United States v. Perez

1
24-162-cr
United States v. Perez
United States Court of Appeals
For the Second Circuit
August Term 2024
Argued: December 12, 2024
Decided: August 19, 2025
No. 24-162-cr
UNITED S TATES OF AMERICA
Appellee,
v.
KEITH V EREEN,
Defendant,
S TEVEN PEREZ , a/k/a L UCHA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of New York
No. 1:22-cr-644-2, Jed S. Rakoff, Judge.

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Before: Robinson, Pérez, and Nathan, Circuit Judges.
Defendant-Appellant Steven Perez, also known as Lucha El,
appeals from a judgment of the United States District Court for the
Southern District of New York (Rakoff, J.) convicting him of one count
of interstate transport of firearms, in violation of 18 U.S.C. § 922(a)(3),
and one count of conspiracy to transport or receive firearms from
outside his state of residency, in violation of 18 U.S.C. § 371. On
appeal from his conviction, Lucha El challenges § 922(a)(3) as
violating the Second Amendment. We conclude that § 922(a)(3) is a
lawful regulation placing conditions and qualifications on the
commercial sale of firearms that does not meaningfully constrain
Lucha El’s protected right to “keep” and “bear” arms. Furthermore,
even if it more substantially constrained that right, § 922(a)(3) is
consistent with this nation’s historical tradition of firearm
regulations. Accordingly, Lucha El’s convictions pursuant to
§ 922(a)(3) did not violate the Second Amendment.
A FFIRMED.
KENDRA L. H UTCHINSON,
Federal Defenders of New
York, Inc., New York, NY, for
Defendant-Appellant.

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L UCAS ISSACHAROFF (Ashley
C. Nicholas, Madison Reddick
Smyser, Nathan Rehn, on the
brief), Assistant United States
Attorneys, for Damian
Williams, United States
Attorney for the Southern
District of New York, New
York, NY, for Appellee.
NATHAN, Circuit Judge:
Federal law prohibits any individual from “transport[ing] into
or receiv[ing] in the State where he resides . . . any firearm purchased
or otherwise obtained by such person outside that State” unless he
has a federal firearms license or fits within a limited exception. 18
U.S.C. § 922(a)(3). Defendant-Appellant Steven Perez, also known as
Lucha El,1 was found guilty of one count of interstate transport of
firearms, in violation of 18 U.S.C. § 922(a)(3), and one count of
conspiracy to transport or receive firearms from outside his state of
residency, in violation of 18 U.S.C. § 371. Lucha El appeals his
convictions, arguing that the judgment violates the Second
Amendment.
We disagree. This Court previously upheld § 922(a)(3) in the
face of a Second Amendment challenge. United States v. Decastro, 682
F.3d 160, 163–69 (2d Cir. 2012). We reaffirm that conclusion and hold
1 This opinion hereafter refers to Perez by his preferred name of Lucha El.

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that § 922(a)(3) does not violate the Second Amendment as applied to
Lucha El. Applying the text-and-history framework set out in New
York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), we
conclude that § 922(a)(3) is valid for two independent reasons. First,
§ 922(a)(3) is a commercial sale regulation that is “presumptively
lawful” as long as it does not meaningfully constrain Lucha El’s
Second Amendment right to “keep” and “bear” arms. District of
Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008); Gazzola v. Hochul,
88 F.4th 186, 195–98 (2d Cir. 2023), cert. denied, 144 S. Ct. 2659 (2024).
As we already held in United States v. Decastro, § 922(a)(3) “only
minimally affects the ability to acquire a firearm” and places no
restrictions on ownership and use. 682 F.3d at 164. The constraints
that § 922(a)(3) does impose, including barring the use of anonymous
out-of-state straw purchasers to conceal firearms transactions and
circumvent lawful in-state regulations, do not implicate the right to
“keep” and “bear” arms as it has been construed since District of
Columbia v. Heller.
Second, even if § 922(a)(3) could be understood to
meaningfully constrain Lucha El’s access to firearms, the government
has identified numerous colonial and Founding-era laws that
regulated the movement of arms across borders and disarmed
individuals deemed dangerous by the government, demonstrating
that § 922(a)(3) is consistent with this nation’s historical tradition of
firearm regulation. Cf. United States v. Rahimi, 602 U.S. 680, 698 (2024).
Accordingly, we AFFIRM the judgment of the district court.

