Bryan David Range v. Attorney General United States of America

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-2835
______________
BRYAN DAVID RANGE,
Appellant
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA;
REGINA LOMBARDO, Acting Director, Bureau of Alcohol,
Tobacco, Firearms and Explosives
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5:20-CV-03488)
District Judge: Honorable Gene E.K. Pratter
______________
Argued before Merits Panel on September 19, 2022
Argued En Banc on February 15, 2023
Reargued En Banc on October 9, 2024 on Remand from the
Supreme Court of the United States
______________

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Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN,
SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,
MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES,
CHUNG, ROTH,* and AMBRO,**
Circuit Judges.
(Filed: December 23, 2024)
William V. Bergstrom
Peter A. Patterson [Argued]
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Michael P. Gottlieb
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401
Counsel for the Appellant
Joseph G. S. Greenlee
Firearms Policy Coalition Action
5550 Painted Mirage Road
* Judge Roth is participating as a member of the en banc court
pursuant to 3d Cir. I.O.P. 9.6.4.
** Judge Ambro assumed senior status on February 6, 2023 and
elected to continue participating as a member of the en banc
court pursuant to 3d Cir. I.O.P. 9.6.4.

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Suite 320
Las Vegas, NV 89149
Counsel for Amici Curiae FPC Action Foundation and
Firearms Policy Coalition, Inc. in Support of Appellant
Elisa A. Long
Lisa B. Freeland
Renee Pietropaolo
Eleni Kousoulis
K. Anthony Thomas
Helen A. Marino
Heidi R. Freese
Matthew Campbell
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Amicus Curiae Federal Public &
Community Defender Organization of the Third
Circuit in Support of Appellant
Brian M. Boynton
Jacqueline C. Romero
Mark B. Stern
Michael S. Raab
Abby C. Wright
Kevin B. Soter [Argued]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.

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Washington, DC 20530
Counsel for the Appellees
Janet Carter
Everytown Law
450 Lexington Avenue
P.O. Box 4148
New York, NY 10017
Counsel for Amicus Curiae Everytown for Gun Safety
in Support of Appellees
______________
OPINION OF THE COURT
______________
HARDIMAN, Circuit Judge, filed the Opinion of the Court
with whom CHAGARES, Chief Judge, and JORDAN, BIBAS,
PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-
REEVES, and CHUNG, Circuit Judges, join. MATEY,
Circuit Judge, filed a concurring opinion. PHIPPS, Circuit
Judge, filed a concurring opinion. KRAUSE, Circuit Judge,
filed an opinion concurring in the judgment, with whom
ROTH, Circuit Judge, joins in part. ROTH, Circuit Judge,
filed an opinion concurring in the judgment, with whom
KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO,
Circuit Judge, concurs in the judgment only. SHWARTZ,
Circuit Judge, filed a dissenting opinion with whom
RESTREPO, Circuit Judge, joins.

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Bryan Range appeals the District Court’s summary
judgment rejecting his claim that the federal “felon-in-
possession” law—18 U.S.C. § 922(g)(1)—violates his Second
Amendment right to keep and bear arms. We agree with Range
that, despite his false statement conviction, he remains among
“the people” protected by the Second Amendment. And
because the Government did not carry its burden of showing
that the principles underlying our Nation’s history and tradition
of firearm regulation support disarming Range, we will reverse
and remand.
I
A
The material facts are undisputed. In 1995, Range
pleaded guilty in the Court of Common Pleas of Lancaster
County to one count of making a false statement to obtain food
stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann.
§ 481(a). In those days, Range was earning between $9.00 and
$9.50 an hour as he and his wife struggled to raise three young
children on $300 per week. Range’s wife prepared an
application for food stamps that understated Range’s income,
which she and Range signed. Though he did not recall
reviewing the application, Range accepted full responsibility
for the misrepresentation.
Range was sentenced to three years’ probation, which
he completed without incident. He also paid $2,458 in
restitution, $288.29 in costs, and a $100 fine. Other than his
1995 conviction, Range’s criminal history is limited to minor
traffic and parking infractions and a summary offense for
fishing without a license.

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When Range pleaded guilty in 1995, his conviction was
classified as a Pennsylvania misdemeanor punishable by up to
five years’ imprisonment. That conviction precludes Range
from possessing a firearm because federal law generally makes
it “unlawful for any person . . . who has been convicted in any
court, of a crime punishable by imprisonment for a term
exceeding one year” to “possess in or affecting commerce, any
firearm or ammunition.” 18 U.S.C. § 922(g)(1). Although state
misdemeanors are excluded from that prohibition if they are
“punishable by a term of imprisonment of two years or less,”
18 U.S.C. § 921(a)(20)(B), that safe harbor provided no refuge
for Range because he faced up to five years’ imprisonment.
In 1998, Range tried to buy a firearm but was rejected
by Pennsylvania’s instant background check system. Range’s
wife, thinking the rejection a mistake, gifted him a deer-
hunting rifle. Years later, Range tried to buy a firearm and was
rejected again. After researching the reason for the denial,
Range learned he was barred from buying a firearm because of
his 1995 conviction. Range then sold his deer-hunting rifle to
a firearms dealer.
B
In 2020, Range sued in the United States District Court
for the Eastern District of Pennsylvania, seeking a declaration
that § 922(g)(1) violates the Second Amendment as applied to
him. He also requested an injunction prohibiting the law’s
enforcement against him. Range asserts that but for
§ 922(g)(1), he would “for sure” purchase another deer-
hunting rifle and “maybe a shotgun” for self-defense at home.
App. 197–98. Range and the Government cross-moved for
summary judgment.

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The District Court granted the Government’s motion.
Range v. Lombardo, 557 F. Supp. 3d 609, 611 (E.D. Pa. 2021).
Faithfully applying our then-controlling precedents, the Court
held that Range’s crime was “serious” enough to deprive him
of his Second Amendment rights. Id. In doing so, the Court
noted the two-step framework we established in United States
v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Range, 557 F.
Supp. 3d at 613. The Court began—and ended—its analysis at
the first step. It considered five factors to determine whether
Range’s conviction made him an “unvirtuous citizen” of the
kind historically barred from possessing a firearm: (1) whether
the conviction was classified as a misdemeanor or a felony; (2)
whether the elements of the offense involved violence; (3) the
sentence imposed; (4) whether there was a cross-jurisdictional
consensus as to the seriousness of the crime, Binderup v. Att’y
Gen., 836 F.3d 336, 351–52 (3d Cir. 2016) (en banc)
(plurality); and (5) the potential for physical harm to others
created by the offense, Holloway v. Att’y Gen., 948 F.3d 164,
173 (3d Cir. 2020). Range, 557 F. Supp. 3d at 613–14.
The Government conceded that four of the five factors
favored Range because he was convicted of a nonviolent, non-
dangerous misdemeanor and had not been incarcerated. Id. at
614. But the District Court held the “cross-jurisdictional
consensus” factor favored the Government because about 40
jurisdictions would have classified his crime as a felony. Id. at
614–15. Noting that our decisions in Holloway, 948 F.3d at
177, and Folajtar v. Att’y Gen., 980 F.3d 897, 900 (3d Cir.
2020), had rejected as-applied challenges to § 922(g)(1)
despite only one of the relevant factors weighing in the
Government’s favor, the District Court held that the cross-
jurisdictional consensus alone sufficed to disarm Range.
Range, 557 F. Supp. 3d at 615–16. Range timely appealed.

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While Range’s appeal was pending, the Supreme Court
decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597
U.S. 1 (2022). The parties then submitted supplemental
briefing on Bruen’s impact. A panel of this Court affirmed the
District Court’s summary judgment, holding that the
Government had met its burden to show that § 922(g)(1)
reflects the Nation’s historical tradition of firearm regulation
such that Range’s conviction “places him outside the class of
people traditionally entitled to Second Amendment rights.”
Range v. Att’y Gen., 53 F.4th 262, 266 (3d Cir. 2022) (per
curiam).
Range petitioned for rehearing en banc. We granted the
petition and vacated the panel opinion. Range v. Att’y Gen., 56
F.4th 992 (3d Cir. 2023). The en banc Court reversed and
remanded for the District Court to enter a declaratory judgment
for Range. We concluded that Range remained one of “the
people” protected by the Second Amendment and that the
Government did not show the Nation has a longstanding
history and tradition of disarming people like Range. Range v.
Att’y Gen., 69 F.4th 96, 98 (3d Cir. 2023) (en banc). The
Government petitioned the Supreme Court for a writ of
certiorari.
While the Government’s petition was pending, the
Supreme Court decided United States v. Rahimi, 144 S. Ct.
1889 (2024). The Court then vacated our en banc decision in
Range and remanded for further consideration. Garland v.
Range, 144 S. Ct. 2706 (2024). The parties and amicus filed
more briefs and we heard argument again.

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II
The District Court had jurisdiction under 28 U.S.C.
§ 1331 because Range’s complaint raised a federal question:
whether the federal felon-in-possession law, 18 U.S.C.
§ 922(g)(1), violates the Second Amendment as applied to
Range. We have jurisdiction under 28 U.S.C. § 1291.
III
In District of Columbia v. Heller, the Supreme Court
held that the Second Amendment guarantees an individual
right to keep and bear arms unconnected with militia service.
554 U.S. 570, 583–84 (2008). Given that right, the Court held
unconstitutional a District of Columbia law that banned
handguns and required other “firearms in the home be rendered
and kept inoperable at all times.” Id. at 630. It reached that
conclusion after scrutinizing the text of the Second
Amendment and deducing that it “codified a pre-existing
right.” Id. at 592. The Heller opinion did not apply
intermediate or strict scrutiny. In fact, it did not apply means-
end scrutiny at all. But in response to Justice Breyer’s dissent,
the Court noted in passing that the challenged law would be
unconstitutional “[u]nder any of the standards of scrutiny that
we have applied to enumerated constitutional rights.” Id. at
628–29.
Many courts around the country, including this one,
overread that passing comment to require a two-step approach
in Second Amendment cases, utilizing means-end scrutiny at
the second step. We did so for the first time in Marzzarella,
614 F.3d at 97, and we continued down that road for over a
decade. See, e.g., Drake v. Filko, 724 F.3d 426, 429, 434–40
(3d Cir. 2013); Binderup, 836 F.3d at 344–47, 353–56; Ass’n

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of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d
106, 117 (3d Cir. 2018); Beers v. Att’y Gen., 927 F.3d 150,
154–55 (3d Cir. 2019), vacated as moot sub nom. Beers v.
Barr, 140 S. Ct. 2758 (2020); Holloway, 948 F.3d at 169–72;
Folajtar, 980 F.3d at 901.
Bruen rejected the two-step approach as “one step too
many.” 597 U.S. at 19. The Supreme Court declared: “Heller
and McDonald do not support applying means-end scrutiny in
the Second Amendment context.” Id. Instead, those cases teach
“that when the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects
that conduct.” Id. at 17. And “[o]nly if a firearm regulation is
consistent with this Nation’s historical tradition may a court
conclude that the individual’s conduct falls outside the Second
Amendment’s ‘unqualified command.’” Id. (quoting
Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Applying that standard, Bruen held “that the Second and
Fourteenth Amendments protect an individual’s right to carry
a handgun for self-defense outside the home.” Id. at 10. But the
“where” question decided in Bruen is not at issue here. Range’s
appeal instead requires us to examine who is among “the
people” protected by the Second Amendment. U.S. Const.
amend. II; see Bruen, 597 U.S. at 72 (Alito, J., concurring)
(“Our holding decides nothing about who may lawfully
possess a firearm . . . .”); see also Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-
Defense: An Analytical Framework and a Research Agenda,
56 UCLA L. Rev. 1443 (2009) (distinguishing among “who,”
“what,” “where,” “when,” and “how” restrictions). Range
claims he is one of “the people” entitled to keep and bear arms
and that our Nation has no historical tradition of disarming
people like him. The Government responds that Range has not

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been one of “the people” since 1995, when he pleaded guilty
in Pennsylvania state court to making a false statement on his
food stamp application, and that his disarmament is historically
supported.
IV
Having explained how Bruen abrogated our Second
Amendment jurisprudence, we now apply the Supreme Court’s
established method to the facts of Range’s case. Both sides
agree that we no longer conduct means-end scrutiny. And as
the panel wrote: “Bruen’s focus on history and tradition,”
means that “Binderup’s multifactored seriousness inquiry no
longer applies.” Range, 53 F.4th at 270 n.9.
After Bruen, we must first decide whether the text of the
Second Amendment applies to a person and his proposed
conduct. 597 U.S. at 31–33. If it does, the government now
bears the burden of proof: it “must affirmatively prove that its
firearms regulation is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.”
Id. at 19.
A
We begin with the threshold question: whether Range is
one of “the people” who have Second Amendment rights. The
Government contends that the Second Amendment does not
apply to Range at all because “[t]he right to bear arms has
historically extended to the political community of law-
abiding, responsible citizens.” Gov’t En Banc Br. at 2. So

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Range’s 1995 conviction, the Government insists, removed
him from “the people” protected by the Second Amendment.
The Supreme Court referred to “law-abiding citizens”
in Heller. In response to Justice Stevens’s dissent, which relied
on United States v. Miller, 307 U.S. 174 (1939), the Court
reasoned that “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for
lawful purposes.” Heller, 554 U.S. at 625. In isolation, this
language seems to support the Government’s argument. But
Heller said more; it explained that “the people” as used
throughout the Constitution “unambiguously refers to all
members of the political community, not an unspecified
subset.” Id. at 580. So the Second Amendment right, Heller
said, presumptively “belongs to all Americans.” Id. at 581.
Range cites these statements to argue that “law-abiding
citizens” should not be read “as rejecting Heller’s
interpretation of ‘the people.’” Range Pet. for Reh’g at 8. We
agree with Range for four reasons.
First, the criminal histories of the plaintiffs in Heller,
McDonald, and Bruen were not at issue in those cases. So their
references to “law-abiding, responsible citizens” were dicta.
And while we heed that phrase, we are careful not to overread
it as we and other circuit courts did with Heller’s statement that
the District of Columbia firearm law would fail under any form
of heightened scrutiny.
Second, other constitutional provisions refer to “the
people.”1 For instance, “the people” are recognized as having
1 See, e.g., U.S. Const. pmbl. (“We the People of the United
States . . . .” (emphasis added)); id. amend. IX (recognizing

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rights to assemble peaceably, to petition the government for
redress,2 and to be protected against unreasonable searches and
seizures.3 Felons are not categorically barred from First
Amendment or Fourth Amendment protection because of their
status. It is true, however, that prisoners have no First
Amendment right to peaceably assemble, see Pell v. Procunier,
417 U.S. 817, 822 (1974), and no Fourth Amendment right as
to prison-cell searches. Hudson v. Palmer, 468 U.S. 517, 526
(1984). We see no reason to adopt a reading of “the people”
that excludes Americans from the scope of the Second
Amendment while they retain their constitutional rights in
other contexts.
Third, as the plurality stated in Binderup: “That
individuals with Second Amendment rights may nonetheless
be denied possession of a firearm is hardly illogical.” 836 F.3d
at 344 (Ambro, J.). That statement tracks then-Judge Barrett’s
dissenting opinion in Kanter v. Barr, in which she persuasively
explained that “all people have the right to keep and bear
arms,” though the legislature may constitutionally “strip
certain groups of that right.” 919 F.3d 437, 452 (7th Cir. 2019).
rights “retained by the people”); id. amend. X (acknowledging
the powers reserved “to the people”).
2 U.S. Const. amend. I (“Congress shall make no law
respecting . . . the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
(emphasis added)).
3 U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”
(emphasis added)).

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We agree with that statement in Binderup and then-Judge
Barrett’s reasoning.
Fourth, as the Government concedes, see Gov’t Range
II En Banc Br. 25, Rahimi makes clear that citizens are not
excluded from Second Amendment protections just because
they are not “responsible.” See Rahimi, 144 S. Ct. at 1903. The
Supreme Court cautioned that “responsible” is too vague a
concept to dictate the Second Amendment’s applicability and
using the term that way would create an “unclear . . . rule” that
does not “derive from [Supreme Court] case law.” Id. So too
with the phrase “law-abiding.” Does it exclude those who have
committed summary offenses or petty misdemeanors, which
typically result in a ticket and a small fine? No. We are
confident that the Supreme Court’s references to “law-abiding,
responsible citizens” do not mean that every American who
gets a traffic ticket is no longer among “the people” protected
by the Second Amendment. Perhaps, then, the category refers
only to those who commit “real crimes” like felonies or felony-
equivalents? At English common law, felonies were so serious
they were punishable by estate forfeiture and even death. 4
William Blackstone, Commentaries on the Laws of England 54
(1769). But at the Founding, many states were moving away
from making felonies—including crimes akin to making false
statements—punishable by death in America. See United
States v. Moore, 111 F.4th 266, 270–72 (3d Cir. 2024) (citing
various Founding-era felony laws and penalties). For example,
in Massachusetts, New Jersey, Kentucky, Virginia,
Connecticut, and New York, forgery and counterfeiting were
punishable with imprisonment, hard labor, fines, or corporal

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punishment, but not death.4 Federally, the Crimes Act of 1790
criminalized conduct involving falsification of records and
stealing property of the United States, and punished such
conduct with fines, corporal punishment, or a term of
imprisonment.5 And today, felonies include a wide swath of
crimes, some of which seem minor.6 Meanwhile, some
4 James T. Mitchell et al., Compiled Statutes at Large of
Pennsylvania from 1682 to 1801 (1700-1809); An Act to
Prevent Forgery, And For the Punishment of Those Who Are
Guilty of the Same. 1784 Mass. Acts Ch. 67; Virginia,
Collection of All Such Acts of the General Assembly of
Virginia, of a Public or Permanent Nature, as are Now in Force
(1803); Harry Toulmin, Collection of All the Public and
Permanent Acts of the General Assembly of Kentucky Which
Are Now in Force (1802); Acts and Laws of the State of
Connecticut (1784); William Paterson, Laws of the State of
New Jersey (1800); Thomas Greenleaf, Laws of the State of
New York, Comprising the Constitution, and the Acts of the
Legislature, since the Revolution, from the First to the
Fifteenth Session (1797).
5 See Crimes Act of 1790, §§ 14–15, 1 Stat. 122, 115–16.
6 See, e.g., 18 U.S.C. § 1464 (uttering “any obscene, indecent,
or profane language by means of radio communication”);
Mich. Comp. Laws Ann. § 445.574a(2)(d) (returning out-of-
state bottles or cans); 18 Pa. Cons. Stat. Ann. § 3929.1 (third
offense of library theft of more than $150); id. § 7613 (reading
another’s email without permission).

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misdemeanors seem serious.7 As the Supreme Court noted
recently: “a felon is not always more dangerous than a
misdemeanant.” Lange v. California, 594 U.S. 295, 305 (2021)
(cleaned up).
At root, the Government’s claim that “felons are not
among ‘the people’ protected by the Second Amendment,” see
Gov’t Range II En Banc Br. 9 n.1, devolves authority to
legislators to decide whom to exclude from “the people.” We
reject that approach because such “extreme deference gives
legislatures unreviewable power to manipulate the Second
Amendment by choosing a label.” Folajtar, 980 F.3d at 912
(Bibas, J., dissenting). And that deference would contravene
Heller’s reasoning that “the enshrinement of constitutional
rights necessarily takes certain policy choices off the table.”
554 U.S. at 636; see also Bruen, 597 U.S. at 26 (warning
against “judicial deference to legislative interest balancing”).
In sum, we reject the Government’s contention that
“felons are not among ‘the people’ protected by the Second
Amendment.” Heller and its progeny lead us to conclude that
Bryan Range remains among “the people” despite his 1995
false statement conviction.
Having determined that Range is one of “the people,”
we turn to the easy question: whether § 922(g)(1) regulates
Second Amendment conduct. It does. Range’s request—to
possess a rifle to hunt and a shotgun to defend himself at
home—tracks the constitutional right as defined by Heller. 554
7 See, e.g., 18 Pa. Cons. Stat. Ann. § 2504 (involuntary
manslaughter); id. § 2707 (propulsion of missiles into an
occupied vehicle or onto a roadway); 11 Del. Code § 881
(bribery).

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U.S. at 582 (“[T]he Second Amendment extends, prima facie,
to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding.”). So “the
Second Amendment’s plain text covers [Range’s] conduct,”
and “the Constitution presumptively protects that conduct.”
Bruen, 597 U.S. at 17.
B
Because Range and his proposed conduct are protected
by the Second Amendment, we now ask whether the
Government can strip him of his right to keep and bear arms.
To answer that question, we must determine whether the
Government has shown that applying § 922(g)(1) to Range
would be “consistent with the Nation’s historical tradition of
firearm regulation.” Id. at 24. We hold that the Government has
not carried its burden.
To preclude Range from possessing firearms, the
Government must show that § 922(g)(1), as applied to him, “is
part of the historical tradition that delimits the outer bounds of
the right to keep and bear arms.” Id. at 19. Historical tradition
can be established by analogical reasoning, which “requires
only that the government identify a well-established and
representative historical analogue, not a historical twin.” Id. at
30. To be compatible with the Second Amendment, modern
laws must be “‘relevantly similar’ to laws that our tradition is
understood to permit.” Rahimi, 144 S. Ct. at 1898 (quoting
Bruen, 597 U.S. at 29). “Why and how the regulation burdens
the right are central to this inquiry.” Id.
In attempting to carry its burden, the Government relies
on the Supreme Court’s statement in Heller that “nothing in
our opinion should be taken to cast doubt on longstanding

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prohibitions on the possession of firearms by felons.” 554 U.S.
at 626. A plurality of the Court reiterated that point in
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). In his
concurring opinion in Bruen, Justice Kavanaugh, joined by the
Chief Justice, wrote that felon-in-possession prohibitions are
“presumptively lawful” under Heller and McDonald. 597 U.S.
at 81 (quoting Heller, 554 U.S. at 626–27 & n.26).8
Section 922(g)(1) is a straightforward “prohibition[ ] on
the possession of firearms by felons.” Heller, 554 U.S. at 626.
And since 1961 “federal law has generally prohibited
individuals convicted of crimes punishable by more than one
year of imprisonment from possessing firearms.” Gov’t En
Banc Br. at 1; see An Act To Strengthen The Federal Firearms
Act, Pub. L. No. 87-342, 75 Stat. 757 (1961). But the earliest
version of that statute, the Federal Firearms Act of 1938,
applied only to violent criminals. Pub. L. No. 75-785, §§ 1(6),
2(f), 52 Stat. 1250, 1250–51 (1938). As the First Circuit
explained: “the current federal felony firearm ban differs
considerably from the [original] version . . . . [T]he law
initially covered those convicted of a limited set of violent
crimes such as murder, rape, kidnapping, and burglary, but
extended to both felons and misdemeanants convicted of
qualifying offenses.” United States v. Booker, 644 F.3d 12, 24
(1st Cir. 2011); see also United States v. Skoien, 614 F.3d 638,
640 (7th Cir. 2010) (en banc).
Even if the 1938 Act were “longstanding” enough to
warrant Heller’s assurance—a dubious proposition given the
8 The Heller, McDonald, and Bruen Courts cited no such
“longstanding prohibitions,” presumably because they did “not
undertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment.” Heller, 554 U.S. at 626.

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Rahimi Court’s focus on Founding-era sources, 144 S. Ct. at
1899–900, and the Bruen Court’s emphasis on Founding- and
Reconstruction-era sources, 597 U.S. at 34, 59–60—Range
would not have been a prohibited person under that law.
Whatever timeframe the Supreme Court might establish in a
future case, see Rahimi, 144 S. Ct. at 1898 n.1, we are confident
that a law passed in 1961—some 170 years after the Second
Amendment’s ratification and nearly a century after the
Fourteenth Amendment’s ratification—falls well short of
“longstanding” for purposes of demarcating the scope of a
constitutional right. So the 1961 iteration of § 922(g)(1) does
not satisfy the Government’s burden.9
The Government’s attempt to identify older historical
analogues also fails. The Government argues that “legislatures
traditionally used status-based restrictions” to disarm certain
groups of people. Gov’t En Banc Br. at 4 (quoting Range, 53
F.4th at 282). Apart from the fact that those restrictions based
9 Nor are we convinced by the 1920s and 1930s state statutes
banning firearm possession by felons, or the 1960s laws
disarming drug addicts and drug users, 1980s laws disarming
persons unlawfully present in the United States and persons
dishonorably discharged from the armed forces, or 1990s laws
disarming domestic violence misdemeanants. Gov’t Range II
En Banc Br. 17, 20–21. These are all too late: “20th-century
evidence . . . does not provide insight into the meaning of the
Second Amendment when it contradicts earlier evidence.”
Bruen, 597 U.S. at 66 n.28; Rahimi, 144 S. Ct. at 1924 (Barrett,
J. concurring) (“[T]he history that matters most is the history
surrounding the ratification of the text; that backdrop
illuminates the meaning of the enacted law. History (or
tradition) that long postdates ratification does not serve that
function.”).

