores now
claims the status of a lawful permanent resident. But at all
times relevant to this appeal, he was an illegal alien.
On the night of June 1, 2020, during a summer of unrest
across the country, a police-observation camera captured
video of Carbajal-Flores in Chicago’s Little Village neighbor-
hood shooting a pistol seven times at a passing car. Surveil-
lance showed that he later tried to shoot at another car, but his
firearm jammed. Based on this footage, officers arrested him.
Carbajal-Flores justifies the shooting, explaining that he
was protecting his community from a perceived threat. He
claims to have merely fired warning shots toward individuals
he believed looted a neighborhood store. In the government’s
view, Carbajal-Flores took to the streets amid the civil unrest
and, without provocation, indiscriminately fired his weapon
at passing cars.
Either way, Carbajal-Flores does not dispute that he pos-
sessed a firearm that night. And, at the time, he was unlaw-
fully present in the United States. A grand jury thus indicted
him for violating 18 U.S.C. § 922(g)(5)(A), which forbids “an
alien” who “is illegally or unlawfully in the United States”
from possessing a firearm.
Carbajal-Flores moved to dismiss the indictment, chal-
lenging the constitutionality of § 922(g)(5)(A), as applied to
him, on Second Amendment grounds. See FED. R. C RIM. P.
12(b)(3)(B). The district court denied the motion and cited
United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), in

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No. 24-1534 3
which this court upheld the same statute in the face of a sim-
ilar constitutional challenge.
The Supreme Court then issued its landmark Second
Amendment decision, New York State Rifle & Pistol Ass’n v.
Bruen, 597 U.S. 1 (2022). There, the Court clarified the proper
framework courts must apply when analyzing Second
Amendment challenges to firearm regulations. The test is
“rooted in the Second Amendment’s text, as informed by his-
tory.” Id. at 19. Following Bruen, Carbajal-Flores again moved
to dismiss the indictment, arguing § 922(g)(5)(A) violated the
Constitution under the text-and-history test. The district court
was unpersuaded, concluding that the law is consistent with
our Nation’s tradition of regulating firearms.
This court then decided Atkinson v. Garland, 70 F.4th 1018
(7th Cir. 2023). In that case, we offered district courts and par-
ties guidance on how to analyze challenges to § 922(g)(1)—
which bars felons from possessing firearms—under Bruen’s
framework. See id. at 1023–24. Carbajal-Flores, seeing an op-
portunity, moved to dismiss the indictment once more and
cited Atkinson for support. He urged the district court to hold
§ 922(g)(5)(A) unconstitutional both on its face and as applied
to him.
The district court declined Carbajal-Flores’s first request
and deemed the statute facially constitutional. Applying
Bruen’s text-and-history framework, it concluded that the
plain text of the Second Amendment presumptively secures
for illegal aliens the right to possess firearms. But it held that
the government rebutted the presumption by identifying a
historical tradition of disarming “untrustworthy adherents to
the law,” including British loyalists at the time of the

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4 No. 24-1534
Founding. To the court, that tradition justified disarming ille-
gal aliens today.
Although the district court rejected Carbajal-Flores’s facial
challenge, it found merit in his as-applied challenge. Laws
disarming British loyalists did not apply to those willing to
pledge their loyalty to the nascent American government.
Once an individual disclaimed his loyalty to the British
government, he was no longer considered dangerous or un-
trustworthy and could therefore possess a firearm. From this
historical exemption, the district court reasoned that Con-
gress may disarm only untrustworthy or dangerous illegal al-
iens. It then concluded that Carbajal-Flores is a trustworthy
adherent to the law because, among other things, he is em-
ployed and has no felony convictions. So, as applied to him,
§ 922(g)(5)(A) violated the Second Amendment.
The government appeals, contesting the district court’s
dismissal of the indictment.
II
The Second Amendment secures “the right of the people
to keep and bear Arms.” U.S. C ONST . amend II. In District of
Columbia v. Heller, the Supreme Court held that the right be-
longs to individuals, irrespective of their ties to the military.
554 U.S. 570, 595 (2008). And the Court has since confirmed
that the people’s freedom to carry arms is not a “second-class
right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)
(plurality opinion). It ranks instead “among the fundamental
rights necessary to our system of ordered liberty.” United
States v. Rahimi, 602 U.S. 680, 690 (2024) (internal quotation
omitted).