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BACKGROUND
Lucha El is a resident of New York State who has twice been
arrested for unlawful possession of firearms. He was first arrested in
the Bronx, New York, after law enforcement received reports of an
armed male in the area matching his description. Officers recovered
from Lucha El’s person a handgun that had been purchased in South
Carolina by a straw purchaser, Keith Vereen. Two weeks later, he
was arrested on an interstate in Massachusetts, after state troopers
approached two vehicles carrying him and other individuals who
self-identified as members of a militia group. During a search of the
vehicle, law enforcement recovered multiple firearms, which had
been purchased by Vereen in South Carolina, alongside multiple
magazines and over a thousand rounds of ammunition. Lucha El was
subsequently charged in the Southern District of New York with
interstate transport of firearms, in violation of 18 U.S.C. § 922(a)(3).
The relevant text of § 922(a)(3) provides:
It shall be unlawful . . . for any person, other than a
licensed importer, licensed manufacturer, licensed
dealer, or licensed collector to transport into or receive in
the State where he resides . . . any firearm purchased or
otherwise obtained by such person outside that State,
except that this paragraph (A) shall not preclude any
person who lawfully acquires a firearm by bequest or
intestate succession in a State other than his State of
residence from transporting the firearm into or receiving
it in that State, if it is lawful for such person to purchase
or possess such firearm in that State, (B) shall not apply
to the transportation or receipt of a firearm obtained in
conformity with subsection (b)(3) of this section, and (C)

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shall not apply to the transportation of any firearm
acquired in any State prior to the effective date of this
chapter[.]
18 U.S.C. § 922(a)(3).
In other words, absent limited exceptions inapplicable to Lucha
El, an individual without a requisite federal license cannot transport
into or receive in his state of residence any firearm purchased or
otherwise obtained out of state. Section 922(a)(3) does not regulate
any other aspect of firearm acquisition. The statute did not prohibit
Lucha El from buying a firearm in New York pursuant to New York
law. It also did not prohibit him from becoming a licensed importer,
manufacturer, dealer, or collector, all of whom may transport
firearms purchased out of state into New York. Indeed, under
§ 922(a)(3), Lucha El could have purchased a firearm out of state and
received it in New York if he had first transferred it to an in-state
federal licensee. See Bureau of Alcohol, Tobacco, Firearms and
Explosives, Firearms Q&As, To whom may an unlicensed person transfer
firearms under the GCA?, available at https://perma.cc/YV4H-X3FQ.
Following indictment, Lucha El moved to dismiss the charge
against him, arguing that 18 U.S.C. § 922(a)(3) violates the Second
Amendment. The district court denied the motion. United States v.
Libertad, 681 F. Supp. 3d 102, 115 (S.D.N.Y. 2023). The government
then filed a superseding indictment adding a charge of conspiracy to
receive firearms from outside his state of residency, in violation of 18
U.S.C. § 371.
At trial, the government put forward evidence that Lucha El
was a resident of New York who lacked the requisite state permits to
purchase guns legally in New York. To circumvent this restriction,

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he purchased guns through a “straw purchaser,” Keith Vereen, who
was authorized to purchase firearms on his own behalf in South
Carolina but who in fact purchased these arms for Lucha El and
others. On at least one occasion, Lucha El paid Vereen via a wire
transfer. Vereen then transported the firearms from South Carolina
to New York City, where Lucha El received them.
A jury found Lucha El guilty of violating § 922(a)(3) and
conspiring to violate § 922(a)(3). The district court sentenced him to
a term of 16 months’ imprisonment, to be followed by three years’
supervised release, and ordered the forfeiture of the firearms
involved in the offense. Lucha El timely appealed.
DISCUSSION
On appeal, Lucha El only raises one issue: whether his
convictions are unconstitutional because 18 U.S.C. § 922(a)(3) violates
the Second Amendment. “We review challenges to the
constitutionality of federal statutes de novo.” United States v. Griffith,
284 F.3d 338, 345 (2d Cir. 2002).
We hold that § 922(a)(3) is a lawful regulation on the
commercial sale of firearms that does not meaningfully constrain
New Yorkers’ ability to keep or bear arms. Even absent a historical
analogue, then, it is constitutional under the Supreme Court’s
decisions in Bruen and Heller, this Court’s decision in Decastro, and
this Court’s post-Bruen decision in Gazzola. In any event, § 922(a)(3)
is also consistent with the nation’s historical tradition of firearm
regulation, which has, since the Founding, encompassed limitations
on the movement of firearms across borders. We thus conclude that

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§ 922(a)(3) survives under both steps of the analytic framework set
out in Bruen. Because Lucha El fails on his as-applied challenge to
§ 922(a)(3), he also fails on his facial challenge. See Rahimi, 602 U.S. at
693. We therefore affirm the judgment of the district court.
I. Heller, Bruen and Their Progeny
The Second Amendment provides: “A well 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. When evaluating whether a firearms regulation violates the
Second Amendment, we apply a “test rooted in the Second
Amendment's text, as informed by history.” Bruen, 597 U.S. at 19.
This analysis proceeds in two steps: First, we ask whether the Second
Amendment’s text applies to the challenged regulation; second, if it
does, we ask whether the regulation is consistent with the nation’s
historical tradition of firearm regulation. See Antonyuk v. James, 120
F.4th 941, 964 (2d Cir. 2024), cert. denied, 145 S. Ct. 1900 (2025)
(Antonyuk II).
The text of the Second Amendment protects the right to “keep
and bear Arms.” In Heller, the Supreme Court explained that “the
most natural reading of ‘keep Arms’ in the Second Amendment is to
‘have weapons,’” and that “bear arms” means to “wear, bear, or
carry . . . for the purpose of being armed and ready for offensive or
defensive action[.]” 554 U.S. at 582, 584 (alteration accepted) (quoting
Muscarello v. United States, 524 U.S. 125, 143 (1998)). Together, these
elements “guarantee the individual right to possess and carry
weapons in case of confrontation.” Id. at 592. Nonetheless, “laws
imposing conditions and qualifications on the commercial sale of