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on race and religion now would be unconstitutional under the
First and Fourteenth Amendments, the Government does not
successfully analogize those groups to Range. That Founding-
era governments disarmed groups they distrusted like
Loyalists, Native Americans, Quakers, Catholics, and Blacks
does nothing to prove that Range is part of a similar group
today. And any such analogy would be “far too broad[ ].” See
Bruen, 597 U.S. at 31 (noting that historical restrictions on
firearms in “sensitive places” do not empower legislatures to
designate any place “sensitive” and then ban firearms there).
For instance, as the Government notes, colonial laws disarmed
Loyalists for helping the British army or “bearing arms
against” the Continental Congress. Gov’t Range II En Banc Br.
13 (quoting Resolution of Mar. 13, 1776, in Journal of the
Provincial Congress of South Carolina, 1776, at 77 (1776)).
The colonies reasonably feared that Loyalists might take up
arms again. But there is no such basis to fear that Range is
disloyal to his country.
According to the Government, taken together, these
proposed historical analogues support a principle that
“American legislatures disarmed classes of individuals who
posed a danger of misusing firearms.” Gov’t Range II En Banc
Br. 19.
Rahimi did bless disarming (at least temporarily)
physically dangerous people. The law that it upheld required
“a finding that [the defendant] represents a credible threat to
[someone else’s] physical safety.” 18 U.S.C. § 922(g)(8)(C)(i);
144 S. Ct. at 1894, 1896, 1898, 1901–02. It did so “because the
Government offer[ed] ample evidence” of a tradition of
disarming people who “pose[ ] a clear threat of physical
violence to another.” Id. at 1898, 1901; accord id. at 1898
(“credible threat to the physical safety of others”). But the

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21
Government does not try to justify disarming Range on this
ground, and with good reason: it has no evidence that he poses
a physical danger to others or that food-stamp fraud is closely
associated with physical danger. It conceded as much the first
time this Court heard the case en banc. Oral argument at 35:05–
34:10; 32:55–31:52; 28:45–28:10.
Rather, the Government seeks to stretch dangerousness
to cover all felonies and even misdemeanors that federal law
equates with felonies. It notes that Rahimi left open the
possibility of “banning the possession of guns by categories of
persons thought by a legislature to present a special danger of
misuse.” Gov’t Range II En Banc Br. 19 (quoting 144 S. Ct. at
1901). And it argues that those “convicted of serious crimes,
as a class, can be expected to misuse firearms.” Id. at 22
(internal quotation marks omitted); accord United States v.
Jackson, 110 F.4th 1120, 1127–29 (8th Cir. 2024).
Even if that categorical argument could suffice to
uphold the original 1938 felon-in-possession ban, it does not
support the current one. Again, it is “far too broad[ ].” Bruen,
597 U.S. at 31. It operates “at such a high level of generality
that it waters down the right.” Rahimi, 144 S. Ct. at 1926
(Barrett, J., concurring). Like the Sixth Circuit, we refuse to
defer blindly to § 922(g)(1) in its present form. See United
States v. Williams, 113 F.4th 637, 658–61 (6th Cir. 2024)
(categorizing crimes as crimes against the person, crimes like
burglary and drug trafficking that “pose a significant threat of
danger,” and nondangerous ones).
To support the de facto permanent disarmament that
§ 922(g)(1) imposes, the Government points out that “the
Founding generation determined that many criminal offenses
were of such ‘gravity’ that they should ‘expose offenders to the

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22
harshest of punishments, including death.’” Gov’t Range II En
Banc Br. 10 (citation omitted). Our dissenting colleagues
likewise reason “that fraudsters could lose their life, and hence
their firearms rights.” Dissent of Shwartz, J., at 5. It is true that
“founding-era practice” was to punish some “felony offenses
with death.” Gov’t Range II En Banc Br. 10. For example, the
First Congress made forging or counterfeiting a public security
a capital offense. See An Act for the Punishment of Certain
Crimes Against the United States, 1 Stat. 112, 115 (1790). That
said, the crime to which Range pleaded guilty—making a false
statement to obtain food stamps—may be more analogous to
other offense defined in the same law punishable by a term of
imprisonment or fine.10 While some states at first punished
nonviolent crimes “such as forgery and horse theft” with
death, see Folajtar, 980 F.3d at 904 (citations omitted), by the
early Republic, many states assigned lesser punishments.11
Yet the Founding-era practice of punishing some
nonviolent crimes with death does not suggest that the
particular (and distinct) punishment at issue here—de facto
lifetime disarmament for all felonies and felony-equivalent
misdemeanors—is rooted in our Nation’s history and tradition.
10 See e.g., Crimes Act of 1790, § 15, 1 Stat. 122, 115–16 (“any
person [who] shall feloniously . . . alter [or] falsify . . . any
record . . . in any of the courts of the United States, by means
whereof any judgment shall be reversed” is punishable by fine,
whipping, or “imprison[ment] not exceeding seven years”); id.
§ 16 (“any person . . . [in] custody . . . of any victuals provided
for the victualing of any soldiers . . . [who] for any lucre or
gain, . . . embezzle, purloin or convey away [such goods]” is
punishable by fine or public whipping).
11 See supra note 4.

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23
Though our dissenting colleagues read Rahimi as blessing
disarmament as a lesser punishment generally, the Court did
not do that. Instead, it authorized temporary disarmament as a
sufficient analogue to historic temporary imprisonment only to
“respond to the use of guns to threaten the physical safety of
others.” Compare Rahimi, 144 S. Ct. at 1902, with United
States v. Diaz, 116 F.4th 458, 469–70 (5th Cir. 2024) (similarly
broad reasoning).
For similar reasons, Founding-era laws that forfeited
felons’ weapons or estates are not sufficient analogues either.
Such laws often prescribed the forfeiture of the specific
weapon used to commit a firearms-related offense without
affecting the perpetrator’s right to keep and bear arms
generally. See, e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws
343–344 (“An Act for the Preservation of Deer, and other
Game, and to prevent trespassing with Guns”); Act of Apr. 20,
1745, ch. 3, N.C. Laws 69–70 (“An Act to prevent killing deer
at unseasonable times, and for putting a stop to many abuses
committed by white persons, under pretence of hunting”). So
in the Founding era, a felon could acquire arms after
completing his sentence and reintegrating into society.
Against this backdrop, it’s important to remember that
Range’s crime—making a false statement on an application for
food stamps—did not involve a firearm, so there was no
criminal instrument to forfeit. And even if there were,
government confiscation of the instruments of crime (or a
convicted criminal’s entire estate) differs from a status-based
lifetime ban on firearm possession. The Government has not
cited a single statute or case that precludes a convict who has
served his sentence from purchasing the same type of object
that he used to commit a crime. Nor has the Government cited
forfeiture cases in which the convict was prevented from

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24
regaining his possessions, including firearms (unless forfeiture
preceded execution). That’s true whether the object forfeited to
the government was a firearm used to hunt out of season, a car
used to transport cocaine, or a mobile home used as a
methamphetamine lab. And of those three, only firearms are
mentioned in the Bill of Rights.12
For the reasons stated, we hold that the Government has
not shown that the principles underlying the Nation’s historical
tradition of firearms regulation support depriving Range of his
Second Amendment right to possess a firearm.13 See Rahimi,
144 S. Ct. at 1898; Bruen, 597 U.S. at 17.
* * *
Our decision today is a narrow one. Bryan Range
challenged the constitutionality of 18 U.S.C. § 922(g)(1) only
12 Even arms used to commit crimes bordering on treason were
sometimes returned to the perpetrators during the Founding
era. After the Massachusetts militia quelled Shays’s Rebellion
in 1787, the state required the rebels and those who supported
them to “deliver up their arms.” 1 Private and Special Statutes
of the Commonwealth of Massachusetts from 1780–1805,
145–47 (1805). But those arms were to be returned after three
years upon satisfaction of certain conditions. Id. at 146–47.
13 Our concurring colleague criticizes that our opinion “creates
more questions than it answers” and that we “decline to adopt
any articulable methodology of [our] own.” Concurrence of
Krause, J., 67, 65. But in this as-applied constitutional
challenge, our task is to decide only Mr. Range’s case, rather
than preview how this Court would decide future Second
Amendment challenges.

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25
as applied to him given his violation of 62 Pa. Stat. Ann.
§ 481(a). Range remains one of “the people” protected by the
Second Amendment, and his eligibility to lawfully purchase a
rifle and a shotgun is protected by his right to keep and bear
arms. More than two decades after he was convicted of food-
stamp fraud and completed his sentence, he sought protection
from prosecution under § 922(g)(1) for any future possession
of a firearm. The record contains no evidence that Range poses
a physical danger to others. Because the Government has not
shown that our Republic has a longstanding history and
tradition of depriving people like Range of their firearms,
§ 922(g)(1) cannot constitutionally strip him of his Second
Amendment rights. We will reverse the judgment of the
District Court and remand so the Court can enter a declaratory
judgment for Range, enjoin enforcement of § 922(g)(1) against
him, and conduct any further proceedings consistent with this
opinion.

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1
MATEY, Circuit Judge, concurring.
Having “arms for [one’s] defence . . . is indeed a public
allowance, under due restrictions, of the natural right of
resistance and self-preservation.” 1 William Blackstone,
Commentaries *143–44. I agree with the majority that the
Justice Department has not shown that § 922(g)(1) can be
applied to disarm Bryan Range. I write separately to explain
why that conclusion follows classical principles respecting the
natural rights that inform “our regulatory tradition.” United
States v. Rahimi, 144 S. Ct. 1889, 1898 (2024). Doing so
demonstrates the “reason and spirit” of the law, 1 Blackstone,
Commentaries *61, or the “principles underlying the Second
Amendment,” Rahimi, 144 S. Ct. at 1898. Although historical
practices need not be a “dead ringer” or a “historical twin,”
Rahimi, 144 S. Ct. at 1898 (quoting N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022)), they must always
faithfully follow the “the first and primary end of human laws,
[which] is to maintain and regulate [the] absolute rights of
individuals,” Alexander Hamilton, The Farmer Refuted
(1775), reprinted in The Revolutionary Writings of Alexander
Hamilton 53 (Richard B. Vernier ed., 2008) (emphasis
omitted) (quoting 1 Blackstone, Commentaries *124). That is
the tradition informing our historical practice, and the principle
that necessarily guides our analysis.
I.
Preserving “unalienable rights” justified our separation
from England, Declaration of Independence para. 2 (U.S.
1776), and required a government “ordain[ed]” to “promote the
general Welfare” and “secure the Blessings of Liberty,” U.S.
Const., pmbl. That is because “natural liberty is a gift of the
beneficent Creator,” while “[c]ivil liberty is only natural

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2
liberty, modified and secured by the sanctions of civil society.”
Hamilton, supra, at 70 (emphasis omitted); see also Collected
Works of James Wilson 1083 (Kermit L. Hall & Mark David
Hall eds., 2007) (“[M]an does not exist for the sake of
government, but government instituted for the sake of man.”).
But the fundamental rights that predate America are not
unlimited, and like any law, never license acting contrary to the
common good.1 These inherent limitations apply to all of
man’s “natural rights,” and are consistent with the Supreme
Court’s repeated explanation that the “pre-existing”
“individual right to keep and bear arms” for self-defense is “not
unlimited.” District of Columbia v. Heller, 554 U.S. 570, 592,
595 (2008) (emphasis omitted); see also Bruen, 597 U.S. at 20;
Rahimi, 144 S. Ct. at 1897.2
1 See Collected Works of James Wilson 1055–56.
(“[S]elfishness and injury are as little countenanced by the law
of nature as by the law of man.”); Thomas Aquinas, Summa
Theologica, pt. I-II, q. 90, art. 2 (Fathers of the English
Dominican Province trans., Benzinger Bros. 1947) (c. 1271)
(“Consequently, since the law is chiefly ordained to the
common good, any other precept in regard to some individual
work, must needs be devoid of the nature of a law, save in so
far as it regards the common good. Therefore every law is
ordained to the common good.”).
2 See Collected Works of James Wilson at 1056. (“Upon
the whole, therefore, man’s natural liberty, instead of being
abridged, may be increased and secured in a government,
which is good and wise. As it is with regard to his natural
liberty, so it is with regard to his other natural rights.”); The
Unsigned Essays of Supreme Court Justice Joseph Story: Early
American Views of Law 262 (Valerie L. Horowitz ed., 2015)

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3
Surveying history helps us understand the reasons relied
on to regulate the right, see Bruen, 597 U.S. at 27–29; Rahimi,
144 S. Ct. at 1898, ensuring a “[c]ontinuity of [p]rinciples”
faithful to our inherited tradition.3 We look, in other words, for
“markers or indicators that the later doctrine is essentially
continuous with the earlier one and grows out of it, rather than
representing a break with the past that mutilates or
fundamentally transforms the core and essence of the
doctrine.” Adrian Vermeule, Common Good Constitutionalism
123 (2022). So we must consider the sources that animate the
(“[U]nder certain circumstances, life, and liberty, and property,
may justly be taken away; as, for instance, in order to prevent
crimes, to enforce the rights of other persons, or to secure the
safety and happiness of society.”).
3 John Henry Newman, An Essay on the Development
of Christian Doctrine 178 (Longmans, Green, & Co. 1909)
(1845); see also id. at 178–79 (“[P]rinciples are permanent,”
so “[d]octrines stand to principles, as the definitions to the
axioms and postulates of mathematics.”); Jamie G.
McWilliam, A Classical Legal Interpretation of the Second
Amendment, 28 Tex. Rev. L. & Pol. 125, 159 (2024) (“Even
when circumstances evolve, the principles remain the same” so
any “statutes governing arms for the common good must be
evaluated for their compliance with the principles of the ius
naturale and the determinations thereof embodied in the
Second Amendment.”); Bank of Toledo v. City of Toledo, 1
Ohio St. 622, 630–31 (1853) (“[L]aw is the perfection of
reason, and that it is the reason and justice of a legal principle,
which give to its vitality,” therefore, “recurrence should be had
to fundamental principles, and the authority of precedent
regarded so far only as there is to be found a conformity to
reason and the true nature of our own government.”).

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4
natural right to bear arms, and the origin of the tradition that
inspired that right, since “the object” of declaring our
independence was “not to find out new principles, or new
arguments, never before thought of, [or] merely to say things
which had never been said before.” Letter from Thomas
Jefferson to Henry Lee (May 8, 1825). Instead, we sought to
“place before mankind the common sense of the
subject . . . giv[ing] to that expression the proper tone and spirit
called for by the occasion. [A]ll [its] authority rests then on the
harmonising sentiments of the day, whether expressed, in
conversns in letters, printed essays or in the elementary books
of public right, as Aristotle, Cicero, Locke, Sidney Etc.” Id.4
4 I follow the well-established practice of consulting
classical authorities discussing natural law to inform the
determination of written rights. “[S]eventeenth- and
eighteenth-century jurists such as Hugo Grotius, Samuel
Pufendorf, Emmerich de Vattel, and William Blackstone” all
held a “jurisprudential worldview” that reflects an “interpretive
tradition” of viewing “natural law not simply as a collection of
universally valid substantive moral principles grounded in
human nature, but also as an interpretive approach.” Robert
Lowry Clinton, The Supreme Court Before John Marshall, 27
J. Sup. Ct. Hist. 222, 227 (2002). The theory that “the
substance of the law pre-exists its ‘declaration’ by courts or
other authoritative interpreters” “formed the horizon within
which the pre-Marshall and Marshall Courts understood the
judicial function and its limitations.” Id. Examples from the
early years following the Founding abound. See, e.g., United
States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (Story,
Circuit Justice, C.C.D. Mass. 1822) (No. 15,551) (“[E]very
doctrine, that may be fairly deduced by correct reasoning from
the rights and duties of nations, and the nature of moral

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5
obligation, may theoretically be said to exist in the law of
nations . . . . And I may go farther and say, that no practice
whatsoever can obliterate the fundamental distinction between
right and wrong, and that every nation is at liberty to apply to
another the correct principle, whenever both nations by their
public acts recede from such practice, and admits the injustice
or cruelty of it.”); United States v. Libellants & Claimants of
The Schooner Amistad (The Amistad), 40 U.S. (15 Pet.) 518,
595 (1841) (relying on the “enteral principles of justice and
international law”); Coffin v. United States, 156 U.S. 432,
453–57 (1895) (tracing the “principle that there is a
presumption of innocence in favor of the accused” back to the
Roman law). That practice continued into the Twentieth
Century. See, e.g., Lochner v. New York, 198 U.S. 45, 65–67
(1905) (Harlan, J., dissenting) (explaining that although the
“inherent rights” to “‘be free in the enjoyment of all his
faculties, to be free to use them in all lawful ways, to live and
work where he will, to earn his livelihood by any lawful
calling, [and] to pursue any livelihood or avocation’” are free
from “undu[e] interference,” the government may exercise its
“police power” to “promote the general welfare, or to guard the
public health, the public morals, or the public safety” (quoting
Allgeyer v. Lousiana, 165 U.S. 578, 589 (1897))); Pierce v.
Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268
U.S. 510, 535 (1925) (“The fundamental theory of liberty upon
which all governments in this Union repose excludes any
general power of the state to standardize its children by forcing
them to accept instruction from public teachers only. The child
is not the mere creature of the state; those who nurture him and
direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations.”); Berea
Coll. v. Kentucky, 211 U.S. 45, 67–68 (1908) (Harlan, J.,

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6
Absent exploration of the natural principles that support our
legal tradition, we overlook those “certain primary truths, or
first principles, upon which all subsequent reasonings must
depend.” The Federalist No. 31, at 193 (Alexander Hamilton)
(C. Rossiter ed., 1961). In other words, an appropriate
historical inquiry cannot be conducted while blind to the
“reason and spirit” of the law, 1 Blackstone, Commentaries
*61, which provided for its validity and natural purpose.5
Rightly framed, history reveals two principles
informing a consistent tradition. First, because the right to
self-defense is protected by the Second Amendment and
preexists our Founding, laws extensively regulating the types
of firearms a person can possess and the places where
possession is permitted can “eviscerate the general right to
publicly carry arms for self-defense.” Bruen, 597 U.S. at 31;
dissenting) (“The capacity to impart instruction to others is
given by the Almighty for beneficent purposes; and its use may
not be forbidden or interfered with by government,—certainly
not, unless such instruction is, in its nature, harmful to the
public morals or imperils the public safety. . . . The denial of
either right would be an infringement of the liberty inherent in
the freedom secured by the fundamental law.”); Farrington v.
Tokushige, 273 U.S. 284, 299 (1927) (explaining that despite
“grave problems” incident to changing social conditions, the
government cannot infringe on the “fundamental rights of the
individual” that the Fourteenth Amendment was enacted to
protect).
5 “The Founders saw nothing particularly strange, or
insuperable, in the task of appealing to those laws of
reason . . . .” Hadley Arkes, Constitutional Illusions and
Anchoring Truths: The Touchstone of Natural Law 25 (2010).

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7
see also Heller, 554 U.S. at 636. All showing a robust
protection of the right to bear arms by those within the civil
society that can rarely be circumvented by the sovereign.
Second, because “public Virtue is the only Foundation
of Republics,”6 the natural right to self-defense, like all other
natural rights, can be exercised only by “a virtuous people who
were controlled from within by a moral compass” that
“respect[] social order, legitimate authority,” and “civic
virtue.”7 This principle provides the reason for restrictions of
the right to bear arms on those who set themselves against civil
6 Letter from John Adams to Mercy Otis Warren (Apr.
16, 1776); see also Washington’s Farewell Address (Sept. 17,
1796), in 1 A Compilation of Messages and Papers of the
President, 1789–1897, 213, 220 (James D. Richardson ed.,
1896) (“It is substantially true, that virtue or morality is
necessary spring of popular government. The rule indeed
extends with more or less force to every species of free
government.”); Letter from John Adams to Zabdiel Adams
(June 21, 1776) (“[I]t is Religion and Morality alone, which
can establish the Principles upon which Freedom can securely
stand . . . . The only foundation of a free Constitution, is pure
Virtue, and if this cannot be inspired into our People, in a
greater Measure, than they have it now, They may change their
Rulers, and the forms of Government, but they will not obtain
a lasting Liberty.—They will only exchange Tyrants and
Tyrannies.”).
7 Daniel L. Dreisbach, Reading the Bible with the
Founding Fathers 68 (2017); see also John Adams to the
Officers of the First Brigade of the Third Division of the Militia
of Massachusetts (Oct. 11, 1798) (“Our Constitution was made
only for a moral and religious people.”).

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8
society by individual actions inconsistent with the common
good.8 See Rahimi, 144 S. Ct. at 1901 (“[C]ommon sense
suggests [that] [w]hen an individual poses a clear threat of
physical violence to another, the threatening individual may be
disarmed.”); 1 Blackstone, Commentaries *251 (“For civil
liberty, rightly understood, consists in protecting the rights of
individuals by the united force of society; society cannot be
maintained, and of course can exert no protection, without
obedience to some sovereign power; and obedience is an empty
name, if every individual has a right to decide how far he
himself shall obey.”). Regulations concerning what types of
firearms a person may carry and where a person may carry
uniformly apply to everyone. But regulations on who may
carry center on remedying, through punishment, present threats
to the community stemming from individualized conduct. And
rightfully so, because “[t]he object of human punishment”
includes “depriving the offender of the power of doing
mischief” in order to “secure the safety of the community.” The
Unsigned Essays of Supreme Court Justice Joseph Story: Early
American Views of Law 98 (Valerie L. Horowitz ed., 2015)
[hereinafter Essays of Justice Story]. Because it is “the right of
every society to protect its own peace and interests,” necessary
measures may be implemented as “punishment, if the safety of
society requires it.” Id.; see also Thomas Aquinas, Summa
8 This principle is not synonymous with the Justice
Department’s erroneous argument that the Second Amendment
can be exercised only by law-abiding and responsible citizens,
which the Supreme Court rejected in Rahimi. See 144 S. Ct. at
1903 (rejecting “responsible” as too vague a term). As
explained, “responsible” is not defined by the whim of the
sovereign or the will of the majority, but instead flows from the
classical concept of the common good.

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9
Theologica, pt. I-II, q. 96, art. 2 (Fathers of the English
Dominican Province trans., Benzinger Bros. 1947) (“[H]uman
laws do not forbid all vices, from which the virtuous abstain,
but only the more grievous vices, from which it is possible for
the majority to abstain; and chiefly those that are to the hurt of
others, without the prohibition of which human society could
not be maintained.”).9
A.
I begin with a brief examination of the liberty to defend
oneself with arms, a right inherent in natural society that “[t]he
law very wisely, and in a manner silently, gives a man.”
Marcus Tullius Cicero, Speech in Defence of Titus Annius Milo
(c. 52 B.C.), in 3 Orations of Marcus Tullius Cicero 390, 394
(C.D. Yonge trans., 1913). Cicero explained that “if our life be
in danger from plots, or from open violence, or from the
weapons of robbers or enemies, every means of securing our
9 Underexplored in this debate is the role of punishment
in “depriving the offender of the power of doing mischief” in
order to “secure the safety of society.” Essays of Justice Story,
supra, at 98. Moving forward, litigants and scholars alike
should consider the role of government in punishing
individuals who have exhibited dangerous conduct setting
themselves against the general welfare of the community. See
Summa Theologica, supra, pt. I-II, q. 87, art. I (“It has passed
from natural things to human affairs that whenever one thing
rises up against another, it suffers some detriment
therefrom. . . . Consequently, whatever rises up against order,
is put down by that order or by the principle thereof.”); John
Locke, Second Treatise of Government, §§ 87–88 (1690);
Adam Smith, The Theory of Moral Sentiments, pt. II, § 2, ch. 1
(1759).