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No. 24-1534 5
The protections contained in the Second Amendment have
their limits, though. Heller, 554 U.S. at 626. The government
maintains some latitude to regulate who may possess fire-
arms, Rahimi, 602 U.S. at 702, what firearms they may possess,
Heller, 554 U.S. at 625, and where they may possess them.
Bruen, 597 U.S. at 30; see also Range v. Att’y Gen., 124 F.4th 218,
225 (3d Cir. 2024) (en banc) (listing the ways in which firearms
are regulated).
But like the constitutional right itself, the government’s
power to regulate has its limits. The Supreme Court in Bruen
set out the now-familiar test for evaluating whether a firearm
restriction exceeds those limits. To begin, a court must inter-
pret the Second Amendment’s plain text. When the text
covers an individual and his conduct, “the Constitution pre-
sumptively” offers protection. Bruen, 597 U.S. at 24; United
States v. Williams, 113 F.4th 637, 649–50 (6th Cir. 2024).
The government may rebut that presumption, however,
by persuading the court that the regulatory burden “is
consistent with the Nation’s historical tradition of firearm reg-
ulation.” Bruen, 597 U.S. at 24. This requires reasoning by
analogy. A modern regulation with “relevantly similar” his-
torical counterparts will survive scrutiny. Rahimi, 602 U.S. at
692 (quoting Bruen, 597 U.S. at 29). The task does not demand
identifying “historical twin[s]” or “dead ringer[s].” Bruen, 597
U.S. at 30 (emphasis omitted). The government must instead
show only that its modern regulation conforms to “the prin-
ciples that underpin our regulatory tradition.” Rahimi, 602
U.S. at 692. Courts rely on two metrics when assessing the
strength of analogies. Bruen, 597 U.S. at 29. We compare
“how” the challenged regulation burdens the right to bear
arms to the way in which the historical precursors did. And

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6 No. 24-1534
we consider whether the reasons for regulating are similar—
that is, we ask “why” the government burdened the right now
and then. The closer the fit, the more likely the challenged law
“fall[s] within a permissible category of regulations.” Rahimi,
602 U.S. at 692.
A
We begin with the Second Amendment’s text. Nobody dis-
putes that Carbajal-Flores’s weapon, a .25 caliber semi-auto-
matic pistol, is an arm. Heller, 554 U.S. at 581 (defining “arms
as any thing that a man wears for his defence, or takes into his
hands, or useth in wrath to cast at or strike another.” (internal
quotations omitted)). Rather, the parties argue about whether
Carbajal-Flores, an illegal alien, is among “the people” that
the Amendment protects. According to the government, he is
not because that term covers only American citizens.
The Supreme Court has not squarely addressed this tex-
tual question. But it stated in Heller that “‘[t]he people’ seems
to have been a term of art employed in select parts of the Con-
stitution” to “refer[] to a class of persons who are part of a
national community or who have otherwise developed suffi-
cient connection with this country to be considered part of
that community.” 554 U.S. at 580 (internal quotations omit-
ted). The Court imported that definition from United States v.
Verdugo-Urquidez, a Fourth Amendment decision. 494 U.S.
259, 265 (1990). To be sure, the Court cautioned that its “tex-
tual exegesis” in Verdugo-Urquidez was “by no means
conclusive.” Id. Nonetheless, this court relied in part on that
definition in Meza-Rodriguez to conclude that some illegal al-
iens are among “the people” presumptively entitled to Sec-
ond Amendment protections. 798 F.3d at 670–72; see also
United States v. Jimenez-Shilon, 34 F.4th 1042, 1044–45 (11th Cir.

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No. 24-1534 7
2022) (collecting Founding-era dictionary definitions that pro-
vide some support for the Verdugo-Urquidez definition).
This court’s holding in Meza-Rodriguez positions us as an
outlier among our fellow circuits. Some courts of appeals
have concluded that illegal aliens are categorically excluded
from “the people.” United States v. Portillo-Munoz, 643 F.3d
437, 442 (5th Cir. 2011); United States v. Flores, 663 F.3d 1022,
1023 (8th Cir. 2011) (per curiam); see also United States v. Car-
pio-Leon, 701 F.3d 974, 979 (4th Cir. 2012) (holding “that the
Second Amendment right to bear arms does not extend to il-
legal aliens”). Still others have assumed without deciding that
illegal aliens fall within the scope of the Second Amendment’s
protections. United States v. Perez, 6 F.4th 448, 453 (2d Cir.
2021); United States v. Torres, 911 F.3d 1253, 1261 (9th Cir.
2019); United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th
Cir. 2012); Jimenez-Shilon, 34 F.4th at 1045–46.
Meza-Rodriguez predates the Supreme Court’s decisions in
Bruen and Rahimi, which are part of a sea change in Second
Amendment jurisprudence. Portions of this court’s decision
were no doubt abrogated by the intervening precedent—spe-
cifically, those portions in which we engaged in an interest
balancing inquiry to uphold § 922(g)(5)(A), as opposed to re-
lying solely on text and history. Meza-Rodriguez, 798 F.3d at
672–73. But the Supreme Court in Bruen said “nothing about
who may lawfully possess a firearm.” 597 U.S. at 72 (Alito, J.,
concurring). And in Rahimi it all but passed over the threshold
textual inquiry—perhaps because nobody really disputed
that the Second Amendment presumptively covered the indi-
vidual and conduct at issue there. See 602 U.S. at 751–52
(Thomas, J., dissenting). So, no intervening Supreme Court
precedent requires us to reassess here whether some illegal