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arms” are “presumptively lawful,” because in most cases they do not
infringe the right to “keep” and “bear” arms. Id. at 626-27 & n.26; see
also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality
opinion); Bruen, 597 U.S. at 80–81 (Kavanaugh, J., concurring); Rahimi,
602 U.S. at 735 (Kavanaugh, J., concurring).
Of course, to “keep” and “bear” arms, one must also be able to
acquire them and maintain them in operable condition. See Gazzola,
88 F.4th at 196. “[T]he right to keep arms, necessarily involves the
right to purchase them, to keep them in a state of efficiency for use,
and to purchase and provide ammunition suitable for such arms, and
to keep them in repair.” Id. (quoting Andrews v. State, 50 Tenn. 165,
178 (1871)). But, as other Circuits have recognized, such “ancillary
rights” are only protected to the extent that they are “necessary to the
realization” of the textually specified right to keep and bear arms. Id.
at 197 (quoting Teixeira v. County of Alameda, 873 F.3d 670, 677 (9th Cir.
2017) (en banc)); see also Oakland Tactical Supply, LLC v. Howell
Township, 103 F.4th 1186, 1196 (6th Cir. 2024), cert. denied, 145 S. Ct.
603 (2024) (“[I]n the context of implied corollary rights, . . . our
analysis begins one step removed from the plain text. If [a]
regulation . . . does not restrict conduct necessary to effectuate that
right, the proposed conduct . . . is not protected by the plain text of
the Second Amendment and the regulation need not satisfy Bruen’s
second step, even though it regulates conduct connected to
firearms.”); Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 121 (10th
Cir. 2024) (“[I]t seems inconsistent to conclude that step one is a
textual analysis and to then take an expansive view of the text to infer
concomitant rights that are not present in the language of the Second

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Amendment.”). Put differently, regulations on the means of
acquiring, transporting, and storing firearms only implicate the text
of the Second Amendment if they meaningfully constrain the right to
possess and carry arms. “Properly interpreted, the Second
Amendment allows a ‘variety’ of gun regulations” that fall short of
infringing the right to keep and bear arms. Bruen, 597 U.S. at 80
(Kavanaugh, J., concurring).
Accordingly, post-Bruen, we have upheld a range of
regulations on firearms retailers based on the determination that they
do not “meaningfully constrain[]” New Yorkers’ “relatively easy
access to sellers of firearms.” Gazzola, 88 F.4th at 197–98 (upholding
requirements that sellers keep firearms in locked vaults or safes,
install security alarms, provide additional employee training, allow
police to access store premises, and more). In doing so, we held that
“‘gun buyers have no right to have a gun store in a particular
location,’ nor a right to ‘travel’ no more than short ‘distances’ to the
most convenient gun store that provides what they deem a
satisfactory ‘retail experience.’” Id. (quoting Teixeira, 873 F.3d at 679–
80 & n.13).
To be clear, the question of whether a regulation implicates the
text of the Second Amendment is not the kind of “means-end
scrutiny” that the Supreme Court rejected in Bruen. We do not “assess
the costs and benefits of firearms restrictions” nor ask whether “on a
case-by-case basis . . . the right is really worth insisting upon.” Bruen,
597 U.S. at 23 (cleaned up). Rather, in this step of the analysis we ask
merely the threshold question whether the constraint on an ancillary
right is sufficient to constitute an infringement of the textually

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enumerated right to “keep” and “bear” arms.
If we determine that a regulation does pertain to the right to
“keep” or “bear” arms, “the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of
firearm regulation.” Bruen, 597 U.S. at 17. “[I]f a challenged
regulation fits within that tradition, it is lawful under the Second
Amendment.” Rahimi, 602 U.S. at 691 (upholding a federal statute
prohibiting certain individuals subject to active restraining orders
prohibiting them from possessing firearms). To determine whether a
modern regulation is “relevantly similar” to a historical analogue, we
must examine “[w]hy and how the regulation burdens the right.” Id.
at 692. However, the Supreme Court has cautioned against applying
“a law trapped in amber” and emphasized that “the Second
Amendment permits more than just those regulations identical to
ones that could be found in 1791.” Id. at 691-92. Thus, while a “law
must comport with the principles underlying the Second
Amendment, . . . it need not be a ‘dead ringer’ or a ‘historical twin.’”
Id. at 692 (quoting Bruen, 597 U.S. at 30). And, because the Second
Amendment “can, and must, apply to circumstances beyond those
the Founders specifically anticipated,” “a more nuanced approach” is
warranted in “cases implicating unprecedented societal concerns or
dramatic technological changes.” Bruen, 597 U.S. at 27–28. This
methodology reflects the commonsense truth that the Second
Amendment “is not unlimited,” and does not confer “a right to keep
and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, 554 U.S. at 626.