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10
safety is honorable.” Id. This law of self-defense “is a
law . . . not written, but born with us, —which we have not
learnt, or received by tradition, or read, but which we have
taken and sucked in and imbibed from nature herself; a law
which we were not taught, but to which we were made.” Id.
The Roman empire echoed Cicero’s points “for
centuries to come.” Stephen P. Halbrook, That Every Man Be
Armed 20 (1984). The Lex Cornelia de sicariis of 81 B.C.
stated that carrying weapons was lawful but not carrying a
“sword of vengeance” or “weapons for the purpose of
homicide.” J. Inst. 4.18.5 (J. Moyle trans. 1913). Accordingly,
“whatever a person does for his bodily security he can be held
to have done rightfully.” Dig. 1.1.3 (Florentinus, Institutes 1)
(Alan Watson, trans., 1998). But “rightfully” is the condition
that justifies the action. Dig. 1.1.1 (Ulpian, Institutes 1). “The
basic principles of right are: to live honorably, not to harm any
other person, [and] to render to each his own.” Dig. 1.1.10
(Ulpian, Rules 1) (emphasis added). Thus, “it is a grave wrong
for one human being to encompass the life of another.” Dig.
1.1.3 (Florentinus, Institutes 1).
Centuries later, Thomas Aquinas likewise taught that
the “act [of killing another in self-defense], since one’s
intention is to save one’s own life, is not unlawful, seeing that
it is natural to everything to keep itself in ‘being,’ as far as
possible.” Summa Theologica, supra, pt. II-II, q. 64, art. 7. But
killing a just or innocent is wrong because “the life of the
righteous men preserves and forwards the common good.” Id.
art. 6, resp. Aquinas also noted that the fundamental right to
defense did not extend to tumultuously rising up against the
government in opposition to the “unity and peace of a people.”
Id. q. 42, art. 1. “[S]edition is contrary to the unity of the
multitude.” Id. q. 42, art. 2. Citing to Augustine, Aquinas

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11
defines “sedition” as being against “the assembly of those who
are united together in fellowship recognized by law and for the
common good,” making “sedition . . . opposed to justice and
the common good.” Id.; see also 2 St. Augustine, City of God,
Book II, ch. 21, at 75–76 (Marcus Dods, ed. & trans.,
Edinburgh, Murray & Gibb 1871) (defining “the people” as
“being not every assemblage or mob, but an assemblage
associated by a common acknowledgment of law, and by a
community of interests”). But “[t]hose, however, who defend
the common good, and withstand the seditious party, are not
themselves seditious, even as neither is a man to be called
quarrelsome because he defends himself.” Summa Theologica,
supra, pt. II-II, q. 42, art. 2.10
These elementary sources teach that persons have a
fundamental right to use arms to preserve innocent human life.
But this liberty cannot be used harm another human life, or to
rebel against a just government. Taken together, these
principles instruct that the natural right of self-preservation
does not extend to bearing arms in a manner that undermines
the common good.
10 This principle does not criminalize individuals of the
community from uprising against a tyrannical government. A
“tyrannical government is not just, because it is directed, not to
the common good, but to the private good of the ruler.” Summa
Theologica, supra, pt. II-II, q. 42, art. 2. So “there is no sedition
in disturbing a government of this kind.” Id.; see also
McWilliam, supra, at 154 (“Resistance to an unjust ruler is also
an application of the ius naturale principle of
self-defense. . . . As such, the natural law has a deep
condemnation for unjust rulers who act for their own private
good rather than for the common good and justice of all.”).

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12
B.
English practices applied and developed these
principles. Blackstone pointed out that the right of all
Englishmen to “hav[e] arms for [one’s] defence” is rooted in
“the natural right of resistance and self-preservation.” 1
Blackstone, Commentaries *143–44.11 It was a “birthright,” 1
Blackstone, Commentaries *140, that “appertain[ed] to every
Englishmen,” id. at *136, an “ancient right[] and libert[y],”
later codified by Parliament in the English Bill of Rights in
1689, see Bill of Rights, 1 W. & M. Sess. 2 c. 2 (“[S]ubjects
which are Protestants may have arms for their defence suitable
to their conditions and as allowed by law.”). John Locke
echoed similar points, explaining that “by the fundamental law
of nature . . . one may destroy a man who makes war upon
him . . . for the same reason that he may kill a wolf or a lion;
because such men are not under the ties of the common law of
reason, have no other rule, but that of force and violence.” John
Locke, Second Treatise of Government, § 16 (1690). This
11 See also William Blizard, Desultory Reflect on
Police: With an Essay on the Means of Preventing Crimes and
Amending Criminals 59–60 (London, 1785) (“The right of his
majesty’s Protestant subjects, to have arms for their own
defence, and to use them for lawful purposes, is most clear and
undeniable. It seems, indeed, to be considered, by the ancient
laws of this kingdom . . . . [This right is] most
unquestionabl[e] . . . [and] most clearly established by the
authority of judicial decisions and ancient acts of parliament,
as well as by reason and common sense.”); 3 Blackstone,
Commentaries *3–4 (“Self-defence, therefore, as it is justly
called the primary law of nature, so it is not, neither can it be
in fact, taken away by the law of society.”).

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13
comports with reason that “man [must] be preserved as much
as possible,” but “when all cannot be preserved, the safety of
the innocent is to be preferred.” Id.
But English history reflects the ancient prohibition on
men exercising their fundamental rights to intentionally harm
the life or safety of another, or to rebel against a just
government.
1. For example, kings prohibited using arms against the
community, with violators subject to disarmament. Alfred the
Great proscribed violent acts with arms.12 The Statute of
Northampton, 2 Edw. 3, c. 3, followed in 1328 to address the
dangers from “[b]ands of malefactors, knights as well as those
of lesser degree,” that “harried the country, committing
assaults and murders,” and the resulting “spirit of
insubordination.” K. Vickers, England in the Later Middle
Ages 107 (C. Oman ed., 4th ed. 1926); see also Edward Coke,
The Third Part of the Institutes of the Laws of England 160
(London, M. Flesher 1644) (“For in those daies this deed of
Chivalry was at random, whereupon great perill ensued . . . .”).
To enforce the Statute, Edward III ordered sheriffs to
investigate “the malefactors who have made assemblies of
men-at-arms or have ridden or gone armed in his bailiwick,
contrary to the statute and the king’s proclamation.” Letter to
12 See The Laws of King Alfred the Great §§ 7, 19, 38
(c. 878), reprinted in 3 The Whole Works of King Alfred the
Great 119, 127, 129, 133 (Oxford, Messrs J.F. Smith & Co.
1852) (prohibiting “fight[ing]” or “draw[ing] out his weapon”
in the “king’s hall,” “lend[ing] [one’s] weapon to another,”
with the intent that the borrower would “slay a man with it,”
use, by “a sword-whetter,” of another’s weapon to commit a
crime, and “disturb[ing] the folk-mote with weapon drawing”).

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14
Keeper and Justices of Northumbridge (Oct. 28, 1332),
reprinted in 2 Calendar of the Close Rolls, Edward III,
1330–1333 610 (H.C. Maxwell Lyte ed., London, Eyre &
Spottswood 1898). The Statute allowed the sovereign to
“punish people who go armed to terrify the King’s subjects.”
Sir John Knight’s Case (1686) 87 Eng. Rep. 75, 76; 3 Mod.
117, 118 (KB). That was “likewise a great offence at the
common law, as if the King were not able or willing to protect
his subjects.” Id. The Statute of Northampton thus followed the
path of the classical law, demonstrating the right to carry arms
could not license a right to cause public terror. See Bruen, 597
U.S. at 45–46; United States v. Williams, 113 F.4th 637, 650
(6th Cir. 2024); Kanter v. Barr, 919 F.3d 437, 456–57 (7th Cir.
2019) (Barret, J. dissenting), abrogated by Bruen, 597 U.S. at
70–71.
But the Statute did not displace the right of using arms
for self-defense and continued the understanding that an
individual “may not onely use force and armes” but also
“assemble his friends and neighbors to keep his house against
those that come to rob, or kill him, or to offer him violence.”
The Third Part of the Institutes of the Laws of England, at
161–62. Use of force to oppose unlawful force is “by
construction excepted out of this [Statute]” because the laws
permit the taking up of arms against armed persons. Id. at 162
(“Armaque in Armatos sumere jura sinunt.”). As a result,
individuals with the “intent to defend themselves against their
adversaries, are not within the meaning of this Statute, because
they do nothing in terrorem populi.” 2 William Hawkins, A
Treatise of the Pleas of the Crown ch. 63, § 9, at 22 (7th ed.
1795).
Along with prohibiting affrays, the English surety
system dating back to the Saxons also grounded the right to

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15
bear arms. See 4 Blackstone, Commentaries *252. Though
initially in the form of “decennaries or frank pledges” where
the community mutually promised for a person’s good
behavior, surety laws later converted into an individual offer
of security guaranteeing their own good behavior. Id.; see also
Rahimi, 144 S. Ct. 1899–1900. Under this system, “[a]ny
justices of the peace” could demand a surety “according to their
own discretion” or at the request of another provided “due
cause [was] shown.” 4 Blackstone, Commentaries *253.
Sureties were used to prevent two distinct types of future harm
by keeping the peace and ensuring good behavior. Id. at *251,
254–56. Sureties complemented recognizances,13 and “[a]ny
justice of the peace” could “bind all those to keep the peace[,]
who in his presence make any affray, or threaten to kill or beat
another, or contend together with hot and angry words, or go
about with unusual weapons or attendance, to the terror of the
people.” Id. at *254. Similarly, an individual could demand a
surety from another when he “hath just cause to fear” that
13 Recognizances for good behavior included “security
for the peace,” but also covered “somewhat more.” 4
Blackstone, Commentaries *256. Justices of the peace were
empowered “to bind over to the good behaviour towards the
king and his people” all individuals “that be not of good fame.”
Id. The general phrase “not of good fame,” described men that
acted “contra bonos mores,” meaning against good morals, or
“contra pacem” meaning against the peace. Id.; see id.
(elaborating that this phrase applied to men who kept the
company of “women of bad fame,” those who “tend[] to
scandalize the government,” those who “abuse the officers of
justice,” “common drunkards,” or “eaves-droppers”). All
showing the moral basis for regulation to preserve the common
good.

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16
another in the community would “do him a corporal injury, by
killing, imprisoning[,] or beating him.” Id. at *255.
Accordingly, regardless of whether surety laws serve as
proper historical evidence supporting disarmament before an
individualized conviction of a violent crime, see Rahimi, 144
S. Ct. at 1938–42 (Thomas, J., dissenting), the surety system
illustrates the long-standing idea that liberty cannot be used for
lawless violence, consistent with the natural law principles
prohibiting individuals from exercising their right to bear arms
to tarnish the shared life or dignity of the community.
2. English law also curtailed the right to bear arms of
individuals suspected of treason or sedition against the
sovereign. The Militia Act of 1662 authorized officers of the
Crown to disarm any individual that either a Lieutenant or two
or more Deputies “judge[d] dangerous to the Peace of the
Kingdome,” to “[s]ecure the Peace of the Kindgome.” City of
London Militia Act 1662, 14 Car. 2, c. 3, § 13. In practice, the
law was used to confiscate arms from anyone threatening the
absolute rule of King Charles II. See Stephen P. Halbrook, The
Right to Bear Arms: A Constitutional Right of the People or a
Privilege of the Ruling Class? 35–36, 60–61 (2021).
Similarly, the Game Act of 1670 imposed a property
requirement for gun ownership, and effectively disarmed most
commoners. 22 & 23 Car. 2, c. 25 (1670); The Right to Bear
Arms, supra, at 36. As Blackstone explains, “prevention of
popular insurrections and resistance to the government, by
disarming the bulk of the people . . . is a reason oftener meant
than avowed by the makers of forest or game laws.” 2
Blackstone, Commentaries *412. And both laws were often
used to disarm persons presumed disloyal, including
Protestants under Charles II and James II. That Every Man Be

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17
Armed, supra, at 43; see The Somers Papers, in 2
Miscellaneous State Papers from 1501–1726 at 407, 417–18
(W. Strahan and T. Cadell 1778).
But arbitrary use of this power left James II exiled,
William and Mary on the throne, and Catholics disarmed under
Protestant rule. See 1 W. & M. c. 15, § 4 (1688) (requiring all
Catholics and presumed Catholics to swear loyalty to the
Crown or forfeit their arms); see also The Right to Bear Arms,
supra, at 60; Bill of Rights, 1 W. & M. Sess. 2 c. 2, § 7 (1689)
(codifying that only Protestants may have arms for
self-defense). Under the reign of William and Mary, there was
“cause to fear that a person, although technically an English
subject, was because of his beliefs effectively a resident enemy
alien liable to violence against the king.” See C. Kevin
Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv.
J.L. & Pub. Pol’y 695, 723 (2009). Any such violence was
considered treason because it would “affect the supreme
executive power,” “amount[ing] either to a total renunciation
of that allegiance, or at the least a criminal neglect of that duty,
which is due from every subject to his sovereign.”
4 Blackstone, Commentaries *75. As a result, “being Roman
Catholic was equated with supporting James II and thus with
presumptive treason.” Marshall, 32 Harv. J.L. & Pub. Pol’y at
721. This is because Roman Catholics essentially
“acknowledge[d] a foreign power, superior to the sovereignty
of the kingdom,” and thus they “[could not] complain if the
laws of that kingdom [did] not treat them upon the footing of
good subjects.” 4 Blackstone, Commentaries *55. But despite
this presumption, disarmament did not occur until an
individual declined to swear an oath of loyalty to the Protestant
king. Id. at 722–23. And even upon such refusal, an individual
could still keep “necessary [w]eapons . . . for the defence of his

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18
House or person.” 1 W. & M. c. 15, § 3 (1688); see also Joyce
Lee Malcolm, To Keep And Bear Arms 122–23 (1994) (“They
assumed that everyone had a right to own firearms unless he
could be conclusively convicted of Catholicism. Even in this
time of danger, Catholics were considered to have a right to
own arms for their personal defence and the defence of their
households.”). This historical strife between Catholics and
Protestants reveals a fundamental principle about the right to
have arms for self-defense: the king could disarm classes of
people who posed true risk of sedition or treason to the
sovereign. 14
* * *
In sum, as reflected in the English Bill of Rights,
bearing arms for self-defense was a fundamental right,
originating from the laws of nature. But that right was
restricted by laws prohibiting the use of arms to intentionally
cause terror or harm to members of the community. And
government could disarm classes of people that posed an actual
risk of sedition or treason. These traditions follow the classical
14 Notably, groups that were disarmed as dangerous by
posing risk of sedition or treason differed from individuals
viewed as dangerous by causing intentional physical harm to
another. Rather than posing harms directly to the subjects of
the King, groups likely to revolt against the King posed a threat
to the Order of the King. See 4 Blackstone, Commentaries
*81–82 (“[T]reason” and “insurrection” amount to “a rebellion
against the state, an usurpation of the powers of government,
and an insolent invasion of the king’s authority.”). But “riot[s]”
or crimes imagined to a neighbor’s land, home, or life were
considered “no high treason” because they amount to “no
general defiance of the public government.” Id. at *82.

-- 43 of 164 --

19
principles of self-preservation, disallowance of public harm,
and the elementary view that because government exists for the
common good of the community, it may defend its own
existence.
C.
These principles are reflected in our Founding and the
Second Amendment, exhibiting respect for the fundamental
right to bear arms and its natural limitation that one must not
use that liberty to subvert the common good.
Spanning from the colonial generation to the Founders,
history reveals that bearing arms for self-defense is rooted in
the natural law.15 Recounting British history, Samuel Adams
noted that James II disregarded the “natural, inherent,
divinely[,] hereditary[,] and indefeasible rights of [his]
subjects,” but praised the English constitution for restoring the
country’s “original principles” and noted that the “bill of
rights” “stands as a bulwark to the natural rights of subjects.”
Samuel Adams, Boston Gazette, Feb. 27, 1769, at 3, col. 1. The
natural right of self-defense was the core of John Adams’s
defense of the soldiers on trial for the Boston Massacre,
contending that “every private person is authorized to arm
himself, and on the strength of this authority, [he did] not deny
the inhabitants had a right to arm themselves at that time, for
their defence, not for offence.” 3 Legal Papers of John Adams
15 This truth is not a historic relic. Today, still
recognizing that certain rights predate government, “35 state
constitutions expressly declare that rights are inherent or
natural.” Nicholas J. Johnson et al., Firearms Law and the
Second Amendment: Regulation, Rights, and Policy 316
(Rachel E. Barkow et al., 3d ed. 2022).

-- 44 of 164 --

20
248 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965); see also
id. at 245 (“The rules of the common law therefore, which
authorize a man to preserve his own life at the expence of
another’s, are not contradicted by any divine or moral law.”).
Adams explained that the right of self-preservation “is not only
our indisputable right, but our clearest duty, by the laws of
nature, this is interwoven in the heart of every individual.” Id.
at 244.
These principles influenced colonial America’s
collective declaration of independence from Great Britain.16
16 See Simeon Howard, A Sermon Preached to the
Ancient and Honorable Artillery Company in Boston (June 7,
1773), in 1 American Political Writing During the Founding
Era, 1760–1805 186, 201–02 (Charles S. Hyneman & Donald
S. Lutz eds., 1983) (“Men are bound to preserve their own
lives, as long as they can, consistently with their duty in other
respects” and are “bound both by the law of nature and
revelation, to provide in the best manner [they] can, for the
temporal happiness of [their] famil[ies]. . . . It is therefore an
act of benevolence to oppose and destroy that power which is
employed in injuring others; and as much, when it is that of a
tyrant, as of a wild beast.”); Thomas Paine, The Crisis I: These
Are the Times that Try Men’s Souls (Dec. 23, 1776), reprinted
in 1 The Complete Writings of Thomas Paine at 50, 55–56
(Phillip S. Foner, ed., 1945) (“[I]f a thief breaks into my house,
burns and destroys my property, and kills or threatens to kill
me, or those that are in it, and to ‘bind me in all cases
whatsoever’ to his absolute will, am I to suffer it? What
signifies it to me, whether he who does it is a king or a common
man; my countryman or not my countryman; whether it be
done by an individual villain, or an army of them?”).

-- 45 of 164 --

21
Following the Revolution, several states recognized a right to
bear arms for self-defense rooted in the natural law. See The
Right to Bear Arms, supra, at 147–52 (detailing the specific
protections in Virginia, Pennsylvania, North Carolina,
Vermont, and Massachusetts declarations of rights); Nicholas
J. Johnson et al., Firearms Law and the Second Amendment:
Regulation, Rights, and Policy 309–17 (Rachel E. Barkow et
al., 3d ed. 2022) (same). So too with the Second Amendment,
which was “considered as the true palladium of liberty”
because “[t]he right of self defence is the first law of nature.”
1 Blackstone, Commentaries, app. at 300 (St. George Tucker
ed., 1803).
At the core of early America’s robust regard of the right
to bear arms was “the great natural law of self-preservation”
that gives rise to the necessity “for the defence of one’s person
or house.” Collected Works of James Wilson 1142 (discussing
the principles behind the Pennsylvania Constitution’s
protection of the right to bear arms that date back to the Saxon
era, where individuals “were bound” “to keep arms for the
preservation of the kingdom, and of their own persons”).
Affirming what reason suggests, American law holds that “a
man has a perfect right to his life, to his personal liberty, and
to his property,” thereby permitting a man “by force [to] assert
and vindicate those rights against every aggressor.” Essays of
Justice Story, supra, at 262. But the right to possess arms for
self-preservation has long been regulated to prohibit violence
against the people, and violence against the State—the same
the two limitations found in English history, and the classical
tradition.
1. Laws prohibiting use of arms to cause terror to
members of the community date back to colonial America. In
1736, a Justice of the Peace in Virginia provided that it is the

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22
duty of “[e]very constable, as a Minister of the Justice,” to
“take away Arms from such who ride, or go, offensively
armed, in Terror of the People, and may apprehend the Persons,
and carry them, and their Arms, before a Justice of Peace.”
George Webb, The Office and Authority of a Justice of Peace
92–93 (Williamsburg, William Parks 1736). Justices of the
Peace in New Hampshire were instructed to do the same.17 If
“legal proof of any such offence” was presented, the justice
was permitted to “commit him to prison” and “cause his arms
or weapons to be taken away.” Acts and Laws of His Majesty’s
Province of New Hampshire ch. 11 § 5 (1771). And colonial
Massachusetts similarly prohibited “rid[ing] or go[ing] armed
Offensively.” Mass. Province Laws ch. 18, § 6 (1692).
These laws, which essentially copied the Statute of
Northampton, carried over into Founding-era America.18 Like
17 See Acts and Laws of His Majesty’s Province of New
Hampshire ch. 11 § 5 (1771) (“[E]very justice of the peace
within this province, may cause to be stayed and arrested all
affrayers, rioters, disturbers or breakers of the peace, or any
other that shall go armed offensively, to put his majesty’s
subjects in fear by threat[e]ning speeches.”).
18 For example, Virginia enacted a near duplicate of the
Statute: “No man, great nor small, of what condition soever he
be . . . go nor ride armed by night nor by day, in fair or markets,
or in other places, in terror of the county.” A Collection of All
Such Acts of the General Assembly of Virginia at 33 (Virginia,
Augustine Davis 1794). So too did North Carolina. See A
Collection of Statutes of the Parliament of England in Force in
the State of North Carolina 60–61 (New Bern, Francois-Xavier
Martin 1792) (“[N]o man great nor small, of what condition
soever he be, . . . [shall] bring no force in affray of peace, nor

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23
the original, these statutes prohibited persons from going
armed to commit affrays or cause terror to the community.19
The English surety regime also persisted, allowing temporary
disarmament for violations. Rahimi, 144 S. Ct. at 1900–01. All
consistent with the traditional principle that the right to bear
arms for self-defense must not be abused to physically harm
members of the community.
2. Laws addressing danger to the State focused on
groups viewed as disloyal to the government. Take Beacon’s
Rebellion in 1676, when the rebels in James City County were
temporarily disarmed. See The Right to Bear Arms, supra, at
111–13; id. at 113 (“The restraint was only during the
rebellion. Now every man may bear arms.”). And during the
French and Indian War, Catholics who refused to swear an oath
of undivided allegiance were prohibited from possessing “in
his house or elsewhere” any “arms, weapons, gunpowder[,] or
to go nor ride armed by night nor by day, in fairs, markets nor
in the presence of the King’s Justices, or other ministers, nor
in no part elsewhere.”). The District of Columbia seemingly
proposed similar draft legislation, although it is unclear
whether that draft legislation ever carried force of law. See
Code of Laws for the District of Columbia: Prepared Under
the Authority of The Act of Congress of the 29th of April, 1816
253–54 (Washington, Davis & Force 1818).
19 Because affrays were considered “crimes against the
personal safety of the citizens,” Collected Works of James
Wilson 1138, as a penalty, individuals had to forfeit their
armour to the government. See Essays of Justice Story, supra,
at 97 (“The right of society to punish offences against its safety
and good order will scarcely be doubted by any considerate
person.”).

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24
ammunition.” 7 William Waller Hening, The Statutes at Large;
Being a Collection of all the Laws of Virginia 36–37
(Richmond, Franklin Press 1820).20 Why? Because “Protestant
colonial governments feared that loyalty to the Pope would
cause Catholics to take up arms for France.” United States v.
Jackson, 85 F.4th 468, 471 (8th Cir. 2023) (Stras, J., dissenting
from denial of rehearing en banc).
Unsurprisingly, the Revolutionary War led to
widespread disarmament of loyalists. See Joseph G.S.
Greenlee, Disarming the Dangerous: The American Tradition
of Firearm Prohibitions, 16 Drexel L. Rev. 1, 61–63 (2024)
(detailing eight orders and laws disarming loyalists to
“suppress[]” “enemies to American Liberty,” one of which was
issued by George Washington). In New York, “any person or
persons” convicted of “having furnished the ministerial army
or navy . . . with provisions or other necessaries . . . shall be
disarmed.” Resolutions of September 1, 1775, reprinted in 1
Journals of the Provincial Congress, Provincial Convention,
Committee of Safety and Council of Safety of the State of New
York 131, 132 (Albany, Thurlow Weed 1842). South Carolina
prohibited any person from “bear[ing] arms against” or
20 See also Robert H. Churchill, Gun Regulation, the
Police Power, and the Right to Keep Arms in Early America:
The Legal Context of the Second Amendment, 25 L. & Hist.
Rev. 139, 157 (2007) (explaining that colonial Virginia “acted
to disarm Catholics” “not on the basis of faith” but on “the
basis of allegiance”); Johnson et al., supra, at 197
(summarizing Maryland laws that forbid possession of
firearms and ammunition by “Marylanders who refused to
swear loyalty to King George III” and legislation passed by the
lower house to disarm any “Papist within [the] Province”).