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8 No. 24-1534
aliens are among “the people.” See United States v. Medina-
Cantu, 113 F.4th 537, 539 (5th Cir. 2024) (per curiam) (conclud-
ing that neither Bruen nor Rahimi “unequivocally
abrogate[d]” that court’s earlier holding that illegal aliens
were not among “the people”), cert. denied, 145 S. Ct. 1318
(2025); United States v. Sitladeen, 64 F.4th 978, 985 (8th Cir.
2023) (same but only post-Bruen).
In any event, doing so would not alter the outcome here.
Even if the plain text of the Second Amendment presump-
tively protects Carbajal-Flores because he falls within “the
people,” a long tradition exists of disarming individuals, like
illegal aliens, who have not sworn allegiance to the sovereign.
We turn to that issue now.
B
Whether § 922(g)(5)(A) is consistent with the Second
Amendment depends on whether the law adheres to “our
regulatory tradition.” Rahimi, 602 U.S. at 692. Courts must
proceed with caution when examining historical evidence, as
“not all history is created equal.” Bruen, 597 U.S. at 34.
The strongest evidence that a modern federal law accords
with the historical understanding of permissible firearm
regulations comes from around the time of the Second
Amendment’s adoption in 1791. Id. That said, the Amend-
ment “codified a pre-existing right” to bear arms, so the Eng-
lish common-law tradition informs our analysis. Heller, 554
U.S. at 592 (emphasis omitted); see also Rahimi, 602 U.S. at 693–
94 (examining common-law sources); Bruen, 597 U.S. at 35
(cautioning that “[a] long, unbroken line of common-law
precedent … is far more likely to be part of our law than a
short-lived, 14th-century English practice”). Post-ratification

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No. 24-1534 9
history may help illuminate the scope of the government’s au-
thority to regulate firearms as well. Heller, 554 U.S. at 605. The
most compelling evidence, though, will be that of a consistent
regulatory practice from ratification onward. Bruen, 597 U.S.
at 35–36; see also Vidal v. Elster, 602 U.S. 286, 323 (2024) (Barrett,
J., concurring in part) (“A course of deliberate practice might
liquidate ambiguous constitutional provisions.”); William
Baude, Constitutional Liquidation, 71 STAN. L. R EV. 1, 16–21
(2019) (same).
We therefore consider whether common-law, Founding-
era, and, to a lesser extent, post-ratification sources support
§ 922(g)(5)(A)’s ban on illegal aliens possessing firearms.
1
In the English tradition, one’s alien status carried with it a
smaller basket of rights. Blackstone, “who exerted considera-
ble influence on the Founders,” Reid v. Covert, 354 U.S. 1, 26
(1957) (plurality opinion), distinguished between “aliens and
natural-born subjects.” 1 W ILLIAM BLACKSTONE ,
C OMMENTARIES *354. Natural-born subjects, as the label im-
plies, were those “born within the dominions of the crown of
England” and thus had an allegiance to the sovereign as a con-
sequence of birth. Id. A natural-born subject’s allegiance
bound him to the King, and he received the sovereign’s pro-
tection in exchange. Id. at *354, *359. Importantly, this status
also guaranteed “a great variety of rights.” Id. at *359; see also
Jimenez-Shilon, 34 F.4th at 1047 (discussing the same).
An alien, on the other hand, was born outside the domin-
ions of the Crown. His status afforded him fewer rights than
those enjoyed by natural-born subjects. BLACKSTONE , supra, at
*359. And an alien’s rights could be conditioned on his