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II. Analysis
Applying this body of law, we conclude that Lucha El’s
challenge to § 922(a)(3) fails for two independent reasons. Under step
one of Bruen’s analytic framework, § 922(a)(3) does not meaningfully
constrain an individual’s ability to keep and bear firearms, and it is
therefore a lawful regulation on commercial sales. Alternatively,
under step two of the Bruen analysis, § 922(a)(3) is consistent with the
nation’s longstanding tradition of regulating the transportation of
firearms across state lines.
A. Text
As a threshold matter, we must determine whether § 922(a)(3)
implicates the Second Amendment’s textually specified right to
“keep” (i.e., possess) and “bear” (i.e., carry) arms. Heller, 554 U.S. at
582, 584. Because § 922(a)(3) regulates only the mode of acquiring
firearms, it implicates the text of the Second Amendment only if it
makes acquiring firearms sufficiently more difficult so as to
meaningfully constrain individuals from keeping or bearing them.
Gazzola, 88 F.4th at 195–98.
This Court has already answered that question in United States
v. Decastro, which held that § 922(a)(3) “only minimally affects the
ability to acquire a firearm.” 682 F.3d at 164. Because that holding is
both accurate and not implicated by the Bruen line of cases, the Court
sees no reason to reconsider it.
Decastro concerned a defendant who had transported to New
York a gun purchased out of state and who was subsequently
convicted under § 922(a)(3). Id. at 161–63. This Court rejected
Decastro’s constitutional challenge to § 922(a)(3). Id. at 168–69. The

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crux of the Court’s holding was that § 922(a)(3) “does not impose a
substantial burden on the exercise of . . . Second Amendment rights.”
Id. at 168. Specifically, the law “does nothing to keep someone from
purchasing a firearm in her home state, which is presumptively the
most convenient place to buy anything.” Id. It also “does not bar
purchases from an out-of-state supplier if the gun is first transferred
to a licensed gun dealer in the purchaser’s home state.” Id.
Individuals therefore retain “ample alternative means of acquiring
firearms[.]” Id. Indeed, only individuals actively seeking to
circumvent their home state’s lawful gun regulations—themselves
subject to Second Amendment scrutiny—are inconvenienced in any
way by § 922(a)(3). See id.
Lucha El objects that Decastro predated Bruen, in which the
Supreme Court rejected the second part of a then-common framework
that applied either strict scrutiny or intermediate scrutiny based on
“how close the law comes to the core of the Second Amendment right
and the severity of the law’s burden on that right.” Bruen, 597 U.S. at
18 (quotation marks omitted). Pursuant to Bruen, courts may consider
whether “the challenged law regulates activity falling outside the
scope of the right as originally understood” but may not conduct
means-end scrutiny. Id. at 18–19 (quotation marks omitted). Lucha
El argues that Decastro engaged in that type of means-end scrutiny,
and therefore no longer binds this Court. See Dale v. Barr, 967 F.3d
133, 142–43 (2d Cir. 2020) (“Where an intervening Supreme Court
decision casts doubt on the prior [Second Circuit] ruling, we are not
bound to follow that prior ruling.” (cleaned up)). We disagree.
First, the relevant portion of Decastro is its holding concerning

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the effect, or lack thereof, that § 922(a)(3) has on firearm acquisition
and ownership. Decastro framed the primary question “in terms of
the burden on the ability of [individuals] to possess firearms for self-
defense.” 682 F.3d at 165. We ultimately concluded that, while
§ 922(a)(3) “prohibits the transportation into one’s state of residence
of firearms acquired outside the state,” it leaves “ample alternative
means of acquiring firearms for self-defense purposes.” Id. at 168.
That determination is consistent with Heller’s observation that
commercial sale regulations are presumptively lawful and is
unaffected by Bruen and its progeny.
Applying similar reasoning in the post-Bruen era, this Court in
Gazzola reiterated that commercial sale regulations are
constitutionally valid so long as they do not “have the effect of
eliminating the ability of law-abiding, responsible citizens to acquire
firearms.” 88 F.4th at 196. In Gazzola, we upheld New York’s
commercial regulations on sales of firearms and ammunitions, which
required federally licensed firearms dealers and businesses to, among
other things, secure firearms in a locked safe outside of business
hours; install security alarm systems; provide police-developed
training to employees; provide state police with full access to the
premises for onsite inspections; conduct background checks for
ammunition sales; and prohibit minors from entering stores
unaccompanied. Id. at 192. Finding “no evidence that New Yorkers
currently lack, or will lack under the challenged statutes, relatively
easy access to sellers of firearms,” we determined that the challenged
regulations were lawful without needing to engage in Bruen’s step-
two historical analysis. Id. at 197–98.