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25
“opposing the measures of the Continental or Colony
Congress,” punishable by disarmament. Resolutions of March
13, 1776, reprinted in Journal of the Provincial Congress of
South Carolina, 1776 77, 77 (London, J. Almon 1776). And
Massachusetts disarmed any person convicted of “being
notoriously inimical to the cause of American Liberty.”
Resolutions of July 25 and July 26, 1776, reprinted in 1
American Archives: Fifth Series 588, 588 (Peter Force ed.,
1848). All show that those who committed the specific offense
of sedition or treason could be disarmed for a time.
3. Practices around the Founding reflect principles that
allowed disarmament of individuals who endangered the
community by physically harming another, and of individuals
who exhibited dangerousness by seeking to overthrow the
government. The Second Amendment’s ratification process
exhibits both the distinctiveness and enduring nature of these
two principles. At their state ratifying conventions,
Massachusetts, New Hampshire, and Pennsylvania each
proposed limiting language to the Second Amendment
arguably tied to dangerousness. See Kanter, 919 F.3d at 454
(Barret, J., dissenting) (noting that “each of these proposals
included limiting language arguably tied to criminality”).21
Language proposed in Pennsylvania and Massachusetts
reflects that those who breached the peace were proscribed
from bearing arms. In Massachusetts, Samuel Adams drafted
the following proposed amendment, “[T]hat the said
Constitution be never construed to authorize Congress . . . to
21 These proposed amendments are part of “[t]he best-
available-evidence” of “the practice in the early Republic.” Lee
J. Strang, Originalism’s Promise: A Natural Law Account of
the American Constitution 69 (2019).

-- 50 of 164 --

26
prevent the people of the United States, who are peaceable
citizens, from keeping their own arms.” Massachusetts
Convention Journal (Feb. 6, 1788), reprinted in 6 The
Documentary History of the Ratification of the Constitution
1452, 1453 (John P. Kaminski et al. eds., 2000) (emphasis
added). “Peaceable citizens” were those who did not commit a
“breach of the peace,” meaning those who did not
“violat[e] . . . the public peace, as by a riot, affray, or any
tumult which is contrary to law, and destructive to the public
tranquility.” Breach, in 1 Noah Webster, An American
Dictionary of the English Language (New York, S. Converse
1828). And in Pennsylvania, twenty-one of the twenty-three
members who voted against ratification proposed the following
amendment: “That the people have a right to bear arms for the
defense of themselves and their own state, or the United States,
or for the purpose of killing game; and no law shall be passed
for disarming the people or any of them, unless for crimes
committed, or real danger of public injury from individuals.”
The Address and Reasons of Dissent of the Minority of the
Convention of the State of Pennsylvania to their Constituents
(Dec. 18, 1787), reprinted in 2 The Documentary History of
the Ratification of the Constitution 618, 623–24 (Merrill
Jensen et al. eds., 1976) (emphasis added). The natural reading
of these proposals is that “crimes committed” concern acts
posing a “real danger of public injury.” Kanter, 919 F.3d at 456
(Barrett, J., dissenting). This reading accords with the natural
law principle against taking innocent life that informs
American firearm regulations.
In contrast, the language proposed by New Hampshire
restricted the right to bear arms to those who had not engaged
in rebellion: “Congress shall never disarm any Citizen, unless
such as are or have been in actual Rebellion.” New Hampshire

-- 51 of 164 --

27
Form of Ratification (June 21, 1788), reprinted in 28 The
Documentary History of the Ratification of the Constitution
376, 378 (John P. Kaminski et al. eds., 2017) (emphasis
added). Citizens who “are or have been in actual Rebellion” is
not synonymous with all felons or criminals. This proposal
targets individuals who committed the distinct crime of
rebellion, which means “taking up Arms against the Supreme
Power.” Rebellion, New Universal Etymological English
Dictionary (20th ed. 1763). But New Hampshire’s proposal
“does not say anything about disarming those who have
committed other crimes, much less nonviolent ones.” Kanter,
919 F.3d at 455 (Barrett, J., dissenting).
4. At least two distinct principles run continuous
throughout history from Cicero to Founding-era America.
First, the right to bear arms is not a license to physically harm
another. Second, an individual cannot exercise that right to
rebel against a just government ordered for the common good.
Penalty for acting adverse to either principle often amounted
to disarmament.22 These principles are the hallmark of our
Nation’s firearm regulations.
22 But such disarmament was not absolute, and I echo
Judge Roth’s call for greater executive review of petitions to
restore firearm rights, regardless of whether Congress provides
funding for 18 U.S.C. § 925(c). See Concurring Op. at 11 n.18;
see also Cross v. Buschman, No. 22-3194, 2024 WL 3292756,
at *5 (3d Cir. July 3, 2024) (Matey, J., concurring) (“The
Eighth Amendment binds all federal actors, and the President
has a duty to ensure his subordinates comply with the
Amendment’s demands.”). That is because “the President
holds an independent duty to ensure that the Constitution’s
guarantees are followed.” Cross, 2024 WL 3292756, at *5

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28
Many reasonable minds read this history to support a
different answer, and only one broad principle: the legislature
can categorically disarm anyone labeled “dangerous.”23 But
that is too vague a conception of “dangerousness.” True, both
ideas contain types of dangerous individuals, and both center
on classifications designed, or at least recognized, by
government. But the type of danger posed, and the punishment
prescribed, makes the difference. Laws imposing class wide
disarmament were enacted during times of war or civil strife
(citing Gary Lawson & Christopher D. Moore, The Executive
Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267,
1287 (1996) (“Once the President has interpreted the law that
he has the power to enforce or execute, a second interpretative
stage emerges: the President must then determine whether the
law is consistent with the Constitution. The President, no less
than Congress or the courts, operates under the Constitution as
supreme positive law . . . . The need to interpret the
Constitution as a source of positive law, and to prefer the
Constitution to any other source of law with which it may
conflict, is as much a part of ‘[t]he executive Power’ vested in
the President as it is part of ‘[t]he judicial Power’ vested in the
federal courts. The Constitution is law, and the executive
power of law interpretation includes the power and duty to
interpret the Constitution.”)). All to say, it is time to examine
the Attorney General’s independent obligation to review these
petitions, as well as the propriety of continuing to delegate this
responsibility to the Justice Department’s Bureau of Alcohol,
Tobacco, Firearms and Explosives when that agency has been
thwarted from carrying out its duty.
23 See Williams, 113 F.4th at 656–57; United States v.
Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024); see also
Dissenting Op. at 6–8, 8 n.8.

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29
where separate sovereigns competed for loyalty. See Jackson,
85 F.4th at 472 (Stras, J., dissenting from denial of rehearing
en banc) (“[T]he decades surrounding the ratification of the
Second Amendment showed a steady and consistent practice.
People considered dangerous lost their arms. But being a
criminal had little to do with it.”). And laws disarming an
individual for dangerous conduct harming another member of
the community centered on individualized review of specific
acts.24 Combining these principles to reach a higher level of
generality discounts the history and, most importantly,
disregards the natural law principles explaining why we
possess the right to bear arms.
D.
We have wandered far from the reason and spirit of the
Second Amendment. The first federal ban on felons possessing
firearms arrived one hundred and forty-seven years after the
24 In theory, the implications of both principles may not
be as siloed when assessing a facial challenge to § 922(g)(1).
For example, there are many individuals convicted of felonies
for sedition or murder, which could show that § 922(g)(1) may
not be unconstitutional in all contexts. See United States v.
Salerno, 481 U.S. 739, 745 (1987) (explaining that in a “facial
challenge to a legislative Act . . . the challenger must establish
that no set of circumstances exists under which the Act would
be valid”). But that is not the case here because Range asserts
an as-applied challenge. See United States v. Marcavage, 609
F.3d 264, 273 (3d Cir. 2010) (“An as-applied attack, in
contrast, does not contend that a law is unconstitutional as
written[,] but [rather] that its application to a particular person
under particular circumstances deprived that person of a
constitutional right.”).

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30
Amendment’s ratification. The Federal Firearms Act,
§ 922(g)(1)’s predecessor, prohibited any individual convicted
of a “crime of violence” to possess a firearm or ammunition.
An Act to Regulate Commerce in Firearms, ch. 850, § 2(f), 52
Stat. 1250, 1251 (1938). Congress defined a “crime of
violence” as “murder, manslaughter, rape, mayhem,
kidnapping, burglary, housebreaking[,] assault with intent to
kill, commit rape, or rob[,] assault with a dangerous weapon,
or assault with intent to commit any offense publishable by
imprisonment for more than one year.” Id. § 1(6). Disarming
individuals who exhibited that conduct made sense because
they engaged in conduct that harmed the physical safety of
individuals in the community. But twenty-three years later,
Congress swept in all felonies, not just crimes of violence, see
An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-
342 § 2, 75 Stat. 757, 757 (1961), thus abandoning reason,
which permitted disarmament of individuals to protect the
safety of the community or the existence of the government.
That hollowed place is where the enacted law remains today.
Such a law cannot be applied to Range who does not
exhibit behavior intentionally threatening the life or safety of
another. And there is no suggestion that Range threatens the
government’s existence with sedition or treason. So disarming
him is unnecessary to ensure the physical safety of the
community, or the continuity of government. See McWilliam,
supra, at 158 (“[O]ne must ask not only whether the statute
comports with the broader ius naturale principles, but also with
the general principles specifically determined within the
Second Amendment.”).
Because the majority correctly concludes that
§ 922(g)(1)’s application to Range is repugnant to the

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31
fundamental principles captured by the Second Amendment, I
concur.

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1
PHIPPS, Circuit Judge, concurring.
I join the Majority Opinion in full because this case may be
resolved on narrow grounds: there is no historical analogue for
permanently disarming a citizen based on a prior conviction for
food-stamp fraud.1 I write separately to point out additional
important “principles that underpin our regulatory tradition,”2
specifically those related to the liberties of a free people.
Application of these principles lends further support to the
outcome in this case and in future cases will balance and
safeguard the legal analysis so that it does not skew in favor of
disarmament.
Appreciation of these principles begins with a recognition
that the Founders were practical, prudent, and well-read.3 They
1 See N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 30
(2022) (“[W]hether modern and historical regulations impose
a comparable burden on the right of armed self-defense and
whether that burden is comparably justified are central
considerations when engaging in an analogical inquiry.”
(internal quotation marks omitted) (quoting McDonald v. City
of Chicago, 561 U.S. 742, 767 (2010))).
2 United States v. Rahimi, 602 U.S. 680, 692 (2024).
3 See Carl J. Richard, The Founders and the Classics: Greece,
Rome, and the American Enlightenment 53–168 (1994)
(detailing how the Founders used Roman and Greek history
and political thought to guide their critique of Britain and
design of America); id. at 118 (“Ancient history provided the
founders with a large body of information, knowledge which
they used both to make sense of the confusing events of their
day and to construct arguments for their political positions.”);
Donald S. Lutz, The Relative Influence of European Writers on
Late Eighteenth-Century American Political Thought, 78 Am.
Pol. Sci. Rev. 189, 192–95 (1984) (detailing the Founders’
fluency in Montesquieu, Blackstone, Locke, Hume, and
Beccaria, as well as Plutarch, Cicero, Livy, Tacitus, and Plato).

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2
fled from and rebelled against a nation that took away the right
to keep and bear arms4 and that used its military to occupy
4 See Joyce Lee Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right 23–134 (1997) (tracing
English republicans’ disarming of Royalist sympathizers and
Catholics; the restored Royalists’ disarming of republicans and
the “disaffected”; the aristocracy’s disarming of commoners
with game laws enforceable by the aristocrats themselves; and
the renewed disarming of Catholics by a Protestant king and
then Protestants by a Catholic king, until the right was affirmed
in 1689); Stephen P. Halbrook, The Founders’ Second
Amendment: Origins of the Right to Bear Arms 9–74 (2008)
(detailing British attempts to disarm Colonists from the late
1760s, and the resistance up and down the colonies, until the
outbreak of hostilities); 1 James Burgh, Political
Disquisitions; or, An Enquiry into Public Errors, Defects, and
Abuses 464 (1775) (“A general exercise of the best of their
people in the use of arms, was the only bulwark of their
liberties.”); Leonard W. Levy, Origins of the Bill of Rights 138
(1999) (opining that Burgh’s Political Disquisitions “was
probably more influential in America than John Locke’s
work”); A Declaration by the Representatives of the United
Colonies of North America, Now Met in General Congress at
Philadelphia, Setting Forth the Causes and Necessity of Their
Taking Up Arms, reprinted in 37 Documentary History of the
Ratification of the Constitution and the Bill of Rights 49 (John
P. Kaminski et al. eds., 2020) (complaining to King George III,
alongside the last-ditch Olive Branch Petition, that Colonists
had “delivered up their arms” to be later returned, yet “the
Governor [of Massachusetts] ordered the arms . . . to be seized
by a body of soldiers”); id. at 46 (“Our forefathers, inhabitants
of the island of Great Britain, left their native land, to seek on
these shores a residence for civil and religious freedom.”);
St. George Tucker, 1 Blackstone’s Commentaries app. 300
(1803) (“In England, . . . the right of bearing arms is confined
to [P]rotestants, and the words suitable to their condition and

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3
several American cities.5 The Founders wished to enshrine
that right in the core organic document of this Nation – our
Constitution.6 Of course, the Founders knew that firearms
were dangerous and capable of abuse. But an individual right
to keep and bear arms7 promotes self-defense and protects
degree, have been interpreted to authorize the prohibition of
keeping a gun . . . [s]o that not one man in five hundred can
keep a gun in his house without being subject to a penalty.”).
5 See generally Donald F. Johnson, Occupied America: British
Military Rule and the Experience of Revolution (2023)
(detailing British military occupations of Boston, New York,
Newport, Philadelphia, Charleston, and Savannah, and those
occupations’ catalyst effect upon revolutionary sentiment); see
also BOSTON, March 12., Bos. Gazette, Mar. 12, 1770, at 3
(counting three dead and eight wounded at the Boston
Massacre); L. Kinvin Wroth & Hiller B. Zobel, The Boston
Massacre Trials, 55 A.B.A. J. 329, 329 (1969) (reporting that
two of the wounded succumbed to their injuries, bringing the
death total to five).
6 See U.S. Const. amend. II; see also 3 Joseph Story,
Commentaries on the Constitution §§ 1890–91 (1833),
reprinted in 5 The Founders’ Constitution, supra, at 214 (“The
right of the citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of a republic; since
it offers a strong moral check against the usurpation and
arbitrary power of rulers; . . . it is at present in England more
nominal then real, as a defensive privilege.”); William Rawle,
A View of the Constitution of the United States 125–26 (2d ed.
1829), reprinted in 5 The Founders’ Constitution, supra, at
214 (Philip B. Kurland & Ralph Lerner eds., 1987) (“No clause
in the Constitution could by any rule of construction be
conceived to give to congress a power to disarm the
people . . . .”).
7 See District of Columbia v. Heller, 554 U.S. 570, 595 (2008)
(“There seems to us no doubt, on the basis of both text and

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4
against anarchy, rebellion, and foreign invasion.8 And so, the
right was sewn into our Nation’s founding fabric, with the
enemies of this Country and our individual liberties being the
ones who had most opposed it.9
It is against these principles – deeply against them – to flog
the historical record until it suggests some analogue or
principle justifying disarmament, no matter how abstracted,
attenuated, or ahistorical that analogue or principle may be. In
particular, it is a mistake to read the Second Amendment as
permitting the most extreme forms of disarmament in the
history of England and colonial America. While the Founders
adopted many venerable English legal principles and
traditions, such as those developed at common law and in
history, that the Second Amendment conferred an individual
right to keep and bear arms.”).
8 See, e.g., Burgh, supra note 4, at 401 (“And if the generality
of housekeepers were only half-disciplined, a designing prince,
or ministry, would hardly dare to provoke the people by an
open attack against their liberties . . . . But without the
people’s having some knowledge of arms, I see not what is to
secure them against slavery, whenever it shall please a daring
prince, or minister, to resolve on making the experiment. See
the histories of all the nations of the world.”); Richard Henry
Lee, Federal Farmer No. 3 (1787), reprinted in
19 Documentary History of the Ratification of the Constitution
and the Bill of Rights 219 (John P. Kaminski et al. eds., 2020)
(“[T]he yeomanry of the country . . . possess arms, and are too
strong a body of men to be openly offended . . . .”).
9 See, e.g., Halbrook, supra note 4, at 78–109 (recounting how,
after British soldiers executed civilians on their retreat from
Lexington and Concord, royal governors attempted to disarm
the people, and Great Britain placed an embargo on the
importation of arms to America).

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5
equity,10 they broke ranks with the past in several respects. For
instance, titles of nobility were used in England, but the
Constitution expressly prohibits them.11 If that prohibition did
not include titles of nobility that were part of the English
historical tradition, then it would be close to meaningless.
Similarly, the Second Amendment cannot be read to permit the
extreme forms of disarmament used in England and colonial
America while under British rule; the Founders rejected those
forceful suppressions of their liberties.12 Nor do the
disarmament measures taken by the American States during
the Revolutionary War in response to a person’s refusal to take
a loyalty oath serve as useful analogues.13 As the Majority
10 See U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall
extend to all Cases, in Law and Equity . . . .”).
11 See U.S. Const. art. I, § 9, cl. 8 (“No Title of Nobility shall
be granted by the United States . . . .”).
12 See The Declaration of Independence para. 13 (U.S. 1776)
(“[The King] has kept among us, in times of peace, Standing
Armies without the Consent of our legislatures.”); id. para. 14
(“He has affected to render the Military independent of and
superior to the Civil power.”); id. para. 27 (“He is at this time
transporting large Armies of foreign Mercenaries to compleat
the works of death, desolation and tyranny . . . .”); id. para. 28
(“He has constrained our fellow Citizens taken Captive on the
high Seas to bear Arms against their Country . . . .”).
13 See, e.g., 4 Journals of the Continental Congress, 1774–1789
205 (Worthington Chauncey Ford ed., 1906) (calling upon the
States “immediately to cause all persons to be disarmed . . .
who are notoriously disaffected to the cause of America, or
who have not associated, and shall refuse to associate, to
defend, by arms, these United Colonies, against the hostile
attempts of the British fleets and armies”); G.A. Gilbert, The
Connecticut Loyalists, 4 Am. Hist. Rev. 273, 280–82 (1899)
(recounting Connecticut’s disarming those who spoke against
the Continental Congress and were “inimical” to the American

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6
Opinion explains, ‘the people’ entitled to the right to keep and
bear arms consists only of citizens. So, a person who did not
wish to belong to the new American nation would hardly have
been one of ‘the people’ entitled to keep and bear arms. In
sum, the most relevant historical principles for disarming a
citizen are those grounded in the more stable and enduring
aspects of our legal tradition, such as the common law and
equity – as opposed to the principles underlying the excesses
of the Crown or Parliament or even those supporting
Revolutionary War measures in response to persons who
retained foreign allegiances.
cause); Act of Mar. 14, 1776, 1775–76 Mass. Acts ch. 21 §§ 1–
2, 8 (Massachusetts’s disarming all persons over sixteen not
being Quakers who would not adopt the American cause as
their own and swear to assist its defense); An Act Empowering
the Members of the Upper and Lower Houses of Assembly, to
Tender to Such of the Inhabitants as are Hereinafter
Mentioned, a Declaration, or Test, for Subscription (1776),
reprinted in 7 Records of the Colony of Rhode Island and
Providence Plantations in New England 566–68 (John Russell
Bartlett ed., 1862) (same); Act of May 1777, 177 Va. Acts
ch. 3, reprinted in 9 The Statutes at Large: Being a Collection
of All the Laws of Virginia 281–82 (William Waller Hening
ed., 1821) (disarming all who refused a loyalty oath and were
not excepted from taking it); Act of 1777, 1777 S.C. Acts ch. 6
§ 9, reprinted in 24 The State Records of North Carolina 90
(Walter Clark ed., 1905) (same); Resolution of Mar. 13, 1776,
reprinted in Journal of the Provincial Congress of South
Carolina, 1776 77–78 (1776) (disarming those who bore arms
against the Continental or Colony Congress, or opposed either,
and requiring a loyalty oath to be rehabilitated and rearmed);
An Ordinance Respecting the Arms of Non-Associators, 1776
Pa. Laws ch. 729 (July 19, 1776), reprinted in 9 The Statutes
at Large of Pennsylvania from 1682 to 1801 11 (James T.
Mitchell & Henry Flanders eds., 1903) (ordering the
disarmament of “non-associators”).

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7
From that perspective, I see no historical analogue for the
lifetime disarmament of an otherwise free citizen. It is as
ancient as it is obvious that a person who is imprisoned or
otherwise confined does not have the right to bear arms for the
duration of confinement. Similarly, non-confined citizens who
are still within the criminal justice system through parole or
supervised release may have their freedoms, including the right
to bear arms, limited if justified as a penal measure. Critically,
in those circumstances, the loss of the right to bear arms is
effectuated through an adjudicative process with the
availability of the full panoply of constitutional rights for the
accused and the convicted – and there are procedures available
to directly appeal and collaterally challenge any infringement
of a constitutional right.14 But once a citizen repays his debt to
society, a legislative restriction on the right to keep and bear
arms based on nothing more than a prior conviction is without
relevant historical antecedent.15 And legislation permanently
14 Similar procedures are available in civil commitment
proceedings to protect against a permanent revocation of
liberty for persons with serious mental illnesses – a loss of
liberty may occur only as long as it is constitutionally justified,
and it must be subject to periodic review. See O’Connor v.
Donaldson, 422 U.S. 563, 575 (1975) (explaining that “even if
[a person’s] involuntary confinement was initially permissible,
it could not constitutionally continue after that basis no longer
existed” (citations omitted)); see Clark v. Cohen, 794 F.2d 79,
86 (3d Cir. 1986) (explaining that “due process require[s]
periodic reviews of [a person’s] continuing need for
institutionalization . . . because if the basis for a commitment
ceases to exist, continued confinement violates the substantive
liberty interest in freedom from unnecessary restraint” (internal
citation omitted)).
15 See Story, supra note 6, at §§ 1890–91 (“The right of the
citizens to keep and bear arms has justly been considered, as
the palladium of the liberties of a republic; since it offers a
strong moral check against the usurpation and arbitrary power

-- 63 of 164 --

8
disarming a person who has already repaid his debt to society
is even further removed from our Founding-era heritage.16
of rulers; . . . it is at present in England more nominal then real,
as a defensive privilege.”); Rawle, supra note 6, at 125–26
(“No clause in the Constitution could by any rule of
construction be conceived to give to congress a power to
disarm the people . . . .”).
16 It is true that before enacting the felon-in-possession statute
in 1965, the Subcommittee to Investigate Juvenile
Delinquency of the Senate Judiciary Committee heard
testimony from Attorney General Katzenbach in which he
opined that “[w]ith respect to the second amendment, the
Supreme Court of the United States long ago made it clear that
the amendment did not guarantee to any individuals the right
to bear arms.” Federal Firearms Act: Hearings Before the
Subcomm. to Investigate Juv. Delinq., 89th Cong. 41 (1965)
(statement of Att’y Gen. Nicholas deBelleville Katzenbach);
see also id. (exhibit 7) (reporting with respect to the felon-in-
possession’s predecessor statute that “[a]t the time of the
passage of the National Firearms Act in 1934 and the
consideration and passage by Congress of the Federal Firearms
Act from 1935 to 1938, the second amendment was not
considered to be an obstacle” and advising that “[d]ecisions
applying Federal firearms legislation hold that the second
amendment was not, as the first amendment was, adopted with
individual rights in mind, but was a prohibition upon Federal
action which would interfere with the organization by States of
their militia”). That advice has not aged well. See Heller,
554 U.S. at 595 (2008), see also Op. Off. of Legal Counsel,
Whether the Second Amendment Secures a Legal Right 28
(2004) (“[T]he Second amendment secures a personal right of
individuals, not a collective right that may only be invoked by
a state or a quasi-collective right restricted to those persons
who serve in organized militia units.”). So there is more than
a hairline crack in the legal foundation for the felon-in-
possession statutory provision.