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10 No. 24-1534
“allegiance to the laws and government.” Patrick J. Charles,
Representation Without Documentation?: Unlawfully Present Al-
iens, Apportionment, the Doctrine of Allegiance, and the Law, 25
BYU J. P UB . L. 35, 78 (2011). Early international law confirms
that sovereigns wielded authority to limit benefits conferred
upon foreigners. 1 M. DE VATTEL , T HE LAW OF NATIONS § 213,
at 102 (1797); see also Jimenez-Shilon, 34 F.4th at 1047 (discuss-
ing the same).
Aliens’ rights were accordingly circumscribed in im-
portant ways at English common law. They could not, for ex-
ample, hold land. See, e.g., M’Ilvaine v. Coxe’s Lessee, 6 U.S. (2
Cranch) 280, 297 (1805) (explaining “[t]he rule of the common
law [was] that all persons may hold lands, except aliens” (em-
phasis omitted)). This prohibition on land ownership was
indeed rooted in the doctrine of allegiance. As Blackstone ex-
plained, “[i]f an alien could acquire a permanent property in
lands,” he would “owe an allegiance, equally permanent with
that property, to the king of England.” BLACKSTONE , supra, at
*360. But such an allegiance “would probably be inconsistent
with that[] which he owe[d] to his own” sovereign. Id.
Relevant here, land and gun ownership were historically
linked. “[T]he right to own guns in eighteenth-century Eng-
land was statutorily restricted to the landed gentry.” Jimenez-
Shilon, 34 F.4th at 1046 (citing P ATRICK J. C HARLES , ARMED IN
A MERICA 51, 58 (2018)). This provides early evidence, then,
that concerns over an alien’s lack of allegiance to the Crown,
which justified barring him from holding land, also war-
ranted barring him from keeping arms. See Don B. Kates, Jr.,
Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 MICH. L. R EV. 204, 217 n.54 (1983) (discussing

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No. 24-1534 11
the common-law tradition of disarming persons based on “al-
ienage or untrustworthiness”).
But an alien could overcome these impediments through
naturalization. That process offered aliens a path to securing
largely the same basket of rights afforded to natural-born sub-
jects. See BLACKSTONE , supra, at *362; VATTEL , supra, § 214, at
102. Naturalization required an alien to “take[] the oaths of
allegiance and supremacy in the presence of the parliament.”
BLACKSTONE , supra, at *362 (footnote omitted). Once he
pledged his allegiance to the sovereign, he would be placed
in almost “exactly the same state as if he had been born in the”
dominions of the Crown. Id.; see also Patrick J. Charles, The Ple-
nary Power Doctrine and the Constitutionality of Ideological Ex-
clusions: An Historical Perspective, 15 T EX. R EV. L. & P OL . 61, 73
(2010) (“The entire basis of England’s early immigration and
naturalization laws were intertwined with the doctrine of al-
legiance.”). So, like a natural-born subject, the naturalized al-
ien could take an interest in land. James E. Pfander & Theresa
R. Wardon, Reclaiming the Immigration Constitution of the Early
Republic: Prospectivity, Uniformity, and Transparency, 96 VA . L.
R EV. 359, 378–79 (2010). And with landownership came the
right to keep arms. See, e.g., Cross-Bows, A NEW LAW -
D ICTIONARY (Giles Jacob ed., 8th ed. 1762) (“None shall shoot
in, or keep any … Hand gun … but those who have Lands of”
a certain value.).
The disarmament of Catholics confirms that the English
tradition linked the right to bear arms with one’s allegiance to
the sovereign. The Second Amendment’s predecessor, housed
in the English Bill of Rights, guaranteed “the subjects which
are Protestants” the right to “have arms for their defence, suit-
able to their conditions, and as allowed by law.” 1 W. & M. c.

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12 No. 24-1534
2, § 7 (1689). Because the right was limited to Protestants, Par-
liament was free to bar English Catholics from possessing fire-
arms. And it did. Id. c. 15, § 3 (disarming “Papist[s] or reputed
Papist[s]”); see also Kanter v. Barr, 919 F.3d 437, 457 (7th Cir.
2019) (Barrett, J., dissenting) (discussing the same).
Catholics were perceived as resident enemy aliens because
they owed an allegiance to a foreign sovereign, the Pope. C.
Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32
HARV. J.L. & P UB . POL ’ Y 695, 722–23 (2009). That “they
acknowledge[d] a foreign power, superior to the sovereignty
of the kingdom,” meant Catholics were not entitled to bear
arms as “good subjects” were. Id. at 722 (internal quotation
omitted). But that restriction could be removed by pledging
allegiance to the Crown. After swearing the requisite oath, a
Catholic could be trusted to possess firearms. Id. at 723.
All told, the English tradition establishes a historical pat-
tern of disarming persons who lacked allegiance to the sover-
eign. Importantly, though, an individual could overcome that
limitation by swearing an oath to the sovereign.
2
The English tradition continued through the colonial and
Founding eras. On this side of the Atlantic, too, “it was well
understood that the right to bear arms ‘did not extend to all
New World residents.’” Jimenez-Shilon, 34 F.4th at 1047 (quot-
ing J OYCE LEE MALCOLM, T O KEEP AND B EAR A RMS : T HE
ORIGINS OF AN A NGLO-A MERICAN R IGHT 140 (1994)).
To begin, bans and other constraints on slaves and Native
Americans possessing firearms were, regrettably, common-
place. See, e.g., id.; Joseph G.S. Greenlee, The Historical Justifi-
cation for Prohibiting Dangerous Persons from Possessing Arms,