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Furthermore, while Decastro used outdated terminology
regarding “level[s] of scrutiny,” 682 F.3d at 165, it did not actually
engage in means-ends analysis. What Bruen rejected was asking
“whether a statute burdens a protected interest in a way or to an
extent that is out of proportion to the statute’s salutary effects upon
other important governmental interests[.]” 597 U.S. at 23 (cleaned
up). In other words, suspect “means” cannot be justified by
sufficiently weighty “ends.” In Decastro, we faced only the antecedent
question of whether § 922(a)(3) was a sufficiently material constraint
on access to firearms to implicate the Second Amendment at all and
had no occasion to consider the weight of the government interests
§ 922(a)(3) serves. And, furthermore, we made clear that this
threshold question was not a close one, since the impact of § 922(a)(3)
on gun ownership was “minimal[].” Decastro, 682 F.3d at 164, 168.
As a result, we conclude that Decastro remains good law.
However, even if Decastro were not binding, we would again hold
that § 922(a)(3) does not meaningfully constrain the ability to keep
and bear arms, and that it is constitutional under step one of the Bruen
inquiry. Section 922(a)(3) merely obligates individuals to generally
comply with their state’s firearm regulations by requiring in-state
firearm acquisition, or out-of-state acquisition through a federally
licensed in-state dealer. It thus “impos[es] conditions and
qualifications on the commercial sale of arms,” but is not “so
restrictive that it threatens a citizen’s right to acquire firearms.”
Gazzola, 88 F.4th at 195–96 (quoting Heller, 554 U.S. at 626–27). Section
922(a)(3) also includes a plethora of safety valves, including
exceptions for inheritance; federally licensed importers, dealers and

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collectors; sporting rentals; and in-person transactions that comply
with the laws of the recipient’s state. And, as explained above,
§ 922(a)(3) imposes no restrictions whatsoever on the most common
and convenient mode of firearms acquisition—in-state purchases.
Accordingly, there is no “evidence . . . that New York citizens will be
meaningfully constrained—or, for that matter, constrained at all—in
acquiring firearms and ammunition.” Gazzola, 88 F.4th at 197.
The facts here further illustrate why § 922(a)(3) does not
meaningfully constrain the right to keep and bear arms. Lucha El
does not argue that he sought to buy rare or unique firearms, or that
he would have been unable to lawfully acquire in New York the
handguns with which he and his coconspirators were caught. He also
does not allege that he applied for a federal license to transport
firearms across state lines, or that he would have been unable to
secure such a license. Furthermore, the guns at issue here actually
came from federally licensed dealers, just not ones in New York State.
The only apparent restriction that § 922(a)(3) imposed on Lucha El’s
conduct, then, was that he buy guns under his own name. Ultimately,
the Second Amendment protects the right to keep and bear arms, not
the right to acquire arms in secret from an anonymous straw
purchaser. Because Lucha El identifies no meaningful constraint that
§ 922(a)(3) imposes on his ability to acquire firearms, nor any practical
effect at all, the Second Amendment’s plain text does not cover the
conduct at issue here.
Accordingly, we reaffirm Decastro and hold that § 922(a)(3) is a
lawful commercial sale regulation that does not materially constrain
Lucha El’s Second Amendment right to “keep” and “bear” arms.

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B. History
In the alternative, we hold that § 922(a)(3) does not violate the
Second Amendment because the government has met its burden of
showing that § 922(a)(3) is consistent with this nation’s historical
tradition of firearm regulation.
As a threshold matter, we must determine the degree of
similarity required. Bruen explained that “when a challenged
regulation addresses a general societal problem that has persisted
since the 18th century, the lack of a distinctly similar historical
regulation addressing that problem is relevant evidence.” 597 U.S. at
26 (emphasis added). Other times, such as when a regulation
“implicat[es] unprecedented societal concerns or dramatic
technological changes,” more nuanced analogical reasoning applies,
and the historical counterpart need only be “relevantly similar.” Id.
at 27–29. As Lucha El concedes, Rahimi clarified that the “relevantly
similar” analysis is the appropriate test here. Rahimi concerned 18
U.S.C. § 922(g)(8), which criminalizes firearm possession by an
individual subject to a domestic violence restraining order if the order
found that the defendant posed a safety threat to their intimate
partner or their partner’s children, or if it explicitly prohibited the use
or threat of force against those individuals. Without first holding that
the statute implicated unprecedented societal concerns or dramatic
technological changes, Rahimi applied the “relevantly similar”
framework. 602 U.S. at 692. The Court explained that “the
appropriate analysis involves considering whether the challenged
regulation is consistent with the principles that underpin our
regulatory tradition.” Id. (emphasis added). “Why and how the