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9
Thus, any law imposing a permanent restriction on “the right
of the people to keep and bear Arms”17 is constitutionally
suspect as a facial matter, and here, the application of
18 U.S.C. § 922(g)(1) to permanently disarm Bryan Range
after he repaid his debt to society for his food-stamp fraud
violates the Second Amendment.
17 U.S. Const. amend. II.

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1
KRAUSE, Circuit Judge, concurring in the judgment, with
whom ROTH, Circuit Judge, joins in part.
When this case was previously before us, I urged that
we assess whether firearm regulations were constitutionally
permissible in the present by comparing historical analogues in
principle, not with precision. Hewing precisely to history and
tradition would only make sense in a world where “arms” still
meant muskets and flintlock pistols,1 and where communities
were still small and “close-knit.”2 In contrast, the firearms of
America today include semi-automatic handguns, assault
rifles,3 and high-capacity magazines; our population of more
than 330 million is mobile and far-flung; and, tragically, brutal
gun deaths and horrific mass shootings—exceeding 490 this
1 See Joseph Blocher & Eric Ruben, Originalism-by-Analogy
and Second Amendment Adjudication, 133 Yale L.J. 99, 153
(2023) (“Americans in 1791 generally owned muzzle-loading
flintlocks, liable to misfire and incapable of firing multiple
shots. Guns thus generally were not kept or carried loaded in
1791.” (quotation omitted)); Akhil Reed Amar, Second
Thoughts, 65 Law & Contemp. Probs. 103, 107 (2002) (“At the
Founding . . . [a] person often had to get close to you to kill
you, and, in getting close, he typically rendered himself vul-
nerable to counterattack. Reloading took time, and thus one
person could not ordinarily kill dozens in seconds.”).
2 Stephanos Bibas, The Machinery of Criminal Justice 2
(2012).
3 See Robert J. Spitzer, Gun Accessories and the Second
Amendment: Assault Weapons, Magazines, and Silencers, 83
Law & Contemp. Probs. 231, 240 (2020) (“[A]ssault weapons
play a disproportionately large role in three types of criminal
activity: mass shootings, police killings, and gang activity.”).

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2
year—are a daily occurrence in our schools, our streets, and
our places of worship.4 After observing that the balancing of
public safety with the right to bear arms has historically been a
core function of the legislature in our system of separated
powers,5 that the balance Congress struck in 18 U.S.C.
§ 922(g)(1) by categorically disarming convicted felons6
comported with traditional legislative authority to impose even
4 See Mass Shootings in 2024, Gun Violence Archive,
https://www.gunviolencearchive.org/reports/mass-shooting (last
visited Dec. 23, 2024).
5 See Adam Winkler, Scrutinizing the Second Amendment, 105
Mich. L. Rev. 683, 715 (2007) (“Achievement of that balance
requires highly complex socio-economic calculations regard-
ing what kinds of weapons ought to be possessed by individu-
als and how to limit access to them by those deemed untrust-
worthy or dangerous. Such complicated multi-factor judg-
ments require trade-offs that courts are not institutionally
equipped to make. Legislatures, by contrast, are structured to
make precisely those kinds of determinations.”); see also Lon
L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L.
Rev. 353, 371 (1978) (noting the “relative incapacity of adju-
dication to solve ‘polycentric’ problems”).
6 Section 922(g)(1) makes it illegal for anyone convicted of “a
crime punishable by imprisonment for a term exceeding one
year” to possess a firearm, unless the crime is a state misde-
meanor “punishable by a term of imprisonment of two years or
less” or relates to “antitrust violations, unfair trade practices,
restraints of trade, or other similar offenses relating to the reg-
ulation of business practices.” 18 U.S.C. §§ 921(a)(20),
922(g)(1). For ease of reference, this opinion refers to all
crimes covered by § 922(g)(1) as “felonies” and individuals
falling within § 922(g)(1)’s purview as “felons.”

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3
greater deprivations like capital punishment, and that Congress
had provided mechanisms in 18 U.S.C. §§ 921(a)(20) and
925(c) by which an individual offender could seek to lift his
disability, I concluded that § 922(g)(1) was constitutional as
applied to all felons within its scope, and I dissented on that
basis. I also urged that, rather than proceeding on an offense-
by-offense basis and implying that § 922(g)(1) had never been
enforceable against a felon “like Range,”7 the majority instead
should make clear that Range had successfully challenged only
its future enforcement, in effect, lifting the disability that had
been lawfully imposed based on § 922(g)(1)’s rebuttable
presumption of constitutionality.
Since then, the Supreme Court decided United States v.
Rahimi, 144 S. Ct. 1889 (2024), and vacated and remanded our
Court’s en banc decision for reconsideration in light of its
teachings.8 I take from Rahimi several lessons that compel a
different rationale than the majority’s today and that lead me
now to concur in the judgment.
The first three confirm the premises of my prior
opinion: (1) we should indeed determine “whether the
challenged regulation is consistent with the principles that
underpin our regulatory tradition”—not whether it “precisely
match[es] its historical precursors,” id. at 1898 (emphasis
added); (2) the Second Amendment does permit “the
enactment of laws banning the possession of guns by
categories of persons thought by a legislature to present a
special danger of misuse,” id. at 1901 (emphasis added), and
7 Range v. Attorney Gen. (Range I), 69 F.4th 96, 106 (3d Cir.
2023), judgment vacated sub nom. Garland v. Range, 144 S.
Ct. 2706 (2024).
8 See Garland, 144 S. Ct. at 2706–07.

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4
in particular, “prohibitions . . . on the possession of firearms by
‘felons and the mentally ill,’” which the Court reiterated are
“presumptively lawful,” id. at 1902 (quoting District of
Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008)); and
(3) the availability of a greater penalty for an analogous offense
at the Founding implies that a lesser penalty is constitutional
today, e.g., “if imprisonment was permissible” at the Founding
for an offense, the “lesser restriction” of disarmament in
modern times “is also permissible,” id.
In addition, however, Rahimi also flagged two aspects
of a dispossession law as constitutionally relevant: first, that
the burden the law imposes has at least the potential to be “of
limited duration,” and, second, that—notwithstanding the
authority of legislatures to disarm entire “categories of
persons” presumed dangerous in the first instance—the law
allows an individual to challenge that presumption and
establish that he does not currently “present a special danger of
[firearm] misuse” or a “credible threat” to the safety of others.
Id. at 1901–02.9
9 The Court attached constitutional significance to these two
statutory attributes in the context of a law that prohibited pos-
session of a firearm only while “subject to a [domestic violence
restraining] order” that included “a finding that such person
represents a credible threat to the physical safety” of his do-
mestic partner (or child). 18 U.S.C. § 922(g)(8). It also cau-
tioned that its holding was a narrow one. See United States v.
Rahimi, 144 S. Ct. 1889, 1903 (2024) (“[T]oday . . . we con-
clude only this: An individual found by a court to pose a cred-
ible threat to the physical safety of another may be temporarily
disarmed consistent with the Second Amendment.”).

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5
Notwithstanding these lessons, my colleagues in the
majority have treated the Supreme Court’s remand as
essentially pro forma and file an opinion today that is largely
unchanged. True, the majority now acknowledges that the
relief it provides Range is only prospective protection from
prosecution for “any future possession of a firearm,” and it
seemingly acknowledges that § 922(g)(1) may be categorically
applied, consistent with the Second Amendment, to at least
“physically dangerous” felons.10 But it still disavows
Congress’s power to categorically disarm other felons who fall
within § 922(g)(1)’s parameters, and to do so on a
presumptively permanent basis. It also still insists on
analyzing § 922(g)(1) on an offense-by-offense basis,
demanding that any historical analogue match with high
precision, rather than reasoning by principle. And it again
declines to articulate any clear framework by which courts may
distinguish between constitutional and unconstitutional
applications of § 922(g)(1).
These aspects of the majority opinion are in error. I
ultimately concur in the judgment, however, because Rahimi’s
reasoning persuades me that—even though our historical
tradition supports § 922(g)(1)’s categorical disarmament of all
Nonetheless, the repeated references to these attributes in the
majority and concurring opinions and their anchoring in histor-
ical tradition suggest they carry constitutional weight more
broadly. See, e.g., id. at 1902–03 (emphasizing the presence
of “judicial determinations,” “f[indings] by a court,” and that
those who posed a credible threat to the physical safety of an-
other were only “temporarily disarmed”); id. at 1908–10 (Gor-
such, J., concurring) (same); see also infra Section I.C.2.
10 Maj. Op. at 20; see also id. at 25.

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6
felons on a presumptively permanent basis—the Second
Amendment demands that the disability it imposes has at least
the potential to be “of limited duration,” Rahimi, 144 S. Ct. at
1902, and that a felon have a meaningful opportunity, after
successfully serving his sentence,11 to show that the burden
should be lifted based on individualized findings. Indeed, the
same historical analogues demonstrating that those who
commit serious crimes can be disarmed as a class of persons
that presumptively “present[s] a special danger of misus[ing]”
firearms, id. at 1901, also confirm the necessity of providing
individual class members with a later opportunity to rebut that
presumption and reclaim their Second Amendment rights
going forward.
I write to clarify three points: First, the historical record
reveals that, contrary to the majority’s view, legislatures dating
back to the Founding had the authority to disarm not just
“physically dangerous” felons, but a wide range of groups
considered to present a special danger, while also allowing for
individual pre-enforcement challenges. Second, the majority’s
reasoning cannot be squared with Supreme Court and historical
precedent, and its continued insistence on historical twins
portends confusion and inconsistency among the district
courts. And third, while we hold today that Range’s
declaratory judgment entitles him to protection only for future
firearm possession, at least two circuits have suggested that
11 See United States v. Moore, 111 F.4th 266, 272 (3d Cir.
2024) (holding that § 922(g)(1) is constitutional as applied to
felons who are serving a criminal sentence on parole, proba-
tion, or supervised release because our historical tradition
“yield[s] the principle that a convict may be disarmed while he
completes his sentence and reintegrates into society”).

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7
successful as-applied challenges operate retroactively, making
enforcement void ab initio and jeopardizing both pending
§ 922(g)(1) indictments and convictions on direct appeal. See
United States v. Williams, 113 F.4th 637, 657, 661–63 (6th Cir.
2024); United States v. Diaz, 116 F.4th 458, 461, 469–70 & n.4
(5th Cir. 2024). I take this opportunity to highlight the drastic
consequences of that approach and to explain why a
prospective approach comports with Bruen and Rahimi, is
faithful to our regulatory tradition, and is administrable in
practice.
I. The Historical Validity of § 922(g)(1)
More than a decade of precedent now illuminates the
constitutionality of felon-in-possession bans and the Supreme
Court’s methodology for reviewing them. The analysis that
follows will (A) summarize the Court’s pronouncements con-
cerning those bans, (B) survey the relevant regulatory tradition,
and (C) consider how § 922(g)(1) fits within that regulatory
tradition.
A. Felon-Dispossession Laws in the Court’s Recent
Precedent
Repeatedly, the Supreme Court has told us that felon-
in-possession statutes are presumptively constitutional. In
holding the “right of the people”12 protected by the Second
12 In the first part of its analysis, the majority defends its belief
that felons remain part of “the people,” so their firearm posses-
sion is presumptively protected, and the Government must
prove its disarmament regulation comports with historical tra-
dition. Maj. Op. at 11–16. Other jurists believe that historical

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8
Amendment was an “individual right,” Justice Scalia’s seminal
opinion in Heller specified this meant “the right of law-abid-
ing, responsible citizens” to keep and bear arms, and therefore
characterized “prohibitions on the possession of firearms by
felons” as both “longstanding” and “presumptively lawful.”13
554 U.S. at 579, 592, 626, 627 n.26, 635.
In New York State Rifle & Pistol Association, Inc. v.
Bruen, the Court clarified who qualifies as a “law-abiding” cit-
izen when it explained that, despite the infirmity of New
York’s may-issue open-carry licensing regime, “nothing in our
analysis should be interpreted to suggest the unconstitutional-
ity of the 43 States’ ‘shall-issue’ licensing regimes . . . [,]
which often require applicants to undergo a [criminal] back-
ground check” and “are designed to ensure only that those
bearing arms in the jurisdiction are, in fact, ‘law-abiding,
tradition permits the disarmament of felons precisely because
“the people” historically meant “law-abiding, responsible citi-
zens.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597
U.S. 1, 26 (2022) (citation omitted). But that debate—unlike
the test for what constitutes an adequate “historical analogue,”
id. at 30 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d
Cir. 2021))—is largely academic. As then-Judge Barrett rec-
ognized, the “same body of evidence” can be used to illuminate
who is part of the people or “the scope of the legislature’s
power,” and either approach “yield[s] the same result.” Kanter
v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissent-
ing).
13 See also McDonald v. City of Chicago, 561 U.S. 742, 786
(2010) (plurality) (“repeat[ing] those assurances”); Bruen, 597
U.S. at 72 (Alito, J., concurring) (same); id. at 80–81 (Ka-
vanaugh, J., concurring) (same).

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9
responsible citizens.’”14 597 U.S. 1, 38 n.9 (2022) (quoting
Heller, 554 U.S. at 635). And it directed us, in considering
whether modern-day regulations are consistent with historical
ones, to compare “how and why the regulations burden a law-
abiding citizen’s right to armed self-defense.” Id. at 29 (em-
phasis added).
Most recently, in Rahimi, the Court reiterated that the
Constitution does not prohibit regulations that ban “the posses-
sion of firearms by ‘felons and the mentally ill,’” which the
Court held “presumptively lawful” even as applied to the
“core”15 right of self-defense inside the home. 144 S. Ct. at
1902 (quoting Heller, 554 U.S. at 626, 627 n.26). Citing Hel-
ler’s own assurance about the presumptive constitutionality of
felon-dispossession laws, the Court disavowed any suggestion
“that the Second Amendment prohibits the enactment of laws
banning the possession of guns by categories of persons
thought by a legislature to present a special danger of misuse.”
Id. at 1901. And it again told us to focus our historical analysis
on “a law-abiding citizen’s” right to bear arms. Id. at 1932
(Thomas, J., dissenting) (quoting Bruen, 597 U.S. at 29). Thus,
time and again, the Supreme Court has acknowledged that the
deep roots of felon-possession bans in American history impart
a presumption of lawfulness to § 922(g)(1).
14 Those background checks screen for both violent and non-
violent offenses. See, e.g., Wash. Rev. Code Ann.
§ 9.41.070(1)(a); Colo. Rev. Stat. Ann. § 18-12-203(1)(c);
Kan. Stat. Ann. § 75-7c04(a)(2); Miss. Code. Ann. § 45-9-
101(2)(d); N.H. Rev. Stat. Ann. § 159:6(I)(a); N.C. Gen. Stat.
Ann. § 14-415.12(b)(1).
15 District of Columbia v. Heller, 554 U.S. 570, 630, 634
(2008).

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10
As to methodology, Rahimi was also instructive, clari-
fying that “the appropriate analysis involves considering
whether the challenged regulation is consistent with the prin-
ciples that underpin our regulatory tradition,” 144 S. Ct. at
1898 (emphasis added), and that “if imprisonment was permis-
sible” as a penalty for an offense at the Founding, “the lesser
restriction” of disarmament imposed by a modern analogue “is
also permissible,” id. at 1902. There, the Court derived the rel-
evant principles from “two distinct legal regimes”—surety
laws and going armed laws—“[t]aken together.” Id. at 1899,
1901. Even though the regulation at issue, § 922(g)(8), was
“by no means identical to these founding era regimes,” the
Court emphasized that “it does not need to be,” id. 1901, be-
cause a regulation that “does not precisely match its historical
precursors . . . ‘still may be analogous enough’” to withstand
constitutional scrutiny. id. at 1898 (quoting Bruen, 597 U.S. at
30). Rather than seeking out a “dead ringer” or “historical
twin,” we were instructed to determine whether the modern-
day regulation “comport[s] with the principles underlying the
Second Amendment” by considering whether the challenged
regulation is “‘relevantly similar’ to laws that our tradition is
understood to permit.” Id. at 1898 (quoting Bruen, 597 U.S. at
29).
B. Relevantly Similar Historical Analogues
When we go to compare “relevantly similar” laws, “not
all history is created equal.” Bruen, 597 U.S. at 34. Founding-
era laws “surrounding the ratification of the text” are generally
considered to be “the history that matters most,” Rahimi, 144
S. Ct. at 1924 (Barrett, J., concurring), because Second
Amendment rights “are enshrined with the scope they were un-
derstood to have when the people adopted them,” Heller, 554
U.S. at 634–35. But we also look to “English history dating

-- 75 of 164 --

11
from the late 1600s, along with American colonial views lead-
ing up to the founding,” Bruen, 597 U.S. at 20, because the
right to keep and bear arms was a “pre-existing right,” id.
(quoting Heller, 554 U.S. at 592). In addition, post-enactment
history and tradition “through the end of the 19th century” is a
“critical tool” for determining the principles underlying the
Second Amendment. Id. at 35 (quoting Heller, 554 U.S. at
605).16
Here, the Government identifies two sets of relevantly
similar laws from which comparable principles can be derived:
(1) laws that categorically disarmed entire classes of people,
and (2) felony punishment laws. I address each below before
16 The Supreme Court has approvingly cited and relied on post-
enactment sources in each of its recent Second Amendment
cases. See Rahimi, 144 S. Ct. at 1899–1901 (citing laws and
tradition from the early nineteenth century); Bruen, 597 U.S. at
50–57 & nn.15–24 (analyzing nineteenth-century laws and
cases); McDonald, 561 U.S. at 778 (Alito, J.) (“[I]t is clear that
the Framers and ratifiers of the Fourteenth Amendment
counted the right to keep and bear arms among those funda-
mental rights necessary to our system of ordered liberty.”);
Heller, 554 U.S. at 605 (“We now address how the Second
Amendment was interpreted from immediately after its ratifi-
cation through the end of the 19th century.”); see also Rahimi,
144 S. Ct. at 1915–16 (Kavanaugh, J., concurring) (“As the
Framers made clear, and as th[e] Court has stated time and
again for more than two centuries, post-ratification history . . .
can also be important for interpreting vague constitutional text
and determining exceptions to individual constitutional
rights.”); id. at 1924 (Barrett, J., concurring) (explaining that
“postenactment history can be an important tool”).

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12
comparing the principles derived from these analogues to
§ 922(g)(1).
1. Categorical Disarmament Laws
a. England’s Restoration and Glori-
ous Revolution
During the late seventeenth century, the English
government repeatedly disarmed individuals whose conduct
indicated that they could not be trusted to abide by the
sovereign and its dictates.
Following the tumult of the English Civil War, the
restored Stuart monarchs disarmed nonconformist (i.e., non-
Anglican) Protestants.17 Of course, not all nonconformists
were dangerous; to the contrary, many belonged to pacificist
denominations like the Quakers.18 However, they refused to
participate in the Church of England, an institution headed by
the King as a matter of English law.19 And nonconformists
17 See Joyce Lee Malcolm, To Keep and Bear Arms: The Ori-
gins of an Anglo-American Right 45 (1994) (describing how
Charles II “totally disarmed . . . religious dissenters”).
18 See Joyce Lee Malcolm, The Right of the People to Keep and
Bear Arms: The Common Law Tradition, 10 Hastings Const.
L.Q. 285, 304 n.117 (1983) (“Persons judged to be suspicious
by the royal administration were those . . . who belonged to the
Protestant sects that refused to remain within the Church of
England. The Quakers were prominent sufferers.”).
19 See Church of England, BBC (June 30, 2011),
https://www.bbc.co.uk/religion/religions/christian-
ity/cofe/cofe_1.shtml (describing “the Act of Supremacy” en-
acted during the reign of Henry VIII).

-- 77 of 164 --

13
often refused to take mandatory oaths acknowledging the
King’s sovereign authority over matters of religion.20 As a
result, Anglicans accused nonconformists of believing their
faith exempted them from obedience to the law.21
Protestants had their rights restored after the Glorious
Revolution of 1688 replaced the Catholic King James II with
William of Orange and Mary, James’s Protestant daughter.22
But even then, Parliament enacted the English Bill of Rights,
which declared: “Subjects which are Protestants, may have
Arms for their Defence suitable to their Conditions, and as
allowed by Law.”23 This “predecessor to our Second
Amendment,” Bruen, 597 U.S. at 44 (quoting Heller, 554 U.S.
at 593), reveals that the legislature—Parliament—had the
authority to decide who was law-abiding enough to keep and
bear arms.24
20 See Frederick B. Jonassen, “So Help Me?”: Religious Ex-
pression and Artifacts in the Oath of Office and the Courtroom
Oath, 12 Cardozo Pub. L., Pol’y & Ethics J. 303, 322 (2014)
(describing Charles II’s reinstation of the Oath of Supremacy);
Caroline Robbins, Selden’s Pills: State Oaths in England,
1558–1714, 35 Huntington Lib. Q. 303, 314–15 (1972) (dis-
cussing nonconformists’ refusal to take such oaths).
21 See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ v.
‘Antinomians’ in Restoration England, 67 J. Ecclesiastical
Hist. 325, 326, 334 (2016).
22 See Alice Ristroph, The Second Amendment in a Carceral
State, 116 Nw. U. L. Rev. 203, 228 (2021).
23 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis added).
24 Cf. Lois G. Schwoerer, To Hold and Bear Arms: The English
Perspective, 76 Chi.-Kent L. Rev. 27, 47–48 (2000)

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14
In 1689, the pendulum of distrust swung the other way.
Parliament enacted a statute prohibiting Catholics who refused
to take an oath renouncing the tenets of their faith from owning
firearms, except as necessary for self-defense.25 As with
nonconformists, this prohibition was not based on the notion
that every single Catholic was dangerous. Rather, the
categorical argument English Protestants made against
Catholicism at the time was that Catholics’ faith put the
dictates of a “foreign power,” namely the Vatican, before
English law.26 Accordingly, the disarmament of Catholics in
1689 reflects Protestant fears that Catholics could not be
trusted to obey the law.
That restriction could be lifted only prospectively and
on an individual basis. That is, Parliament permitted Catholics
who “repeated and subscribed” to the necessary oath before
(explaining how the English Bill of Rights preserved Parlia-
ment’s authority to limit who could bear arms).
25 An Act for the Better Securing the Government by Disarm-
ing Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15
(Eng. 1689); see Malcolm, supra note 17, at 123.
26 See Diego Lucci, John Locke on Atheism, Catholicism, An-
tinomianism, and Deism, 20 Etica & Politica/Ethics & Pol.
201, 228–29 (2018). Official Anglican doctrine—regularly
preached throughout England—warned that the Pope taught
“that they that are under him are free from all burdens and
charges of the commonwealth, and obedience toward their
prince.” An Exhortation Concerning Good Order, and Obedi-
ence to Rulers and Magistrates, in Sermons or Homilies Ap-
pointed to Be Read in Churches in the Time of Queen Elizabeth
of Famous Memory 114, 125 (new ed., Gilbert & Rivington
1839).