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No. 24-1534 13
20 WYO. L. R EV. 249, 250 (2020). The colonists did not consider
either group to be citizens that possessed rights commensu-
rate with English subjects. Perez, 6 F.4th at 462 (Menashi, J.,
concurring in the judgment); MALCOM, supra, at 140–41. So,
like aliens in England, slaves and Native Americans faced gun
restrictions “‘on the ground of alienage’ or lack of allegiance
to the” English sovereign. Jimenez-Shilon, 34 F.4th at 1047 (cit-
ing Kates, supra, at 217 n.54).
As an example, the New York Colony made it unlawful for
“Indian[s]” and “Slave[s] to have or use any Gun or Pistoll.”
An Act for Preventing Suppressing and Punishing the Con-
spiracy and Insurrection of Negroes and Other Slaves (Dec.
10, 1712), reprinted in 1 T HE C OLONIAL LAWS OF NEW YORK 761,
766–67 (1894). And the Colony of Connecticut banned the sale
of firearms and other “Instrument[s] of warre” “to the Inde-
ans.” An Act of October 25, 1644, reprinted in T HE P UBLIC
R ECORDS OF THE C OLONY OF C ONNECTICUT 111, 113–14 (J.
Hammond Trumbull ed., 1850). So did the Colony of Virginia.
An Act of March 2, 1642, reprinted in 1 A C OLLECTION OF A LL
THE LAWS OF VIRGINIA 238, 255 (William Waller Hening ed.,
1823); see also United States v. Duarte, 137 F.4th 743, 765 nn.3–4
(9th Cir. 2025) (en banc) (Collins, J., concurring in the judg-
ment) (collecting additional colonial statutes). These
discriminatory laws would unquestionably fail to overcome
constitutional scrutiny today. See Kanter, 919 F.3d at 458 n.7
(Barrett, J., dissenting). But they nonetheless illuminate a his-
torical throughline of disarming people based on their alle-
giances—or lack thereof.
Disarmament was not, however, strictly tied to race. The
colonies also prohibited white men who refused to swear an
oath to the English sovereign from possessing firearms.

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14 No. 24-1534
Robert H. Churchill, Gun Regulation, the Police Power, and the
Right to Keep Arms in Early America: The Legal Context of the Sec-
ond Amendment, 25 L. & HIST . R EV. 139, 158 (2007); A DAM
WINKLER , G UN FIGHT : T HE BATTLE OVER THE R IGHT TO BEAR
A RMS IN A MERICA 116 (2011).
Further in line with the English tradition, some colonies
restricted Catholics’ ability to keep arms. An Act for Disarm-
ing Papists, and Reputed Papists, Refusing to Take the Oaths
to the Government (Mar. 1756), reprinted in 7 A C OLLECTION
OF A LL THE LAWS OF VIRGINIA 35, 35–39 (William Waller Hen-
ing ed., 1820); see also WINKLER , supra, at 116 (citing a similar
practice in Maryland). Here again, the prohibitions were
premised on fears a person of that faith owed allegiance to the
Pope. But “those Catholics willing to swear undivided alle-
giance to the sovereign enjoyed a right to keep arms” like any
other English subject. Churchill, supra, at 157.
Concerns over one’s loyalty to the Crown and the polity
thus continued to drive firearm regulations. See Clayton E.
Cramer, Colonial Firearm Regulation, 16 J. ON FIREARMS & P UB .
P OL ’ Y 1, 21 (2004); see also Kanter, 919 F.3d at 457 (Barrett, J.,
dissenting) (explaining that the “confiscation of guns” helped
“deal with the potential threat coming from armed citizens
who remained loyal to another sovereign” (internal quotation
omitted)). Still, relief was often possible as long as a person
precluded from keeping arms was prepared to pledge an oath
to the King.
British control over the colonies eventually gave way to
revolutionary forces. Yet disarming people based on the doc-
trine of allegiance endured. Revolutionaries demanded that
anyone who did not support the rebellion surrender his
weapons. WINKLER , supra, at 116. Indeed, the Continental