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regulation burdens the right are central to [the] inquiry.” Id.
Applying the “relevantly similar” analysis to a federal law, we
look to “the prevailing understanding of the right to bear arms
in . . . 1791” and “time periods in close proximity to 1791.” Antonyuk
II, 120 F.4th at 972–73; see also Bruen, 597 U.S. at 34 (noting that
“[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them” (emphasis
omitted) (quoting Heller, 554 U.S. at 634–35)).2
The government identifies two historical traditions consistent
with § 922(a)(3)—first, colonial and founding-era state laws
regulating the movement of firearms and gunpowder between
colonies and across borders; and second, contemporaneous statutes
disarming those deemed dangerous. These traditions, independently
and together, satisfy the “how” and the “why” inquiries under Bruen.
Concerning the “how,” the burdens imposed by § 922(a)(3) are
consistent with those imposed by historical laws restricting the trade
of firearms and ammunition across jurisdictional lines. As the Ninth
Circuit recognized, “colonial governments substantially controlled
2 In Antonyuk II, which concerned a state law, we looked to both “evidence of the pre-Civil
War and Reconstruction Eras.” 120 F.4th at 973. We did so in part because “the right to
keep and bear arms is applicable to the States through the Fourteenth Amendment, which
was adopted in 1868.” Id. at 972 (citation omitted). But, while we acknowledged that
“individual rights enumerated in the Bill of Rights . . . have the same scope as against the
Federal Government,” we nonetheless concluded that “1791 and 1868 are both fertile
ground, and the adjacent and intervening periods are likewise places in the historical
record to seek evidence of our national tradition of firearms regulation.” Id. at 974
(quotation marks omitted). Because the historical record from the Founding is more than
sufficient to justify § 922(a)(3), we need not look beyond it. But we express no opinion here
as to whether Reconstruction-era evidence can ever be relevant when determining the
constitutionality of federal firearms laws.

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the firearms trade,” including by “controll[ing] the conditions of
trade[.]” Teixeira, 873 F.3d at 685. The government identifies an
extensive list of such regulations in force at the Founding. For
example, Connecticut banned the sale of firearms by its residents
outside the colony. 1 J. Hammond Trumbull, The Public Records of
the Colony of Connecticut, Prior to the Union with New Haven
Colony, May, 1665, at 138–39 (Hartford, Brown & Parsons 1850)
(“[N]o ammunition should be traded with any that live out of the
Jurisdictions[.]” (cleaned up)). Similarly, Virginia sharply restricted
the possession of firearms and ammunition more than “three miles
[from] English plantations,” in an attempt to keep arms out of the
hands of Native Americans. Act II, An Act Prohibiting Trade with
Indians (1675), in 2 The Statutes at Large: Being a Collection of All the
Laws of Virginia, from the First Session of the Legislature, in the Year
1619, at 336–37 (William Waller Hening ed., New York, R. & W. & G.
Bartow 1823) [hereinafter Virginia Law]. The Virginia Law
emphasized that the prohibition applied universally, even though it
affected individuals conducting lawful trade and “not actually
trading [or] selling . . . to or with the Indians.” Id. (cleaned up).
Colonies also tightly regulated the transportation of both
gunpowder and ammunition. One Massachusetts law, for example,
required “all . . . that shall import . . . either powder, lead, bullets,
shot, or any ammunition whatsoever, shall give particular notice of
the quantity . . . to the publick Notary . . . who [shall] take particular
notice of the same, with the mark & number, and faithfully [record]
the names of the persons to whom they are sold.” Powder, § 1 (1651),
in The Colonial Laws of Massachusetts: Reprinted from the Edition of

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1660 with the Supplements to 1672 Containing also, the Body of
Liberties of 1641, at 186 (William H. Whitmore ed., Boston, Rockwell
& Churchill 1889) (cleaned up) [hereinafter Massachusetts Law]. A
Providence law went further, requiring a license to sell gunpowder
within the city. See An Act Regulating the Storage, Safe Keeping and
Transportation of Gunpowder in the Town of Providence, § 2 (1821),
in The Charter and Ordinances of the City of Providence, with the
Acts of the General Assembly Relating to the City, 48 (1821 law)
(Providence, Knowles & Vose 1845) [hereinafter Providence Law].
Several laws also required licenses for the exportation of powder. See,
e.g., Massachusetts Law § 2 (“[N]o person . . . shall transport any
Gunpowder out of this Jurisdiction, without license first obtained
from some two of the Magistrates.” (cleaned up)); An Act for
Encouraging the Manufactures of Salt Petre and Gun Powder (1775),
in 15 The Public Records of the Colony of Connecticut, from May,
1775 to June, 1776, Inclusive, with the Journal of the Council of Safety
from June 7, 1775, to October 2, 1776, and an Appendix Containing
Some Council Proceedings, 1663–1710, at 190–92 (Charles J. Hoadly
ed., Hartford, Case, Lockwood, & Brainard Co. 1890) (providing that
no “gun-powder made and manufactured . . . shall be exported out of
the [Colony] without . . . license” (cleaned up)). And a federal law
enacted by the Third Congress entirely prohibited, for a period of
time, “export from the United States [of] any cannon, muskets, pistols,
bayonets, swords, cutlasses, musket balls, lead, bombs, grenades,
gunpowder, sulphur or saltpetre.” Act of May 22, 1794, ch. 33, § 1, 1
Stat. 369, 369.3
3 Lucha El argues that principles of party presentation prevent a court from considering