-- 79 of 164 --

15
“any two or more Justices of the Peace” to resume keeping
arms.27 But, needless to say, disavowal of religious tenets
hardly demonstrated that the swearing individual no longer had
the capacity to commit violence; rather, the oath signified
allegiance to the English government and an assurance of
conformity to its laws. This status-based disarmament of
Catholics evinces the “historical understanding”28 not only that
legislatures could categorically disarm groups they viewed as
unwilling to obey the law, but also that disarmed members had
an opportunity to prospectively regain their right to bear arms.
b. Colonial America
The English notion that the government could disarm
those not considered law-abiding traveled to the American
colonies. Although some of the earliest firearm laws in
colonial America forbid Native Americans and Black people
from owning guns,29 the colonies also repeatedly disarmed
27 1 W. & M., Sess. 1, ch. 15 (Eng. 1689).
28 Bruen, 597 U.S. at 26. That the same Parliament that enacted
the predecessor to our Second Amendment also passed laws
categorically disarming groups of people is particularly rele-
vant to our historical inquiry. See William Baude & Robert
Leider, The General-Law Right to Bear Arms, 99 Notre Dame
L. Rev. 1467, 1472 (2024) (explaining that early American
courts described the right to arms codified in “the English Bill
of Rights, the Second Amendment to the U.S. Constitution, and
various state constitutions as codifying the same preexisting
right”).
29 See Clayton E. Cramer, Armed America: The Remarkable
Story of How and Why Guns Became as American as Apple Pie
31, 43 (2006). Today, we emphatically reject these bigoted and

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16
full-fledged members of the political community as it then
existed—i.e., free, Christian, white men—who the authorities
believed could not be trusted to obey the law. Those
restrictions are telling because they were imposed at a time
before the advent of the English Bill of Rights, when the
charters of Virginia and Massachusetts provided
unprecedented protections for colonists’ firearm rights.30
The Virginia Company carried out one of the earliest
recorded disarmaments in the American colonies in 1624. For
his “opprobrious” and “base and detracting speeches
concerning the Governor,” Richard Barnes was “disarmed” by
the Virginia Council and “banished” from Jamestown.31 By
disrespecting the colonial authorities, Barnes demonstrated
that he could no longer be trusted as a law-abiding member of
the community and thus forfeited his ability to keep arms.
During the late 1630s, a Boston preacher named Anne
Hutchinson challenged the Massachusetts Bay government’s
authority over spiritual matters by advocating for direct,
unconstitutional laws, as well as their premise that one’s race
or religion correlates with disrespect for the law. I cite them
here only to demonstrate the tradition of categorical, status-
based disarmaments. See Blocher & Ruben, supra note 1, at
165 (urging courts examining historical disarmament laws that
would violate the Constitution today to “ask[] why earlier gen-
erations disarmed certain groups of people, rather than asking
only whom they disarmed”).
30 See Nicholas J. Johnson et al., Firearms Law and the Second
Amendment: Regulation, Rights, and Policy 174 (3d ed. 2022).
31 David Thomas Konig, “Dale’s Laws” and the Non-Common
Law Origins of Criminal Justice in Virginia, 26 Am. J. Legal
Hist. 354, 371 (1982).

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17
personal relationships with the divine.32 Governor John
Winthrop accused Hutchinson and her followers of being
Antinomians—those who viewed their salvation as exempting
them from the law—and banished her.33 The colonial
government also disarmed at least fifty-eight of Hutchinson’s
supporters, not because those supporters had shown a
propensity for violence, but “to embarrass the offenders” who
were forced to personally deliver their arms to the authorities
in an act of public submission.34 The Massachusetts authorities
therefore disarmed Hutchinson’s supporters to shame those
colonists because the authorities concluded their conduct
evinced a willingness to disobey the law.35
Again, however, restoration of the right to bear arms
was available, but only prospectively, and only for individuals
who affirmatively sought relief: Hutchinson’s followers who
renounced her teachings and confessed their sins to the
authorities “were welcomed back into the community and able
32 See Edmund S. Morgan, The Case Against Anne Hutchinson,
10 New Eng. Q. 635, 637–38, 644 (1937).
33 Id. at 648; Ann Fairfax Withington & Jack Schwartz, The
Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226
(1978).
34 James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebel-
lion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988).
35 Cf. John Felipe Acevedo, Dignity Takings in the Criminal
Law of Seventeenth-Century England and the Massachusetts
Bay Colony, 92 Chi.-Kent L. Rev. 743, 761 (2017) (describing
other shaming punishments used at the time, including scarlet
letters).

-- 82 of 164 --

18
to retain their arms,” as they had shown that they could once
again be trusted to abide by the law.36
Like the Stuart monarchs in England, the Anglican
colony of Virginia disarmed nonconformist Protestants in the
1640s due to their rejection of the King’s sovereign power over
religion. When a group of nonconformist Puritans from
Massachusetts resettled in southeastern Virginia, Governor
William Berkeley “acted quickly” to head off any
“[o]pposition to the king” by disarming them.37 And after the
Glorious Revolution, the American colonies followed
England’s example by disarming their Catholic residents.38
The colonies redoubled the disarmament of Catholics
during the Seven Years’ War of 1756–1763 based on their
perceived unwillingness to adhere to the King’s sovereign
36 Joseph G.S. Greenlee, The Historical Justification for Pro-
hibiting Dangerous Persons from Possessing Arms, 20 Wyo.
L. Rev. 249, 263 (2020).
37 Kevin Butterfield, The Puritan Experiment in Virginia,
1607–1650, at 21 (June 1999) (M.A. thesis, College of William
and Mary) (on file with William and Mary Libraries); see
Charles Campbell, History of the Colony and Ancient Domin-
ion of Virginia 211–12 (1860).
38 Just three years after designating Anglicanism as the col-
ony’s official religion, see George J. Lankevich, New York
City: A Short History 30 (2002), New York Governor Benja-
min Fletcher disarmed Catholic colonists in 1696, see Shona
Helen Johnston, Papists in a Protestant World: The Catholic
Anglo-Atlantic in the Seventeenth Century 219–20 (May 11,
2011) (Ph.D. dissertation, Georgetown University) (on file
with the Georgetown University Library).

-- 83 of 164 --

19
dictates.39 Maryland, for example, though founded as a haven
for persecuted English Catholics,40 confiscated Catholics’
firearms and ammunition during the war.41 Notably, that
decision was not in response to violence; indeed, the colony’s
governor at the time observed that “the Papists behave
themselves peaceably and as good subjects.”42 Neighboring
Pennsylvania followed suit and took “all arms, military
accoutrements, gunpowder and ammunition” from all
Catholics and “reputed” Catholics.43 Virginia likewise
prohibited Catholics and “suspected” Catholics from owning
39 See Greenlee, supra note 36, at 263. Colonies disarmed
other religious minorities during the Seven Years’ War, too.
For instance, New Jersey confiscated firearms from Moravi-
ans, a group of nonconformist Protestants from modern-day
Germany, because the governor deemed their nonconformist
views sufficient evidence that they could not be trusted to obey
authority. See Johnson et al., supra note 30, at 198.
40 See Michael W. McConnell, The Origins and Historical Un-
derstanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1424 (1990).
41 See Acts of May 22, 1756, reprinted in 52 Archives of Mar-
yland: Proceedings and Acts of the General Assembly, Febru-
ary 1755 – October 1756, at 448–49, 454 (J. Hall Pleasants ed.,
1935) [hereinafter Md. Act of 1756]; Greenlee, supra note 36,
at 263; Johnson et al., supra note 30, at 197.
42 Elihu S. Riley, A History of the General Assembly of Mary-
land 224 (1912) (quoting a July 9, 1755 letter from Governor
Sharpe).
43 An Act for Forming and Regulating the Militia of the Prov-
ince of Pennsylvania, reprinted in 5 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 627 (James T. Mitchell &
Henry Flanders eds., 1898) [hereinafter Pa. Act of 1757].

-- 84 of 164 --

20
weapons or ammunition, declaring that it was “dangerous at
this time to permit Papists to be armed.”44
Again, these generalizations led to overinclusive bans.
Not all Catholics posed a threat of misusing their firearms.
That said, these laws reveal that legislatures had the authority
to disarm every member of a group based on class-wide
presumptions about law-abiding behavior. And under each
regime, Catholics who violated the ban and were caught in
possession of arms—whether or not they were dangerous—
were subject to severe penalties.
To account for this overbreadth, colonial governments
provided individual Catholics with the opportunity to
prospectively restore their armament rights by persuading a
government official that they themselves were unlikely to
misuse firearms. A Catholic in Virginia who “desire[d] to
submit and conform” could “present himself before the justices
of the peace,” and upon taking a loyalty oath “in open court,”
would “thenceforth be discharged of and from all disabilities
and forfeitures, which he might or should be liable to for the
future.”45 Similarly, a Catholic in Maryland who persuaded a
local justice of the peace that he was law-abiding and not
dangerous could keep weapons necessary for the defense of his
home.46 But Catholics under these regimes had to
affirmatively regain their right to possess arms before violating
44 An Act for Disarming Papists, and Reputed Papists, Refus-
ing to Take the Oaths to the Government, reprinted in 7 The
Statutes at Large; Being A Collection of All the Laws of Vir-
ginia 35–38 (William W. Hening ed., 1820) [hereinafter Va.
Act of 1756].
45 Id. at 38 (emphasis added).
46 Md. Act of 1756, supra note 41, at 448.

-- 85 of 164 --

21
the disarmament law. Those discovered possessing firearms
without first lifting their firearm disability would be arrested,
imprisoned without bail, forced to forfeit all their weapons, and
subjected to onerous fines.47 In short, the restoration of
armament rights during the Colonial era occurred through pre-
enforcement actions, which provided prospective relief to law-
abiding challengers who complied with the disarmament law
and demonstrated that they did not pose a risk of misusing
arms.
c. Revolutionary War
As the colonies became independent states, legislatures
continued to disarm individuals whose status indicated that
they could not be trusted to obey the law. John Locke—a
philosopher who profoundly influenced the American
revolutionaries48—argued that the replacement of individual
judgments of what behavior is acceptable with communal
47 Id. (proclaiming that a Catholic who violated the disarma-
ment law “shall forfeit and lose . . . his Heirs and Successors,
his and their said Armour, Gunpowder, and Ammunition; and
shall also be imprisoned”); see also Va. Act of 1757, supra
note 44, at 37 (punishing non-oath taking Catholics with for-
feiture of all their arms and ammunition, imprisonment without
bail, and fines); Pa. Act of 1757, supra note 43, at 627 (impos-
ing forfeiture and imprisonment without bail).
48 See Thad W. Tate, The Social Contract in America, 1774–
1787: Revolutionary Theory as a Conservative Instrument, 22
Wm. & Mary Q. 375, 376 (1965); see also Gundy v. United
States, 588 U.S. 128, 153 (2019) (Gorsuch, J., dissenting) (ob-
serving “John Locke [was] one of the thinkers who most influ-
enced the framers[]”).

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22
norms is an essential characteristic of the social contract.49
Members of a social compact, he explained, therefore have a
civic obligation to comply with communal judgments
regarding proper behavior.50
Drawing on Locke, state legislatures conditioned their
citizens’ ability to keep arms on compliance with that civic
obligation, and several states enacted statutes disarming all
those who refused to recognize the sovereignty of the new
nation.51 In Connecticut, for instance, as tensions with England
rose, concerns that loyalists could not be trusted to uphold their
civic duties as members of a new state culminated in a 1775
statute that forbid anyone who defamed resolutions of the
Continental Congress from keeping arms, voting, or serving as
a public official.52
49 See John Locke, Two Treatises of Government § 163
(Thomas I. Cook ed., Hafner Press 1947) (reasoning “there
only is political society where every one of the members hath
quitted his natural power [to judge transgressions and] resigned
it up into the hands of the community”).
50 Locke grounded that duty in the consent of those within a
political society; however, he argued that mere presence in a
territory constitutes tacit consent to the laws of the reigning
sovereign. See id. § 119.
51 See Robert H. Churchill, Gun Regulation, the Police Power,
and the Right to Keep Arms in Early America: The Legal Con-
text of the Second Amendment, 25 Law & Hist. Rev. 139, 158
(2007).
52 G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev.
273, 282 (1899) (describing this resolution as “a fair sample of
most of the others passed at this time”).

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23
In 1776, most of the states heeded the Continental
Congress’s call to disarm those who “are notoriously
disaffected to the cause of America, or who have not
associated, and shall refuse to associate, to defend, by arms,
the[] United Colonies, against the hostile attempts of the
British fleets and armies,”53 by disarming those who did not
take a loyalty oath or were suspected of being disloyal.54
53 4 Journals of the Continental Congress, 1774–1789, at 205
(Worthington C. Ford ed., 1906).
54 See United States v. Jackson, 110 F.4th 1120, 1126–27 (8th
Cir. 2024); see, e.g., Act of May 1, 1776, ch. 21, §§ 1–2, re-
printed in 5 Acts and Resolves, Public and Private, of the Prov-
ince of Massachusetts Bay 479–80 (1886) (requiring every
non-Quaker “male person above sixteen years of age” to take
an oath of loyalty and disarming those who refused of “all such
arms, ammunition and warlike implements, as, by the strictest
search, can be found in his possession or belonging to him”)
[hereinafter Mass. Act of 1776]; Act of 1776, reprinted in 7
Records of the Colony of Rhode Island and Providence Plan-
tations in New England 566–67 (John R. Bartlett ed., 1862)
(disarming every male above sixteen years of age who refused
to take an oath of loyalty without providing “satisfactory rea-
sons” for their refusal) [hereinafter R.I. Act of 1776]; Act of
May 5, 1777, ch. 3, reprinted in 9 The Statutes at Large; Being
a Collection of all the Laws of Virginia 281–82 (William W.
Hening ed., 1821) (disarming “all free born male inhabitants of
this state, above the age of sixteen years, except imported serv-
ants during the time of their service” who refused to swear their
“allegiance” to the state) [hereinafter Va. Act of 1777]; Act of
Nov. 15, 1777, ch. 6, § 9, 1777 N.C. Sess. Laws 231–32 (de-
claring that “all persons failing or refusing to take the oath of

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24
George Washington approved of these disarmament laws and
stated that “the other colonies ought to adopt similar”
measures.55
Pennsylvania in particular passed a flurry of laws
disarming entire groups whose status suggested they could not
be trusted to follow the law. In 1776, Pennsylvania ordered the
blanket disarmament of all “non-associators,” regardless of
whether they were disaffected to the cause of liberty.56 The
allegiance” that were not exiled “shall not keep guns or other
arms within his or their House” and that any such weapons
“may be seized by a written Order of a justice of the county”)
[hereinafter N.C. Act of 1777]; Resolution of Mar. 13, 1776,
in Journal of the Provincial Congress of South Carolina, 1776,
at 77–78 (1776) (disarming convicted non-associators unless
and until they took a loyalty oath) [hereinafter S.C. Res. of
1776]; Act of Sept. 20, 1777, ch. 40, § 20, in Acts of the Gen-
eral Assembly of the State of New-Jersey 90 (1777) (directing
the Council of Safety to “deprive and take from such Persons
as they shall judge disaffected and dangerous to the present
Government, all the Arms, Accoutrements and Ammunition
which they own or possess”).
55 Letter from George Washington to Governor Cooke (Jan. 6,
1776), in 3 The Writings of George Washington 323
(Worthington C. Ford ed., 1889).
56 Act of July 19, 1776, reprinted in 9 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 11 (James T. Mitchell &
Henry Flanders eds., 1903) (ordering local officials to “take all
the arms . . . which are in the hands of non-associators in the
most expeditious and effectual manner”); Churchill, supra note
51, at 160 n.52 (“Pennsylvania ordered the blanket

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25
following year, it gave all adult males an ultimatum—swear a
loyalty oath or “be disarmed” by local authorities.57 In 1778,
Pennsylvania amended the act to require all adult males who
refused or neglected to take an oath to “deliver up [their] arms”
to the state.58 Those who failed to comply and were caught
“carry[ing] . . . or keep[ing] any arms or ammunition in [their]
house or elsewhere” faced forfeiture of their arms and
disarmament which “continue[d] for and during the life of the
. . . offender.”59 Finally, in 1779, it authorized local officials
to disarm “any person” they “suspected to be disaffected to the
independence of this state.”60
These statutes are especially illuminating because
Pennsylvania’s 1776 constitution strongly protected the
disarmament of non-associators, dropping its [ ] distinction be-
tween the disaffected and well affected.”).
57 Act of June 13, 1777, reprinted in 9 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 110–13 (James T. Mitchell
& Henry Flanders eds., 1903) [hereinafter Pa. Act of 1777].
58 Act of Apr. 1, 1778, reprinted in 9 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 238–39, 242 (James T.
Mitchell & Henry Flanders eds., 1903) [hereinafter Pa. Act of
1778].
59 Id. at 242–43; see also Joseph Blocher & Caitlan Carberry,
Historical Gun Laws Targeting “Dangerous” Groups and
Outsiders, (manuscript at 9), https://papers.ssrn.com/sol3/pa-
pers.cfm?abstract_id=3702696 (explaining that “Pennsylvania
amended the act” in 1778 to make disarmament permanent).
60 Act of Mar. 31, 1779, reprinted in 9 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 347–48 (James T. Mitchell
& Henry Flanders eds., 1903).

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26
people’s right to bear arms.61 See Heller, 554 U.S. at 600–01
(relying on Pennsylvania’s “analogous arm-bearing right[]” to
“confirm[]” its interpretation of the Second Amendment);
Williams, 113 F.4th at 654 n.11 (“As of 1776, the Pennsylvania
Constitution protected the right to keep and bear arms, so pre-
Founding examples from that state are highly probative of the
federal right’s scope.”). Nonetheless, Pennsylvania deprived
sizable numbers of pacifists of that right, including Quakers,
Moravians, Mennonites, and other groups whose religious
convictions prohibited oath-taking.62 Those groups were not
disarmed because they were dangerous,63 but because their
refusal to swear allegiance demonstrated an unwillingness to
submit to communal judgments embodied in law when they
conflicted with personal conviction and thus posed a special
61 PA. Const. of 1776, Decl. of Rights, art. XIII (“That the peo-
ple have a right to bear arms for the defence of themselves and
the state.”); C. Kevin Marshall, Why Can’t Martha Stewart
Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 724 (2009).
62 See Jim Wedeking, Quaker State: Pennsylvania’s Guide to
Reducing the Friction for Religious Outsiders Under the Es-
tablishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006); see
also Thomas C. McHugh, Moravian Opposition to the Penn-
sylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965)
(M.A. thesis, Lehigh University) (on file with the Lehigh Pre-
serve Institutional Repository).
63 See Heller, 554 U.S. at 590 (“Quakers opposed the use of
arms not just for militia service, but for any violent purpose
whatsoever . . . .”); Johnson et al., supra note 30, at 301 (noting
that states disarmed “Quakers and other pacifists; although
they were not fighters, they did own guns for hunting”).

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27
risk of danger.64 Only those who affirmatively established that
they were indeed law-abiding by swearing a loyalty oath before
state authorities had their firearm rights prospectively
restored.65
These class-wide disarmament statutes from the
Revolutionary War era shared three characteristics with the
group-based disarmament laws of the past. First, Revolution-
era legislatures categorically disarmed entire groups of people
believed to be dangerous, likely to misuse firearms, or inclined
to behave unlawfully. These broad generalizations inevitably
led to under- and over-inclusive regulatory schemes.
Pennsylvania’s loyalty oath, for example, failed to ferret out
Benedict Arnold’s treachery66 while simultaneously
precluding many peaceful and non-dangerous people from
possessing arms.
Second, individuals disarmed by these revolutionary-
period statutes could prospectively regain their rights by
proving to a government official that they no longer posed a
danger of misusing firearms. In Connecticut, persons reported
as “inimical” to the revolutionary cause were “disarmed and
not allowed to have or keep any arms,” but only until they
persuaded the local “civil authority, selectmen, and committees
of inspection” that they were “friendly to this and the other
64 See Wedeking, supra note 62, at 51–52 (describing how
Quakers were “penal[ized] for allegiance to their religious
scruples over the new government”).
65 Pa. Act of 1777, supra note 57, at 111–13.
66 See United States v. Jackson, 85 F.4th 468, 476 (8th Cir.
2023) (Stras, J., dissenting from the denial of rehearing en
banc).

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28
United Colonies.”67 Suspected non-associators in South
Carolina who successfully “convince[d]” the committee on
safety that they “sincerely desire[d] to join in support of the
American cause” would have their “arms . . . restored.”68 Non-
associators in Massachusetts could have their right to bear arms
restored by “order of” the “general court” or “committees of
correspondence, inspection or safety.”69 Males older than
sixteen in New Hampshire could retain their arms despite
failing to take a loyalty oath if they provided the legislature
with “satisfactory reasons” for their refusal,70 while males in
Pennsylvania, Virginia, and North Carolina who were initially
disarmed for refusing to take a loyalty oath could regain their
right to bear arms by affirmatively seeking out a justice of the
peace and taking a loyalty oath, thereby proving that they were
no longer dangerous, disloyal, or untrustworthy.71
Third, the burden was on members of a disarmed class
to rebut the class-wide presumption of firearm misuse before
possessing a firearm, and those who violated disarmament laws
without first satisfying the steps to lift their disability
prospectively faced serious consequences. For example, a
disaffected South Carolinian who was “found in possession of
67 Act of Dec. 1775, reprinted in 15 The Public Records of the
Colony of Connecticut From May, 1775 to June 1776, at 193
(Charles J. Hoadly ed., 1890) [hereinafter Conn. Act of 1775].
68 S.C. Res. of 1776, supra note 54, at 78.
69 Mass. Act of 1776, supra note 54, at 484; see Churchill, su-
pra note 51, at 159.
70 R.I. Act of 1776, supra note 54, at 567.
71 See Va. Act of 1777, supra note 54, at 282–83; N.C. Act of
1777, supra note 54, at 231–32; Pa. Act of 1777, supra note
57, at 112–13.

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29
arms or ammunition” without first having his rights restored by
a legislative committee would “again be disarmed” and, this
time, also imprisoned.72 And statutorily disarmed males in
Pennsylvania who were caught in possession before having
taken a loyalty oath before a justice of the peace were
imprisoned, “prosecute[d],” required to “forfeit [their] arms
and ammunition to the state,” fined “double the value” of their
forfeited possessions, and disarmed for “life.”73
d. Ratification Debates
It is apparent from the debates around ratification that
the Founders believed the Second Amendment permitted
legislatures to disarm serious criminals.
The debates between the Federalists and Anti-
Federalists in Pennsylvania “were among the most influential
and widely distributed of any essays published during
ratification.”74 Those essays included “The Dissent of the
Minority,” a statement of the Anti-Federalist delegates’
views75 that proved “highly influential” for the Second
72 S.C. Res. of 1776, supra note 54, at 78.
73 Pa. Act of 1778, supra note 58, at 242–43 (declaring that “all
disabilities and incapacities which any person . . . shall incur
or be liable to by reason of [the disarmament acts] shall be and
continue for and during the life of the delinquent or offender”).
74 Saul Cornell, Commonplace or Anachronism: The Standard
Model, the Second Amendment, and the Problem of History in
Contemporary Constitutional Theory, 16 Const. Comment.
221, 227 (1999).
75 See id. at 232–33.

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30
Amendment.76 Heller, 554 U.S. at 604. The Dissent of the
Minority proposed an amendment stating:
[T]he people have a right to bear
arms for the defence of themselves
and their own State or the United
States, or for the purpose of killing
game; and no law shall be passed
for disarming the people or any of
them unless for crimes committed,
or real danger of public injury from
individuals.77
And, at the Massachusetts convention, Samuel Adams, a
prominent Anti-Federalist, proposed an amendment that the
Constitution shall “never [be] construed . . . to prevent the
people . . . who are peaceable citizens, from keeping their own
arms.”78 “Given the Anti-Federalists’ vehement opposition” to
76 See also Amul R. Thapar & Joe Masterman, Fidelity and
Construction, 129 Yale L.J. 774, 797 (2020) (“Although one
might question why we should listen to the debate’s ‘losers,’
the Anti-Federalist Papers are relevant for the same reason that
the Federalist Papers are: to quote Justice Scalia, ‘their writ-
ings, like those of other intelligent and informed people of the
time, display how the text of the Constitution was originally
understood.’ Plus, the Anti-Federalists did not exactly ‘lose,’
in the same way in which a party who settles a case but gets
important concessions does not ‘lose’ the case.” (quoting An-
tonin Scalia, A Matter of Interpretation: Federal Courts and
the Law 38 (Amy Gutmann ed., 1997))).
77 2 Bernard Schwartz, The Bill of Rights: A Documentary His-
tory 665 (1971) (emphasis added).
78 Id. at 675, 681 (emphasis added).