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No. 24-1534 15
Congress recommended that each colonial legislature disarm
all those “within their respective colonies, who are notori-
ously disaffected to the cause of America.” 4 J OURNALS OF THE
C ONTINENTAL C ONGRESS 1774–1789, at 205 (Worthington
Chauncey Ford ed., 1906). And the colonies quickly acted on
that recommendation. See Churchill, supra, at 159 n.49 (collect-
ing resolutions). But consistent with earlier practices, those
willing to pledge allegiance to the Revolution could retain
their arms. WINKLER , supra, at 116.
In time, the Founders declared total independence from
the Crown. At that point, “the shift of allegiance was com-
plete,” and the newly minted states began adopting the em-
bedded practice of conditioning the right to bear arms on
one’s loyalty to the sovereign—now, each respective state.
Churchill, supra, at 159; see also Perez, 6 F.4th at 462 (Menashi,
J., concurring in the judgment) (“Those refusing to swear al-
legiance to their states … lacked the right to keep and bear
arms.”). The Commonwealth of Pennsylvania, for example,
passed the Test Act while the ink was still drying on the Dec-
laration of Independence. That law “disarmed” any man over
the age of eighteen who would not swear “allegiance to the
Common-Wealth of Pennsylvania.” An Act, Obliging the
Male White Inhabitants of This State to Give Assurance of Al-
legiance to the Same (June 13, 1777), reprinted in T HE A CTS OF
THE G ENERAL A SSEMBLY OF THE C OMMON-WEALTH OF
P ENNSYLVANIA 36, 36–37 (1779). North Carolina passed a sim-
ilar law. An Act to Amend an Act For Declaring What Crimes
and Practices Against the State Shall Be Treason, and What
Shall Be Misprision of Treason, and Providing Punishments
Adequate to Crimes of Both Classes, and for Preventing the
Dangers Which May Arise from Persons Disaffected to the
State (1777), reprinted in T HE A CTS OF A SSEMBLY OF THE STATE

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16 No. 24-1534
OF NORTH C AROLINA 41, 43 (1778). So too did New Jersey. An
Act for Constituting a Council of Safety (Sep. 20, 1777), re-
printed in A CTS OF THE G ENERAL A SSEMBLY OF THE STATE OF
NEW J ERSEY 84, 90 (1777). In fact, shortly after the Nation’s
birth, “[a]t least six states enacted such laws” disarming non-
associators. Duarte, 137 F.4th at 794 & n.10 (VanDyke, J.,
concurring in the judgment in part and dissenting in part)
(collecting additional laws). And they did so based on the
same underlying principle of allegiance. Churchill, supra, at
159–60.
The unfortunate practice of disarming slaves and Native
Americans survived the Revolutionary War, confirming the
Founders adhered to the tradition of barring groups deemed
outside the polity from keeping arms. Kanter, 919 F.3d at 458
(Barrett, J., dissenting). But again, disarmament was not solely
based on race. Aliens of all backgrounds, despite being free to
“exercise sundry other civil rights” at the time, could not ex-
ercise “the right to bear arms.” A KHIL AMAR , T HE BILL OF
R IGHTS : C REATION AND R ECONSTRUCTION 48 (1998). Some of
the first state constitutions, moreover, extended arms-bearing
protections only to “citizens.” See, e.g., P A . C ONST . of 1790, art.
IX, § 21; KY. C ONST . of 1792, art. XII, § 23; Eugene Volokh, State
Constitutional Rights to Keep and Bear Arms, 11 T EX. REV. L. &
P OL . 191, 208–09 (2006).
From the colonies to—most critically—the early Republic,
governments consistently conditioned the ability to possess
firearms on one’s loyalty to the sovereign. People outside the
polity were regularly disarmed unless and until they swore
an oath of allegiance. This provides strong historical evidence
that the Founders would have considered such regulations
compatible with the Second Amendment.