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Taken together, these laws demonstrate a Founding-era
historical tradition of restricting arms transactions across borders.
The burden imposed by such laws is precisely the type of burden
imposed by § 922(a)(3).
Lucha El contends that the government has not shown that the
burden imposed by § 922(a)(3) is consistent with a historical tradition
because many of the government’s proffered analogues regulate sale
rather than purchase. As an initial matter, this argument misreads
the § 922(a)(3), which regulates only interstate transportation and
receipt of firearms, not purchases of particular firearms or by
particular individuals. The statute’s explicit coverage of firearms
“dealer[s]” and “importer[s]” further illustrates its focus on
conditions of trade as opposed to individual gun ownership. It is
therefore best understood as a limitation on the movement of firearms
around the country, in the tradition of the colonial era laws cited
above. Second, at least some of the Government’s historical
analogues did involve import, as opposed to export, regulations. See,
e.g., Providence Law; Massachusetts Law; An Act Providing for the
Inspection of Gun-Powder, ch. 337, §§ 1–12, 1794 Pa. Laws 764, 764–
769 (requiring that all imported gunpowder be deposited at the public
historical laws not presented by the parties, as the district court did when it raised the law
enacted by the Third Congress. Although “[c]ourts are . . . entitled to decide a case based
on the historical record compiled by the parties,” Bruen, 597 U.S. at 25 n.6 (emphasis
added), nothing in Bruen suggests that it cabined a court’s authority to take judicial notice
of undisputed facts whose accuracy cannot reasonably be questioned, Fed. R. Evid. 201(b).
See Oneida Indian Nation of New York v. State of N.Y., 691 F.2d 1070, 1086 (2d Cir. 1982)
(holding that judicial notice of historical evidence is admissible when there is “no dispute
as to the authenticity of such materials and judicial notice is limited to law, legislative facts,
or factual matters that are incontrovertible”).

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gunpower magazine and prohibiting the sale of such gunpowder
prior to an official inspection). And third, some of the historical
analogues restricted sales to remain within permitted zones much
smaller than entire states. See, e.g., Virginia Law (prohibiting sales
more than three miles from English plantations). Such laws
necessarily operated as restrictions on in-state purchases, not merely
on out-of-state sales.
More fundamentally, focusing narrowly on buyer-side, as
opposed to seller-side, regulations reads Rahimi and Bruen too
narrowly. Rahimi made clear that the proper inquiry looks to “the
principles that underpin our regulatory tradition,” and does not
require a “historical twin.” 602 U.S. at 692 (quotation marks omitted).
Based on this kind of analogical reasoning, Rahimi upheld a
temporary ban on firearm possession triggered by a civil protective
order’s finding of perceived risk, even though no historical law
imposed an identical burden or specifically disarmed domestic
abusers. Rahimi instead found two historical analogues by identifying
the relevant similarity at a higher level of generality. It found that
surety laws allowed magistrates to require those deemed at risk of
future misbehavior, including the misuse of firearms, to either post a
bond or be jailed. Id. at 695–96. It also noted that “going armed” laws
disarmed those convicted of “riding or going armed . . . [to] terrify[]
the good people of the land.” Id. at 697 (quoting 4 Blackstone 149).
Although “[these] statutes did not utilize anything like the modern
civil protective order that triggered the prohibition of 18 U.S.C.
§ 922(g)(8) that was upheld in Rahimi,” they nonetheless were valid
analogues because “they all used their differing procedural

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mechanisms to disarm those who were determined to be dangerous.”
Antonyuk, 120 F.4th at 998. Here, a prohibition on selling outside of
state borders and a prohibition on buying outside of state borders are
two sides of the same coin, where the ultimate “burden on the right
of armed self-defense,” Bruen, 597 U.S. at 29, is the same—that one
must generally transact in-state.
Concerning the “why,” § 922(a)(3) serves similar purposes to
those served by its historical analogues. Congress enacted § 922(a)(3)
in part to prevent dangerous individuals from acquiring firearms,
reasoning “that the ease with which any person can acquire
firearms . . . is a significant factor in the prevalence of lawlessness and
violent crime in the United States.” Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, § 901(a), 82 Stat. 197, 225. The
statute makes explicit mention of cross-border transactions, noting
“that the acquisition on a mail-order basis of firearms . . . by
nonlicensed individuals, from a place other than their State of
residence, has materially tended to thwart the effectiveness of State
laws and regulations, and local ordinances.” Id. Likewise, the Senate
Report on § 922 made clear that “[t]he principal purposes of title IV
are to aid in making it possible to keep firearms out of the hands of
those not legally entitled to possess them because of age, criminal
background, or incompetency, and to assist law enforcement
authorities in the States and their subdivisions in combating the
increasing prevalence of crime in the United States.” S. Rep. No. 90-
1097, at 28 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2113–14.
Numerous Founding-era laws similarly sought to ensure
compliance with proper channels of firearm acquisition and prevent