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31
federal power, it is particularly “revealing” that even they
understood that government could disarm criminals and
dangerous people. Adoptive Couple v. Baby Girl, 570 U.S.
637, 664 (2013) (Thomas, J., concurring).
While these amendments were not adopted,79 they
“reveal a great deal about the Second Amendment.” Williams,
113 F.4th at 655; see Heller, 554 U.S. at 604 (relying on the
“minority proposal in Pennsylvania” and “Samuel Adams’
proposal”). The Second Amendment codified a “pre-existing,”
“venerable,” and “widely understood” right, making it unlikely
that “different people of the founding period had vastly
different conceptions” of its scope. Heller, 554 U.S. at 603–
05. The Anti-Federalist proposals thus reflect the
understanding of the Founding generation—particularly
among those who favored enshrining the right to bear arms in
the Constitution—that “crimes committed,” whether
dangerous or not, justified disarmament.80
79 The Federalists, who considered a bill of rights unnecessary,
defeated the Pennsylvania proposal, while the Massachusetts
ratifying convention rejected Adams’s proposal because he had
waited until the morning of ratification to present it. See Letter
from Jeremy Belknap to Ebenezer Hazard (Feb. 10, 1788), in
7 Documentary History of the Ratification of the Constitution
1583 (John P. Kaminski et al. eds., 2001).
80 See Stephen P. Halbrook, The Founders’ Second Amend-
ment: Origins of the Right to Bear Arms 273 (2008) (explain-
ing that the Founders “did not object to the lack of an explicit
exclusion of criminals from the individual right to keep and
bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”); Don

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32
e. Post-Ratification Tradition
The historical tradition of legislatures disarming
categories of people whom they considered unfit to possess
firearms continued into the nineteenth century.81 As the
concerns from the Revolutionary War faded into the past, so
did the disarmament laws targeting perceived disloyal
Americans. But the pernicious tradition of prohibiting slaves
and Native Americans from possessing firearms persisted,82
and as worries of slave uprisings grew, many citizens feared
that freedmen were untrustworthy or inclined to misuse
firearms. See Williams, 113 F.4th at 656. Antebellum era
B. Kates, Jr., Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1983)
(“Nor does it seem that the Founders considered felons within
the common law right to arms or intended to confer any such
right upon them. All the ratifying convention proposals which
most explicitly detailed the recommended right-to-arms
amendment excluded criminals and the violent”).
81 As Rahimi makes clear, post-ratification history, at least
when it is consistent with Founding-era history, is highly pro-
bative of the Second Amendment’s meaning. See supra note
16.
82 Act of 1797, ch. 43 § 6, in 1 Laws of the State of Delaware
104 (1797); Act of 1798, reprinted in 2 The Statute Law of
Kentucky 113 (William Littell ed., 1810); 1804 Ind. Acts 108,
§ 4; Act of Mar. 6, 1805, reprinted in A Digest of the Laws of
the State of Alabama 627 (Harry Toulmin ed., 1823); Act of
June 7, 1806, reprinted in 1 A New Digest of the Statute Laws
of the State of Louisiana 50 (Henry A. Bullard & Thomas
Curry eds., 1842); 1805 Miss. Laws 90, § 4.

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33
legislatures responded with a familiar tactic—disarming
freedmen on a class-wide basis.83
Like the earlier categorical bans, these statutes
unquestionably swept in many peaceable, trustworthy, and
law-abiding Americans who posed no danger of misusing their
firearms. A few were absolute,84 but nearly all of these laws
allowed a freedman to make an individualized showing that he
was not apt to misuse firearms, and, if successful, to receive a
certificate or a license restoring his right to possess arms.85
83 See, e.g., infra notes 84–91.
84 See, e.g., Act of Feb. 17, 1833, reprinted in Compilation of
the Public Acts of the Legislative Council of the Territory of
Florida, Passed Prior to 1840, at 65 (John P. Duval ed., 1839);
1850 Ky. Acts 296, § 12; Del. Laws 332, § 7 (1863).
85 See, e.g., Act of Dec. 1792, reprinted in 1 Collection of All
Such Acts of the General Assembly of Virginia 187 (1803) (de-
claring that no freedman “shall keep or carry any gun . . . or
other weapon whatsoever,” but “permit[ing them] to keep and
use guns, powder, shot, and weapons offensive or defensive,
by license from a Justice of Peace of the County”); Act of Oct.
1, 1804, §§ 4–5, reprinted in Laws of Arkansas Territory 521
(J. Steele & J. M’Campbell, eds., 1835) (same); Act of Oct. 1,
1804, §§ 4–5, in Laws for the Government of the District of
Louisiana 108 (1804) (same); Act of Oct. 1, 1804, §§ 4–5, re-
printed in Digest of the Laws of the Missouri Territory 374
(Henry Geyer ed., 1818) (same); Little Rock City Ordinance,
in Arkansas Gazette, Jan. 12, 1836, at 1 (allowing any freed-
man “to keep one gun and ammunition therefor, by obtaining
a license for that purpose from the City Court, which license
may be granted upon giving bond and security for good behav-
ior”).

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34
Delaware, for example, made it unlawful for a freedman to
“have, own, keep or possess any gun, pistol, sword or any
warlike instruments whatsoever.”86 But a freedman could seek
the resumption of that right by submitting an application to the
local justice of the peace, and if “five or more respectable and
judicious citizens” certified that the freedman was a “person of
fair character,” the justice of the peace could “issue a license”
authorizing the freedman to “keep or possess” a gun.87 In
Florida, a local judge could grant a freedman’s application if
“two respectable citizens of the county [certified] to the
peaceful and orderly character of the applicant.”88 And a
freedman in Maryland could possess a firearm if “at the time
of his” possession, he had “a certificate from a justice of the
peace, that he is an orderly and peaceable person.”89
Also consistent with the prior categorical disarmament
laws, restoration under these Antebellum regimes was always
prospective, and freedmen had to demonstrate that they did not
fit the class-wide generalization of misusing firearms before
possessing a firearm in violation of a disarmament statute.90 If
86 Del. Laws 180–81, § 1 (1832).
87 Id.
88 1865 Fla. Laws 25, § 12.
89 1806 Md. Laws 44–45, § 2.
90 See 1805 Va. Acts 51, §§ 1–3 (prohibiting freedmen from
“keep[ing] or car[rying] any firelock of any kind, any military
weapon, or any powder or lead, without first obtaining a li-
cense” from the court); 1806 Md. Laws 44–45, § 2 (prohibiting
a freedman from “carrying a gun” unless “at the time of his
carrying the same, [he has] a certificate from a justice of the
peace, that he is an orderly and peaceable person”); 1837 Ark.

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35
a freedman was caught possessing a firearm without first
having his disability lifted by an executive or judicial officer,
he would be arrested, imprisoned, fined, and forced to forfeit
all his arms and ammunition.91 In short, restoration was limited
to pre-enforcement actions brought by law-abiding freedmen.
Acts 587, § 17 (“No free[dman] shall be [allowed] to keep or
carry any gun or rifle, or weapon of any kind, or any ammuni-
tion without a license first had and obtained, for that purpose,
from some justice of the peace.”); 1854–55 Mo. Laws 1094, §
2 (prohibiting a freedman from “keep[ing] or carry[ing] any
firelock, or weapon of any kind, or any ammunition, without a
license first had and obtained for the purpose, from a justice of
the peace”); 1840–41 N.C. Sess. Laws 61–62 (“[I]f any . . . free
Person of colour shall wear or carry about his or her person, or
keep in his or her house, any Shot-gun, Musket, Rifle, Pistol,
Sword, Dagger or Bowie-knife, unless he or she shall have ob-
tained a license therefor from the Court of Pleas and Quarter
Sessions of his or her County, within one year preceding the
wearing, keeping or carrying thereof, he or she shall be guilty
of a misdemeanor, and may be indicted therefor.”).
91 1805 Va. Acts 51, §§ 1–3 (ordering “every constable to give
information against, and prosecute every free[dman] who shall
keep or carry any arms or ammunition . . . without first obtain-
ing a license” and requiring a convicted freedman to “forfeit
all such arms and ammunition” upon conviction); 1806 Md.
Laws 44–45, § 2 (requiring a freedman to who was caught “car-
rying” arms without a “certificate from a justice of the peace”
to “forfeit” his arms and pay a fine); Del. Laws 181, § 2 (1832)
(authorizing justices of the peace to arrest and punish any
freedman found “in possession of any Gun without a license or

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36
With the enactment of the Fourteenth Amendment,
religion- and race-based disarmament laws became a sordid
relic of our Nation’s past.92 Still, the tradition of disarming
permit”); 1837 Ark. Acts 587, § 18 (punishing every freedman
caught possessing “weapon[s] of any kind” without “having a
license” with “seizure” of his arms and large fines); 1854–55
Mo. Laws 1094, § 3 (same); 1865 Fla. Laws 25, §§ 12–13 (de-
claring that “any . . . person of color” who possesses “fire-arms
or ammunition of any kind” without “first obtain[ing] a license
to do so . . . shall be deemed to be guilty of a misdemeanor,
and . . . shall forfeit . . . all such fire-arms and ammunition, and
. . . be sentenced” to other punishments); see also 1840–41
N.C. Sess. Laws 61–62.
92 Although many of these laws are repugnant and would be
unconstitutional today under the 14th Amendment, Rahimi in-
structs us to determine whether § 922(g)(1) “comport[s] with
the principles underlying the Second Amendment.” 144 S. Ct.
at 1898 (emphasis added). Like the Sixth Circuit in Williams
and the Eighth Circuit in Jackson, we reference these bans only
to demonstrate the tradition of legislatures disarming people
they presumed posed a special risk of danger to the public. See
Jackson, 110 F.4th at 1127 (“While some of these categorical
prohibitions of course would be impermissible today under
other constitutional provisions, they are relevant here in deter-
mining the historical understanding of the right to keep and
bear arms.”); United States v. Williams, 113 F.4th 637, 656–57
(6th Cir. 2024) (“Classifying people as dangerous simply be-
cause of their race or religion was wrong from the beginning
and unconstitutional from 1868. Nevertheless, these pre-Four-
teenth Amendment laws provide insight into how early Amer-
icans conceived of the right to bear arms embodied in the

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37
categories of persons thought by legislatures to present a
“special danger of [firearm] misuse,” Rahimi, 144 S. Ct. at
1901, continued into the Reconstruction Era and the Gilded
Age. Most states restricted the sale of firearms to, or the
possession of firearms by, persons under the age of eighteen or
twenty-one.93 Over a dozen states disarmed vagrants, often
referred to as “tramps.”94 Many states prohibited drunks from
purchasing or carrying guns.95 And several states banned the
sale of arms to mentally ill persons.96
Although the “who,” “how,” and “why,” Rahimi, 144 S.
Ct. at 1898, underlying these categorical disarmament laws
somewhat differed from their historical counterparts, “19th-
century courts and commentators,” Heller, 554 U.S. at 603,
viewed these laws as constitutional. A “massively popular”
nineteenth-century treatise written by “the most famous” voice
on the Second Amendment at the time, Heller, 554 U.S. at 616,
explained that some groups were “almost universally
excluded” from exercising certain civic rights, including “the
idiot, the lunatic, and the felon, on obvious grounds,” and that
states “may prohibit the sale of arms to minors.”97
These laws, like those of earlier decades, were
unquestionably overbroad. Not every freedman, drunk,
Second Amendment. The key point is that entire groups could
be presumptively disarmed.”).
93 Brief of the United States at 24 & n.16, United States v.
Rahimi, 144 S. Ct. 1889 (2024) (No. 22-915).
94 Id. at 25 & n.18.
95 Id. at 25–26 & n.19.
96 Id. at 24–25 & n.17.
97 Thomas, M. Cooley, Treatise on Constitutional Limitations
41, 739 n.4 (5th ed. 1883).

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38
beggar, minor, or mentally ill person had a propensity to
misuse firearms. To the contrary, many members of these
disarmed classes likely posed no greater danger of firearm
misuse than their fellow citizens who retained their armament
rights. Yet state high courts routinely upheld these categorical
disarmaments as consistent with their state constitutional rights
to bear arms,98 which were understood to be coextensive with
the Second Amendment.99 For example, despite observing that
some tramps were “less . . .vicious than others,” the Ohio
Supreme Court nonetheless found a state law categorically
disarming “tramps” consistent with the state constitutional
right to keep and bear arms because the right “was never
intended as a warrant for vicious persons to carry weapons with
which to terrorize others.” State v. Hogan, 58 N.E. 572, 575
(Ohio 1900).
In sum, these post-ratification laws, like the colonial
ones preceding them, show that legislatures were empowered
to disarm entire groups based on prevailing judgments about
which categories of people posed “a special danger of
98 See, e.g., State v. Shelby, 2 S.W. 468, 469 (Mo. 1886) (up-
holding a ban on carrying arms while intoxicated as a “reason-
able regulation” that prevented the “mischief to be appre-
hended from an intoxicated person going abroad with fire-
arms”); State v. Callicutt, 69 Tenn. 714, 716–17 (1878) (con-
cluded that a state law “prevent[ing] the sale, gift, or loan of a
pistol or other like dangerous weapon to a minor [was] not only
constitutional as tending to prevent crime but wise and salutary
in all its provisions”).
99 See Baude & Leider, supra note 28, at 1472 (“[I]n the context
of the right to bear arms, courts treated . . . state and federal
constitutional provisions as approximately equivalent.”).

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39
misu[ing]” firearms. Rahimi, 144 S. Ct. at 1901. Although the
targeted groups changed over time, as did the legislatures’
precise calculus for disarming them, the three features of those
colonial-era laws remained constant. First, every categorical
disarmament law was overbroad—sweeping in law-abiding
people who were not dangerous, violent, untrustworthy, or
unstable—yet they comported with the Second Amendment.
Second, these laws almost universally provided some
mechanism for members of a disarmed class to prospectively
lift their disability by persuading an executive or judicial
official that the class-wide presumption of likely firearm
misuse did not apply to them. Third, if a member of a disarmed
class violated these disarmament laws without first
affirmatively lifting the disability, he was penalized
accordingly. Thus, prospective relief was limited to those who
abided by the ban unless and until demonstrating that they no
longer (if ever) presented a special danger to others.
2. Criminal Punishment
Rahimi teaches that if a greater deprivation of rights was
permissible as a penalty for an offense in the relevant past, the
“lesser restriction” of disarmament is also permissible in a
modern-day regulation. See 144 S. Ct. at 1902. With that pre-
cept in mind, the numerous historical laws punishing non-vio-
lent, as well as violent, felons with death, life imprisonment,
estate forfeiture, and permanent loss of certain other civil rights
show that an indefinite deprivation of the right to bear arms is

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40
a permissible consequence of a felony conviction within our
historical tradition.
a. English Law and Colonial America
In eighteenth-century England, the standard penalty for
a felony—even for non-violent felonies like fraud and
forgery—was death and forfeiture of land, goods, and chattels,
and executed felons traditionally forfeited all their firearms, as
well as the rest of their estate, to the government.100 That
practice persisted in the American colonies and the Early
Republic—those who committed serious felonies, both violent
and non-violent, were executed and subject to permanent estate
forfeiture.101
Individuals who committed less serious crimes also lost
their firearms on a temporary, if not permanent, basis. Virginia
punished a person convicted for “base” and “opprobrious”
speech by ordering him “disarmed” and declaring him
ineligible to exercise “any priviledge or freedom” in the
colony.102 The Massachusetts Bay Colony disarmed
individuals for merely supporting someone who was convicted
100 See 4 William Blackstone, Commentaries on the Laws of
England 54, 97–98, 389 (1769); id. at 155, 162 (listing fraud-
ulent bankruptcy and forging a marriage license as such felo-
nies).
101 See Bucklew v. Precythe, 587 U.S. 119, 129 (2019)
(“[D]eath was ‘the standard penalty for all serious crimes’ at
the time of the founding.”) (quoting Stuart Banner, The Death
Penalty: An American History 23 (2002)); Baze v. Rees, 553
U.S. 35, 94 (2008) (Thomas, J., concurring).
102 Konig, supra note 31, at 371.

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41
of a crime.103 One New York law “disarmed” anyone who was
“convicted” of “oppos[ing] or deny[ing]” colonial or local
authority, or “dissuad[ing]” others “from obeying the
recommendations” of the Continental or colonial Congress,104
while another punished those who counterfeited state bills of
credit with life imprisonment and the forfeiture of their entire
estate, including firearms.105 South Carolina “disarmed”
persons “upon due conviction” of “opposing the measures of
the Continental or Colony Congress.”106 In Hampshire
County, Massachusetts, “all persons . . . convicted of being
notoriously inimical to the cause of American Liberty” were
“disarmed.”107 And in Connecticut, anyone “duly convicted”
of “libel[ing] or defam[ing]” any acts of the Continental
Congress or the Connecticut General Assembly was “disarmed
and not allowed to have or keep any arms.”108
Alternatively, where legislatures stipulated that certain
offenses were not punishable by death or life imprisonment,
103 See supra notes 32–36 and accompanying text (explaining
how supporters of Anne Hutchinson, who was convicted for
criticizing the colony’s clergy’s legalistic interpretation of the
Bible, were disarmed).
104 Resolutions of Sept. 1, 1775, reprinted in 1 Journals of the
Provincial Congress, Provincial Convention, Committee of
Safety and Council of the State New-York 132 (1842).
105 Act of Apr. 18, 1786, reprinted in 2 Laws of the State of
New York Passed at the Sessions of the Legislature 1785–1788,
at 253, 260–61 (1886) [hereinafter N.Y. Act of 1786].
106 S.C. Res. of 1776, supra note 54, at 77.
107 Resolution of July 25–26, 1776, in 1 American Archives:
Fifth Series 588 (Peter Force ed., 1848)
108 Conn. Act of 1775, supra note 67, at 193.

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42
but rather forfeiture,109 the offender was stripped of his then-
existing estate, including any firearms,110 and only upon
successfully serving of his sentence and reintegrating into
society could he presumably repurchase arms.111 Even minor
infractions were often punished with the seizure of firearms
involved in the offense.112
Of particular relevance are the Founding-era felonies
most similar to Range’s crime of defrauding the government—
forgery, counterfeiting, fraud, and theft—which, in many
109 See Moore, 111 F.4th at 270–72 (collecting historical for-
feiture laws).
110 See, e.g., Act of Apr. 5, 1790, reprinted in 13 Statutes at
Large of Pennsylvania 511, 511–12 (James T. Mitchell &
Henry Flanders eds., 1908) (providing for “forfeit[ure of] all
. . . goods and chattels . . . possessed at the time the crime was
committed and at any time afterwards”).
111 As this Court has recognized, “the early American forfeiture
laws . . . yield the principle that a convict may be disarmed
while he completes his sentence and reintegrates into society.”
Moore, 111 F.4th at 272.
112 For example, individuals who hunted in certain prohibited
areas had to forfeit any weapons used in the course of that vi-
olation. See, e.g., Ordinance of Oct. 9, 1652, reprinted in Laws
and Ordinances of New Netherland 1638–1674, at 138 (E.B.
O’Callaghan ed., 1868); Act of Apr. 20, 1745, in 23 Acts of the
North Carolina General Assembly, 1745, at 218, 219 (1805);
1771 N.J. Laws 19–20; 1832 Va. Acts 70; 1838 Md. Laws
291–92; 12 Del. Laws 365 (1863).

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43
jurisdictions, were punishable by death from the Colonial era
through the Revolutionary War.113
Although the majority suggests that the death penalty
soon fell out of use for such offenses,114 historical records show
otherwise. In 1790, the First Congress made counterfeiting and
forgery capital offenses.115 On December 14, 1792, within a
year of the ratification of the Bill of Rights, Georgia passed an
“An Act for the More Effectually Preventing and Punishing
Forgery,” which penalized fraud, counterfeiting, and forgery
113 See Maj. Op. at 14, 22; see, e.g., A Digest of the Laws of
Maryland 255 (Thomas Herty ed., 1799) (punishing forgers
with “death as a felon, without benefit of clergy”); Acts and
Laws of The English Colony of Rhode Island and Providence-
Plantations in New-England in America 33–34 (1767) (punish-
ing any person convicted of forging or counterfeiting bills of
credit with “Pains of Death”); 10 Statutes at Large of Pennsyl-
vania 307, 384 (James T. Mitchell & Henry Flanders eds.,
1904) (making forgery and counterfeiting capital crimes in
1781); Acts of the General Assembly of the State of New Jersey
8, 136 (Peter Wilson ed., 1784) (listing counterfeiting and theft
as capital offenses); see generally Banner, supra note 101, at
7–8; Kathryn Preyer, Penal Measures in the American Colo-
nies: An Overview, 26 Am. J. Legal Hist. 326, 337, 340, 342,
343, 344, 348 (1982) (detailing capital punishment for non-vi-
olent offenses in Massachusetts, Pennsylvania, Virginia, and
New York).
114 See Maj. Op. at 14–15.
115 See Act of April 30, 1790, ch. 9, § 14, 1 Stat. 112, 115
(“every such person” convicted of forgery, dealing in forged
securities, or counterfeiting “shall suffer death”).

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44
with death.116 Five days later, the General Assembly of
Virginia passed an “Act[] for Punishing Persons Guilty of
Certain Thefts and Forgeries,” which added forgery,
counterfeiting, and theft to the list of nonclergyable capital
offenses.117 In New York, people convicted of counterfeiting,
forgery, and larceny continued to “suffer death as a felon” for
years after the Second Amendment’s ratification.118 In 1796,
New Jersey declared that anyone convicted of forgery for a
second time “shall suffer death.”119 And at the turn of the
nineteenth century, forgery and counterfeiting remained capital
crimes in the first instance in Maryland and North Carolina,120
116 A Digest of the Laws of the State of Georgia 467–68 (1800);
see also id. at 181, 342–43, 449.
117 A Collection of All Such Acts of the General Assembly of
Virginia, of a Public or Permanent Nature, as are Now in
Force 260–61 (1794). Two years later, Virginia doubled
down, clarifying that anyone convicted of forging or counter-
feiting, or assisting in the forging or counterfeiting, of “any
deed, will, testament, bond, writing obligatory, bill of ex-
change, promissory note . . . or other valuable thing . . . shall
suffer death as a felon without benefit of clergy.” Id. at 333.
118 2 Laws of the State of New York 41–42, 74 (1792). Between
1791 and 1796, New York executed at least 10 people for for-
gery. See Mark Espy, Executions in the U.S. 1608–2002,
Death Penalty Info. Ctr. 41–44, https://dpic-cdn.org/produc-
tion/legacy/ESPYyear.pdf (last visited Dec. 23, 2024).
119 An Act of Mar. 18, 1796, reprinted in Laws of the State of
New-Jersey 221 (William Paterson ed., 1800).
120 See A Digest of the Laws of Maryland, supra note 113, at
255–56; 1 The Public Acts of the General Assembly of North-
Carolina 242 (James Iredell & Francois-Xavier Martin eds.,

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45
while Alabama made forgery, counterfeiting, fraud, and other
crimes of deceit capital offenses in 1807.121
To be sure, a few states dispensed with capital
punishment for forgery, counterfeiting, and other crimes of
deceit in the decade following ratification.122 But a handful of
“outlier” laws from the Early Republic does not negate what
had become a regulatory tradition. Bruen, 597 U.S. at 70; id.
at 46 (expressing “doubt that three colonial regulations could
suffice to show a tradition”). And concluding from the laws of
a few more lenient jurisdictions that the Constitution precluded
more severe penalties not only ignores the historical reality in
other jurisdictions, but also wrongly “assumes that founding-
era legislatures maximally exercised their power to regulate.”
Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring).
Regardless, the inference drawn by the majority from
this history—that Founding-era legislatures lacked authority to
permanently punish non-violent felons—is mistaken. Instead,
the statutes cited by the majority prove that even when the most
progressive states in our Early Republic dispensed with the
death penalty for certain crimes, they continued to exercise their
authority to permanently punish non-violent felons. For
example, Connecticut, as the majority points out, ended capital
punishment for counterfeiting and forgery in 1784.123 But
rather than being executed, twice-convicted forgers and
1804); Banner, supra note 101, at 139 (explaining that coun-
terfeiting and horse stealing remaining capital offenses in Mar-
yland until 1809).
121 A Digest of the Laws of the State of Alabama 210–11 (Harry
Toulmin ed., 1823).
122 See Maj. Op. at 14–15, 15 n.4.
123 See id.