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No. 24-1534 17
3
Post-ratification understandings on the scope of the right
to bear arms confirm the same. See Heller, 554 U.S. at 605 (an-
alyzing 19th-century sources). Our discussion here is brief,
though, as courts must beware of “giving postenactment his-
tory more weight than it can rightly bear.” Bruen, 597 U.S. at
35.
Tellingly, early-19th-century American legal scholarship
described the relationship between one’s alien status and his
accompanying rights as consistent with the common-law
tradition in important ways. St. George Tucker explained that
aliens in the United States were either aliens by birth or by
election. 2 W ILLIAM BLACKSTONE & ST . G EORGE TUCKER ,
BLACKSTONE ’ S C OMMENTARIES : WITH NOTES OF R EFERENCE , TO
THE C ONSTITUTION AND LAWS , OF THE FEDERAL G OVERNMENT
OF THE UNITED STATES; AND OF THE C OMMONWEALTH OF
VIRGINIA app. 101 (1803). “Aliens by birth” included “all per-
sons born out of the dominions of the United States, since the
fourth day of July, 1776.” Id. “Aliens by election,” on the other
hand, included “naturalized subjects of the crown of Great-
Britain” that had not “since become actual citizens of the
United States.” Id. at app. 102.
Relevant here, aliens by birth were “generally subject to all
the incapacities to which aliens [were] subject by the rules of
the common law.” Id. As explained already, that included the
incapacity to keep and bear arms. But the Constitution vested
Congress with authority to create uniform naturalization
rules. U.S. C ONST . art. I, § 8, cl. 4. So, it was understood that
an alien could secure the rights of citizenship—including the
right to bear arms—after making “the requisite declarations
of his intention to become a citizen, and to renounce for ever

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18 No. 24-1534
all allegiance and fidelity to any foreign prince[] or state.”
BLACKSTONE & T UCKER , supra, at app. 100; see also Bruen, 597
U.S. at 70 (explaining the Second Amendment protects “all
Americans” (internal quotation omitted)).
Other notable thinkers at the time spoke of the right to
bear arms as belonging to citizens. Jimenez-Shilon, 34 F.4th at
1048 (citing 3 J OSEPH STORY, C OMMENTARIES ON THE
C ONSTITUTION OF THE U NITED STATES § 1890, at 746 (1833)).
Consistent with that view, additional states adopted constitu-
tions well into the 19th century that protected the right only
for those people. See, e.g., MISS . C ONST . of 1817, art. I, § 23;
T ENN. C ONST . of 1870, art. I, § 26; Volokh, supra, at 209–13; see
also Heller, 554 U.S. at 600–01 (accounting for post-ratification
state constitutions).
All this provides additional evidence that a long tradition
existed of linking the right to bear arms with one’s allegiance
to the sovereign. And the tradition extended to the period fol-
lowing the Second Amendment’s adoption. See Bruen, 597
U.S. at 35–36 (explaining post-ratification practices have more
persuasive value when they are consistent with longstanding
practices).
4
That brings us back to the criminal law here, 18 U.S.C.
§ 922(g)(5)(A), and the question of whether it conforms to our
Nation’s regulatory tradition. Congress, in passing the law,
decided to prohibit any “alien” who “is illegally or unlawfully
in the United States” from possessing a firearm. Id. We con-
clude that the provision sits comfortably alongside the line of
firearm regulations that came before it. To see how, consider
the two metrics courts use for assessing “whether the

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No. 24-1534 19
challenged regulation is consistent with the principles that
underpin our regulatory tradition.” Rahimi, 602 U.S. at 692.
We begin with “why” aliens have been precluded from
possessing firearms then and now. As explained, govern-
ments have consistently conditioned the right to bear arms on
one’s allegiance to the sovereign. Allegiance serves as a mark
of trustworthiness. See Kanter, 919 F.3d at 457–58 (Barrett, J.,
dissenting). And it shows one’s willingness to accede to the
terms of social order in exchange for the full benefits of citi-
zenship. Aliens, as a matter of their status, have not yet af-
firmed their allegiance to the sovereign. That has uniformly
served as the basis for disarming them. It serves as the basis
for § 922(g)(5)(A)’s prohibition, too.
Compare also “how” governments have traditionally reg-
ulated firearms to how Congress has chosen to do so today.
From the common law onward, aliens have historically been
disarmed unless and until they swore an oath of allegiance to
the sovereign. The way § 922(g)(5)(A) operates maps onto that
tradition. The law precludes only illegal aliens—those who
have necessarily forgone the naturalization process—from
possessing firearms. But an alien who obtains citizenship by
taking the oath of renunciation and allegiance, 8 U.S.C. § 1448,
is entitled to keep and bear arms like every other law-abiding
American. In other words, the same relief—pledging alle-
giance—exists today that has existed throughout history.
Section 922(g)(5)(A) is thus sufficiently analogous to many
earlier firearm regulations. Because the law “comport[s] with
the principles underlying the Second Amendment,” we hold
that it overcomes Carbajal-Flores’s facial challenge. Rahimi,
602 U.S. at 692–93 (explaining such a challenge “requires a