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potentially dangerous individuals from acquiring weapons. As this
Court previously recognized, Rahimi itself collected “various laws
from the 18th century and earlier [that] authorized the prohibition of
firearm possession by persons identified by legislatures and courts as
dangerous to others.” Antonyuk, 120 F.4th at 971 (citing Rahimi, 602
U.S. at 699–700). “English, American colonial, and early American
histories abound with examples of laws demonstrating that
legislatures had broad authority to regulate firearms, including by
disarming large classes of people . . . based on a perception that
persons in those categories were inherently dangerous or non-law-
abiding.” Zherka v. Bondi, 140 F.4th 68, 85 (2d Cir. 2025).
Some historical laws, like § 922(a)(3), did not target specific
groups deemed dangerous but instead imposed generally applicable
restrictions. The colonial Connecticut law discussed above, which
criminalized the sale of arms outside one’s jurisdiction, did so in an
effort to prevent sale of weapons to Native Americans, whom
colonists perceived as dangerous. Trumbull, supra, at 138 (prohibiting
trade of ammunition outside the jurisdiction “whereby [it] might
supply the Ind[i]ans”). Similarly, the Virginia prohibition on
possession of arms or ammunition more than three miles from an
English plantation did so as part of an act prohibiting trade with
Native Americans. Virginia Law, supra, at 336–37. Other early
colonial laws also criminalized the sale or provision of firearms or
ammunition to Native Americans. See, e.g., Of the Private Trade of
Those Who Sail in the Service, in Laws and Ordinances of New
Netherland, 1638-1674, at 278 (E.B. O’Callaghan trans., Albany, Weed,
Parsons & Co. 1868) (1656 ordinance prohibiting the carrying of arms

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or ammunition to sell or barter to Native Americans); 1 Records of the
Governor and Company of the Massachusetts Bay in New
England 196 (Nathaniel B. Shurtleff, ed., Boston, William White 1853)
(1637 law prohibiting selling firearms to or repairing firearms for
Native Americans).
Although “[m]any of those laws are offensive to contemporary
moral sensitivities, or might well be deemed unconstitutional today
on First and Fourteenth Amendment grounds,” “[t]hey
are . . . relevant to the Second Amendment historical analysis that
Bruen requires we conduct.” Zherka, 140 F.4th at 85. Such historical
analogues, far more expansive and burdensome than the law at issue
here, reflect a longstanding tradition of regulating firearm
transactions, and even possession, in order to keep weapons out of
the hands of those deemed dangerous. And just like § 922(a)(3), the
Connecticut and Virginia laws enacted generally-applicable
restrictions—prohibiting any sale of weapons outside the jurisdiction
or any possession of more-than-necessary weapons three miles from
an English plantation—to prevent certain individuals from acquiring
weapons.
Lucha El argues that these historical laws are insufficient in
number to satisfy the history and tradition test. We disagree. First,
the government has offered a reasonably substantial number of
analogues. But even if it hadn’t, Antonyuk made clear that “it is . . . not
dispositive whether comparable historical regulations exist in
significant number,” as Bruen’s rejection of the sufficiency of only a
few historical analogues “occurred in the exceptional context of a
regulation that ‘contradicted the overwhelming weight of other, more

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contemporaneous historical evidence.’” 120 F.4th at 971–72 (cleaned
up) (quoting Bruen, 597 U.S. at 67–68). Because Lucha El has not
provided countervailing contemporaneous historical evidence, the
government need not provide historical analogues in significant
number.
The government has thus met its burden under Bruen of
showing that § 922(a)(3) is consistent with this nation’s historical
tradition of firearm regulation.
CONCLUSION
In sum, § 922(a)(3) is a presumptively lawful commercial sale
regulation that does not eliminate, or even materially burden, the
ability of law-abiding, responsible citizens to keep and bear firearms.
Furthermore, § 922(a)(3)’s application to Lucha El is consistent with
our nation’s historical tradition of firearm regulation and therefore
satisfies the second prong of the Bruen test as well. Accordingly, we
find that Lucha El’s conviction pursuant to § 922(a)(3) does not violate
the Second Amendment.
The judgment of the United States District Court for the
Southern District of New York is AFFIRMED.

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