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20 No. 24-1534
defendant to establish that no set of circumstances exists un-
der which the Act would be valid” (internal quotation omit-
ted)).
III
Carbajal-Flores argues that even if § 922(g)(5)(A) is facially
constitutional, as we have now concluded, the law still oper-
ates in an unconstitutional manner as applied to him. In his
view, our Nation’s regulatory tradition supports disarming
only dangerous and untrustworthy aliens. And because he is
neither, he should be able to possess a pistol notwithstanding
the general prohibition on aliens keeping arms. Recall that the
district court agreed with Carbajal-Flores and dismissed the
indictment.
After Bruen, our circuit has not yet decided whether a de-
fendant can lodge an as-applied challenge to any subsection
of § 922(g). In United States v. Gay, we “assume[d] for the sake
of argument that there [was] some room for as-applied chal-
lenges” to § 922(g)(1)’s ban on felons possessing firearms. 98
F.4th 843, 846 (7th Cir. 2024). And other courts have enter-
tained such challenges. See, e.g., Range, 124 F.4th at 224.
Several circuits have upheld § 922(g)(1) on the ground that
a long tradition exists of “disarm[ing] groups … deemed to be
dangerous.” See, e.g., Williams, 113 F.4th at 657. But because
not all felons are inherently dangerous, some courts have left
open the possibility of allowing non-violent felons to chal-
lenge the constitutionality of that provision as applied to
them. Range, 124 F.4th at 232 (holding § 922(g)(1) unconstitu-
tional as applied to food-stamp fraudster); see also Duarte, 137
F.4th at 748 (collecting cases); but see id. at 747–48 (surveying
circuits that have rejected as-applied challenges). In other

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No. 24-1534 21
words, the class of persons disarmed under § 922(g)(1) is po-
tentially overinclusive: The historical justification for disarm-
ing some felons may not support disarming all felons.
Section 922(g)(5)(A) does not present the same potential
overinclusion problem. As discussed, our Nation’s regulatory
tradition supports disarming aliens who have not sworn an
oath of allegiance to the sovereign. The challenged statute ex-
tends no further than disarming people “illegally or unlaw-
fully in the United States.” 18 U.S.C. § 922(g)(5)(A). That is,
people who have not naturalized and taken the oath of renun-
ciation and allegiance. See 8 U.S.C. § 1448.
We express no views on whether criminal defendants may
lodge as-applied challenges to other provisions contained in
§ 922(g)’s various subsections. But district courts need not
conduct individualized assessments of illegal aliens for pur-
poses of § 922(g)(5)(A). The district court here accordingly
erred in holding the statute unconstitutional as applied to
Carbajal-Flores.†
† Carbajal-Flores alternatively requests that we summarily affirm dis-
missal of the indictment based on the government’s alleged failures to
comply with Circuit Rule 30, which sets out the required contents of the
appendix to an appellant’s brief. See United States v. Matthews, 140 F.4th
893, 899 (7th Cir. 2025).
He first faults the government for failing to include two of the district
court’s orders denying his earlier motions to dismiss the indictment. See
id. (“Circuit Rule 30(b)(1) requires appellants to include in the appendices
to their briefs copies of all opinions, orders, or oral rulings in the case that
address the issues sought to be raised.” (internal quotation omitted)). But
the government included in its appendix the one order on which it seeks
reversal. So, although it may have been helpful for the government to in-
clude the other orders, it can hardly be said to have “blatant[ly] and un-
justifi[ably]” disregarded Circuit Rule 30. Jaworski v. Master Hand

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22 No. 24-1534
* * *
The Second Amendment secures for the people a funda-
mental right. The government thus bears the substantial bur-
den of proving that a law limiting the right fits within our
Nation’s regulatory tradition. That burden has been carried
here. The district court’s decision to dismiss the indictment
against Carbajal-Flores is R EVERSED and the case is R EMANDED
for proceedings consistent with this opinion.
Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018). Summary affirmance is
therefore inappropriate.
Carbajal-Flores also faults the government for including in its appen-
dix historical sources that it did not submit to the district court. But the
government did provide that court with many of the same sources it
included in its appendix. To the extent it offered additional materials on
appeal, their inclusion did not alter the outcome of this case. Summary
affirmance therefore remains inappropriate. Carbajal-Flores’s additional
arguments pertaining to Circuit Rule 30 do not merit discussion.

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