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46
counterfeiters in Connecticut were imprisoned and “kept to
hard Labour during the Term of his or her natural Life,” while
Connecticut continued to punish other non-violent crimes like
perjury with death.124 New York likewise experimented with
eliminating capital punishment for these non-violent crimes.
In 1786, its legislature passed a law punishing those who
counterfeited state bills of credit with life imprisonment and
complete estate forfeiture.125 But it reversed course just two
years later and reinstated capital punishment for all
counterfeiters.126 For forgery, New York also “chang[ed] the
punishment . . . from death into imprisonment for life” in 1796,
but again, “the legal consequences of the conviction, as to
disability . . . remained the same. The party was incapacitated,
forever” from exercising his Second Amendment rights
because a felon sentenced to life in prison was “deemed to be
124 Acts and Laws of the State of Connecticut in America 24, 66
(1784). When Connecticut updated its criminal codes in 1796,
theft, forgery, fraud, counterfeiting, and perjury continued to
be subject to permanent punishment. See Acts and Laws of the
State of Connecticut in America 184 (1796) (establishing that
a thrice-convicted thief, forger, counterfeiter, or user of coun-
terfeit coins would be “imprison[ed]” for the duration of “his
natural life”); id. at 182 (listing perjury as a capital offense).
125 N.Y. Act of 1786, supra note 105, at 260–61 (declaring that
anyone convicted of counterfeiting or altering a newly minted
bill of credit or knowingly using a counterfeited or altered bill
of credit “shall forfeit all his or her estate both real and personal
to the . . . State, and be committed to the [city jail] for life, and
there confined to hard labor”).
126 See An Act for Preventing and Punishing Forgery and
Counterfeiting (Feb. 7, 1788), reprinted in 2 Laws of the State
of New York 41–42 (1792).

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47
civilly dead, to all intents and purposes.”127 So even the laws
cited by the majority confirm that early legislatures had the
flexibility to punish non-violent felons in a variety of ways, up
to and including physical and civil death, both of which
permanently extinguished the felon’s civil rights. See Folajtar
v. Att’y Gen., 980 F.3d 897, 920 (3d Cir. 2020) (Bibas, J.,
dissenting).
b. Post-Ratification Tradition
As the Nation’s footprint expanded to the south and the
west, legislative authority to permanently disarm non-violent
criminals followed in tow. Although some states continued to
execute thieves, counterfeiters, forgers, and fraudsters until the
mid-nineteenth century,128 other legislatures, during the Era of
Good Feelings, transitioned to stripping these non-law-abiding
citizens of fundamental rights.
In 1820, one of the Nation’s early leading lawyers and
“best known” proponents of abolishing capital punishment,
127 Troup v. Wood, 4 Johns. Ch. 228, 247–48 (N.Y. Ch. 1820);
see also Kanter, 919 F.3d at 459 (Barrett, J., dissenting) (“Civil
death was a state in which a person ‘though living, was consid-
ered dead’—a status ‘very similar to natural death in that all
civil rights were extinguished.’” (quoting Harry David Saun-
ders, Note, Civil Death—A New Look at an Ancient Doctrine,
11 Wm. & Mary L. Rev. 988, 988–89 (1970))).
128 South Carolina, Alabama, Georgia, Texas, and California
executed white people for counterfeiting, forgery, and theft un-
til the 1850s. See Banner supra note 101, at 18, 139–40; see
also, e.g., Espy, supra note 118, at 51, 70, 80 (forgery); id. at
56, 62 (counterfeiting); id. at 71, 94, 95 (theft); id. at 49, 50,
52, 63, 64, 93 (horse theft).

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48
Edward Livingston, was tasked with preparing a systematic
code of criminal law for Louisiana.129 At the time, Louisiana’s
laws consisted of a “medley of laws and customs” from France,
Spain, and English common law that often imposed harsh and
unequal punishments, including death for non-violent
crimes.130 Livingston’s proposed codes, which brought
“moderation to the system of crimes and punishments,”131
eliminated the death penalty for many crimes—including
forgery, perjury, and fraud. Capital punishment was replaced
with the lesser punishments of “imprisonment” and the
“suspension” and permanent “forfeiture” of “political or civil
rights”—including the “right of bearing arms.”132 Under
Livingston’s code of punishments, those convicted of perjury
and forgery were permanently disarmed, while fraudsters lost
their armament rights for only five years.133
129 Banner, supra note 101, at 138.
130 Elon H. Moore, The Livingston Code, 19 J. Am. Inst. Crim.
L. & Criminology 344, 345 (1928).
131 Carleton Hunt, Life and Services of Edward Livingston 31
(1903) (emphasis added).
132 Edward Livingston, A System of Penal Law for the State of
Louisiana 377, 378 (1833); see id. at 745 (defining “political
rights” as “those which are given by the constitution” and
“civil rights” as “those which every free person is authorized,
by law, to exercise for the preservation either of his own person
[or] property”).
133 Id. at 393 (seven years’ imprisonment and permanent dis-
armament for perjury); id. at 409 (fifteen years’ imprisonment
and permanent disarmament for forgery); id. at 454 (one-year
imprisonment and five-years’ disarmament for fraudulent

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49
Many contemporaries concurred with Livingston’s
proposals to deprive convicts of only certain rights—including
the right to bear arms—instead of extinguishing all of their
rights through capital punishment. His work won wide acclaim
from such Founders as Jefferson, Madison, and Story.134 Chief
Justice Marshall, who read one of these codes “with attention
and interest,” likewise saw no constitutional concerns, writing
in a letter to Livingston: “Among your penalties a deprivation
of civil and political rights is frequently introduced. I believe
no former legislator has relied sufficiently on this provision;
and I have strong hopes of its efficacy.”135
Although Livingston’s codes were not ultimately
adopted, the Supreme Court has repeatedly relied on his
proposed model legal codes for Louisiana and then for the
United States as evidence of the types of laws that would have
been considered permissible at the Founding.136 And
interference with an inheritance). These proposals are particu-
larly notable considering Livingston’s desire to create a crimi-
nal code that was consistent with the “right[s] secured by the
constitution,” including “the right to bear arms.” Id. at 62; see
also Edward Livingston, A System of Penal Law for the United
States 19-20, 40, 79, 126 (1828) (similar provisions in model
penal code for the United States).
134 See Moore, supra note 130, at 345, 355.
135 Letter from John Marshall to Edward Livingston (Oct. 24,
1825), https://findingaids.princeton.edu/catalog/C0280_c3493.
136 See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 255 n.4
(1952) (citing Livingston’s “famous draft System of Penal law
for Louisiana” as example of historical libel laws); Cruzan v.
Dir. Mo. Dep’t of Health, 497 U.S. 261, 294 (1990) (Scalia, J.,

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50
Livingston’s proposal to punish certain non-violent felons with
permanent disarmament is consistent not only with Founding-
era penalties that explicitly or necessarily deprived non-violent
felons of their right to bear arms, but also, as social mores
continued to evolve, laws in the early 1800s that permanently
stripped non-violent felons of other fundamental rights.137
Alabama, for instance, deprived “any person . . .
convicted of bribery, forgery, [or] perjury” from exercising
several fundamental rights, including holding state office,
serving as a juror, or voting in any election.138 In Missouri,
convicted forgers, embezzlers, counterfeiters, fraudsters,
bribers, and thieves could not serve as witnesses or jurors, vote,
or hold public office.139 And while Indiana continued to punish
horse thieves and recipients of stolen horses with death, it
deprived those who committed or helped commit perjury,
concurring) (citing Livingston’s draft code for our history of
criminalizing assisted suicide).
137 Because the traditional punishment for serious crimes was
death, early legislatures had little occasion to enact laws ex-
plicitly disarming persons convicted of such crimes. Nonethe-
less, they did enact laws disarming perpetrators of a variety of
non-violent offenses. See supra notes 102–112 and accompa-
nying text.
138 Act of Nov. 17, 1819, reprinted in A Digest of the Laws of
the State of Alabama 230 (Harry Toulmin ed., 1823).
139 A Digest of the Laws of the Missouri Territory 140–45, 149–
50 (Henry Geyer ed., 1818).

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51
forgery, fraud, embezzlement, or counterfeiting of their ability
to serve in any public office, the military, or on juries.140
In sum, before, during, and for a period even after the
dawn of our Republic, felons convicted of crimes of deceit
could face death, life imprisonment, civil death, and depriva-
tion of their fundamental rights because they were presumed to
permanently pose a special risk of danger to society.141 And
the categorical disarmament laws show that legislatures could
prophylactically disarm such categories of people, subject to
individual applications for a restoration of rights.142 With those
regulatory traditions in mind, we next consider the constitu-
tionality of § 922(g)(1) as applied to Range.
C. Section 922(g)(1) as Applied to Range
No doubt, the categorical disarmament laws and felony
punishment laws are “two distinct legal regimes” and
§ 922(g)(1) “is by no means identical to these founding era
regimes.” Rahimi, 144 S. Ct. at 1899, 1901. But “it does not
need to be,” id. at 1901, because we are not looking for
“historical twin[s],” but for “principles underlying the Second
Amendment” that are “relevantly similar” to those animating
the statute now before us, id. at 1898 (citation omitted). And
“[t]aken together,” id. at 1901, those two legal regimes
demonstrate that § 922(g)(1)—with one qualification
discussed below, infra Section I.C.2—“comport[s] with the
140 Laws of the Indiana Territory 25–28, 30 (1807); Compend
of the Acts of Indiana 73, 76, 87–88 (W. Johnston ed., 1817);
Banner, supra note 101, at 131.
141 See generally supra Section I.B.2.
142 See generally supra Section I.B.1.

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52
principles underlying the Second Amendment,” id. at 1898, as
applied to Range.
1. Section 922(g)(1) Generally Comports
with Regulatory Tradition
In comparing a challenged regulation with the
principles underlying its historic analogues, “[w]hy and how
the regulation burdens the right are central to th[e] inquiry.”
Id.
As for the “why,” four centuries of unbroken Anglo-
American history shows that legislatures consistently disarmed
entire categories of people who were presumed to pose a
special risk of misusing firearms. Only after an individual
made the requisite showing to a government official—
rebutting the class-wide presumption of firearms misuse—was
the disability on the individual’s right to possess firearms
lifted. The Founding generation understood that felons—who
could be sentenced to death or life imprisonment, stripped of
their fundamental rights, including their right to arms143—were
one such group. It is no wonder that Rahimi, citing to Heller’s
assurance of the presumptive constitutionality of felon-in-
possession bans, repudiated the “suggest[ion] that the Second
Amendment prohibits the enactment of laws banning the
possession of guns by categories of persons thought by a
legislature to present a special danger of misuse.” Id. at 1901.
At the Founding, the purpose of capital punishment and
life imprisonment for certain crimes of deceit, akin to Range’s
fraud offense, “was threefold: deterrence, retribution, and
penitence.” Diaz, 116 F.4th at 469. Those purposes continued
143 See supra Section I.B.2.

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53
to animate the early nineteenth century laws stripping such
felons of other fundamental rights.144 The justification for
§ 922(g)(1)—deterring lawlessness by those categorically
presumed to pose a special risk of danger to society—is
“relevantly similar.” Rahimi, 144 S. Ct. at 1898 (quoting
Bruen, 597 U.S. at 29). In enacting § 922(g)(1), “Congress
obviously determined that firearms must be kept away from”
felons because they belong to a class “who might be expected
to misuse them.” Dickerson v. New Banner Inst., Inc., 460 U.S.
103, 119 (1983).145 And just as legislatures dating back to the
144 See supra notes 129–136 and accompanying text (discuss-
ing proposals to punish those convicted of forgery and perjury
with permanent disarmament); supra notes 137–140 and ac-
companying text (discussing laws prohibiting forgers, counter-
feiters, fraudsters, and thieves from holding office, voting, be-
ing on a jury, or serving in the military).
145 See also Lewis v. United States, 445 U.S. 55, 63, 67 (1980)
(explaining that federal gun laws, which were intended to be
“a sweeping prophylaxis, in simple terms, against misuse of
firearms,” focus on felony convictions “in order to keep fire-
arms away from potentially dangerous persons”); Scarborough
v. United States, 431 U.S. 563, 572 (1977) (“Congress sought
to . . . keep guns out of the hands of those who have demon-
strated that they may not be trusted to possess a firearm without
becoming a threat to society.” (internal quotation marks omit-
ted)); Barrett v. United States, 423 U.S. 212, 218 (1976) (“The
very structure of the Gun Control Act demonstrates that Con-
gress . . . sought broadly to keep firearms away from the per-
sons Congress classified as potentially irresponsible and dan-
gerous”); Huddleston v. United States, 415 U.S. 814, 824
(1974) (explaining that the principle purpose of the Safe Streets

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54
Founding determined that certain non-violent felons, including
those who committed fraud offenses like Range’s, should be
prohibited from possessing firearms, “Congress’ judgment that
a convicted felon . . . is among the class of persons who should
be disabled from . . . possessing firearms because of potential
dangerousness is rational.” Lewis v. United States, 445 U.S.
55, 67 (1980). Moreover, like the felony punishment laws of
our nascent Republic that imposed punishments necessarily
encompassing disarmament, § 922(g)(1) applies only to those
convicted of crimes that, as reflected in their applicable prison
terms, are deemed most serious by modern-day legislatures in
their respective jurisdictions.
As to the “how,” § 922(g)(1), like its Founding-era
analogues, applies after a person is convicted of a felony and
deprives that felon of the right to bear arms on a presumptively
permanent basis. Capital punishment, life imprisonment, and
civil death entailed permanent disarmament, as did estate
forfeiture at times.146 Thus, just as the availability of
imprisonment to respond to the Founding-era offenses akin to
§ 922(g)(8) rendered “the lesser restriction of temporary
disarmament that Section 922(g)(8) imposes . . . permissible”
in Rahimi, 144 S. Ct. at 1902, the availability of capital
punishment and life imprisonment to respond to non-violent
crimes like theft, forgery, counterfeiting, fraud, and perjury at
the Founding and beyond shows that “the lesser restriction” of
Act and Gun Control Act “was to curb crime” and “lawless-
ness”).
146 United States v. Diaz, 116 F.4th 458, 469 (5th Cir. 2024)
(“[T]he majority of the estate forfeiture laws . . . did not pro-
vide an opportunity for offenders to regain their possessions.”).

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55
disarmament imposed by § 922(g)(1) “is also permissible,”
id.147
2. Range’s Pre-Enforcement Challenge
Although § 922(g)(1) on its face fits “neatly within” our
historical tradition, Rahimi, 144 S. Ct. at 1901, there is one
147 Our sister circuits have likewise relied on Rahimi’s greater-
includes-the-lesser reasoning to hold that § 922(g)(1) is consti-
tutional as applied to felons who committed a variety of non-
violent crimes. See, e.g., United States v. Hunt, No. 22-4525,
2024 WL 5149611, at *6 (4th Cir. Dec. 18, 2024) (adopting
Rahimi’s “greater-includes-the-lesser theory” to foreclose as-
applied challenges to § 922(g)(1)); Diaz, 116 F.4th at 469
(“Here, if capital punishment was permissible to respond to
theft, then the lesser restriction of permanent disarmament that
§ 922(g)(1) imposes is also permissible.”); Jackson, 110 F.4th
at 1125, 1127 (holding that § 922(g)(1) is constitutional as ap-
plied to a felon who committed “non-violent” drug offenses in
part because early legislatures “authorized punishments that
subsumed disarmament—death or forfeiture of a perpetrator’s
entire estate—for non-violent offenses involving deceit and
wrongful taking of property”). They have also embraced
Rahimi’s reasoning when upholding other subsections of
§ 922. See, e.g., United States v. Gore, 118 F.4th 808, 815 (6th
Cir. 2024) (rejecting as-applied challenge to § 922(n) because
it imposed a “lesser burden” than its historical predecessors);
United States v. Veasley, 98 F.4th 906, 915 (8th Cir. 2024)
(“The ‘burden’ imposed by § 922(g)(3) is ‘comparable,’ if less
heavy-handed, than Founding-era laws governing the mentally
ill . . . It goes without saying that confinement with straitjack-
ets and chains carries with it a greater loss of liberty than a
temporary loss of gun rights.” (quoting Bruen, 597 U.S. at 29)).

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56
respect in which the regime it establishes—in practice—does
not comport with the “how” of these relevantly similar historic
regulations. As I read Rahimi, that qualification obligates us
to consider and ultimately grant Range’s request for
declaratory relief.
Under categorical disarmament laws, where an
individual was presumed to pose a special risk to society by
virtue of his membership in a particular group and thus was
lawfully disarmed as an initial matter, there was typically a
mechanism for him to petition and attempt to rebut that
presumption—whether by taking a loyalty oath, renouncing
allegiance, obtaining a license, or securing a court order.148
Even for offenses historically punishable by death or lifetime
imprisonment, and hence, encompassing permanent
disarmament, that punishment followed individualized
determinations made by a judge and jury, and a convicted felon
could also seek clemency or a pardon based on his individual
circumstances.149 And for both the categorical disarmament
laws and the commutation of a permanent deprivation of
liberty, the burden was on the petitioner to demonstrate that the
class-wide presumption of dangerousness was inapplicable to
him individually.150 In short, our regulatory tradition—as well
as Rahimi’s attention to the individualized findings required by
148 See supra notes 27, 36, 45–46, 65, 67–71, 85, 87–89 and
accompanying text.
149 See Banner, supra note 101, at 53–56; Preyer, supra note
113, at 347–48; Kathryn Preyer, Crime, the Criminal Law and
Reform in Post-Revolutionary Virginia, 1 Law & Hist. Rev. 53,
61–62, 73–74, 76 (1983).
150 See supra notes 27, 36, 45–47, 72–73, 90–91 and accompa-
nying text.

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57
and the durational limit of the restriction in that case—reflects
that where disarmament is based on a categorical presumption
of special danger to society, there must be a meaningful
opportunity for individualized review to survive constitutional
scrutiny.
The necessity of such individualized review was
evidently not lost on Congress when it enacted § 922(g)(1).
The “plain meaning” of § 922(g)(1)’s text is that “a felony
conviction imposes a firearm disability until the conviction is
vacated or the felon is relieved of his disability by some
affirmative action,” Lewis, 445 U.S. at 60–61, and its
enumeration of certain avenues for prospective relief in
§ 921(a)(20) and § 925(c) makes it “fully apparent” that
Congress intended there to be a mechanism to challenge the
permanent duration of the ban, id. at 64. Like its historical
predecessors in the states and colonies,151 Congress “clearly
intended” that a felon “clear his status before obtaining a
firearm,” id. (emphasis in original), and that those who violated
that ban without seeking dispensation be subject to prosecution
and punishment, see 18 U.S.C. §§ 921(a)(20), 924(a)(8).
The problem is that the statutory mechanisms legislated
by Congress are not, in practice, meaningfully available. True,
§ 925(c) authorizes the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) to prospectively restore a felon’s right
to possess a firearm if he proves that he “will not be likely to
act in a manner dangerous to public safety” and that the “public
interest” supports rearmament,152 and § 921(a)(20) exempts
any felon whose conviction “has been expunged,” who “has
been pardoned,” or who has had his “civil rights restored.” But
151 See supra Section I.B.1.
152 18 U.S.C. § 925(c); 27 C.F.R. § 478.144(d).

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58
Congress defunded the ATF program in 1992.153
Expungements are rare,154 as are pardons.155 And restoration
of rights for a convicted felon is, in many cases, not a legal
possibility: There is no federal procedure for restoring civil
rights for a federal felon, see Beecham v. United States, 511
U.S. 368, 372–73 (1994), and in most states, there is no way,
absent a state pardon, for a convicted felon to have his civil
rights fully restored.156
In the absence of other channels for individualized
review, the doors to the federal courthouse must be open.157
153 See Logan v. United States, 552 U.S. 23, 28 n.1 (2007);
United States v. Bean, 537 U.S. 71, 74–75 & n.3 (2002); S.
Rep. No. 102-353 (1992).
154 Expungement is generally available for only a small subset
of felonies. See Expungement Laws and Forms: 50-State Sur-
vey, Justia, https://www.justia.com/criminal/expungement-
record-sealing/expungement-forms-50-state-resources/ (last
updated Feb. 2023).
155 Pardons are often discretionary and turn on political consid-
erations. See generally Fifty-State Comparison: Pardon and
Policy Practice, Restoration Rts. Project, https://ccresource-
center.org/state-restoration-profiles/50-state-comparisonchar-
acteristics-of-pardon-authorities-2/ (last updated July 2024).
156 See Fifty-State Comparison: Loss and Restoration of
Civil/Firearms Rights, Restoration Rts. Project, https://ccre-
sourcecenter.org/state-restoration-profiles/chart-1-loss-and-
restoration-of-civil-rights-and-firearms-privileges-2/ (last up-
dated Mar. 2024).
157 I take issue with our dissenting colleagues’ suggestion that
federal courts lack authority to provide relief like I have

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59
Neither our historical tradition nor our modern understanding
of the Second Amendment as an “individual right”158 permits
us to blindly defer to a categorical presumption that a given
individual permanently presents a special risk of danger
without the opportunity for him to rebut it.159 Even so,
Congress’ judgment that a felon “might be expected to misuse”
firearms, Dickerson, 460 U.S. at 119, and thus belongs to a
“class of persons who should be disabled from . . . possessing
firearms because of potential dangerousness” is undoubtedly
“rational,” Lewis, 445 U.S. at 67. It is also wholly consistent
with this Nation’s historical tradition of disarming felons and
other categories of people presumed by the legislature to pose
a special danger of misusing firearms. See supra Section I.B.
So once the Government establishes that an offender
committed a felony, giving rise to that rational presumption, its
burden to identify relevantly similar historical regimes has
been satisfied, and the burden to seek a declaratory judgment,
proposed (or like that proposed in Judge Roth’s concurrence)
in the face of a statute that would otherwise be unconstitu-
tional. Dissent at 8 n.7. Congress explicitly gave us the au-
thority for the “[c]reation of [a] remedy” in the Declaratory
Judgment Act, see 28 U.S.C. § 2201, and “‘serious constitu-
tional question[s]’ . . . would arise if a federal statute were con-
strued to deny any judicial forum for a colorable constitutional
claim,” Webster v. Doe, 486 U.S. 592, 603 (1988).
158 See Heller, 544 U.S. at 595; Bruen, 597 U.S. at 32.
159 Cf. Heller, 554 U.S. at 628 n.27 (“If all that was required to
overcome the right to keep and bear arms was a rational basis,
the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have
no effect.”).

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60
like the burden to take an oath of allegiance, falls to the felon.
See Williams, 113 F.4th at 662.
Evaluating whether a felon has met that burden is not an
unfamiliar exercise for federal judges. In rendering decisions
about the possession of a firearm as a condition bail pending
trial, district courts consider “the nature and circumstances of
the offense charged, including whether the offense is a crime
of violence,” and determine whether the defendant poses a risk
of “danger” to the public. 18 U.S.C. § 3142(c), (g). Similarly,
when deciding whether a felon on supervised release or
probation must “refrain from possessing a firearm,” id.
§§ 3563(b)(8), 3583(d), courts consider several of the federal
sentencing factors, including “the nature and circumstances of
the offense and the history and characteristics of the
defendant,” as well as the need for disarmament to (1) “reflect
the seriousness of the offense”; (2) “promote respect for the
law, and to provide just punishment for the offense;” (3)
“afford adequate deterrence to criminal conduct;” and (4)
“protect the public from further crimes of the defendant,” id.
§ 3553(a)(1–2); see also Williams, 113 F.4th at 657–58; United
States v. Jackson, 85 F.4th 468, 478 (Mem.) (8th Cir. 2023)
(Stras, J., dissenting from the denial of rehearing en banc).
Applying these factors here, the strength of the record
precludes the need for remand. Unlike the majority—which
places the burden on the Government not only to show that
Range committed a felony, giving rise to the presumption that
he poses a special risk of firearm misuse, but also to establish
that he continues to pose that risk—I believe that historical tra-
dition, see supra Section I.B, along with Supreme Court prec-
edent, see Lewis, 445 U.S. at 61 (observing that the lifting of
§ 922(g)(1)’s ban requires “some affirmative action”), places
the burden on Range, as a convicted felon seeking to re-arm,

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61
to rebut the presumption that he still poses that risk. Ulti-
mately, however, the majority and I land in the same place be-
cause I conclude that Range has carried that burden.
Nearly thirty years have passed since Range’s predicate
conviction—a non-violent offense involving a relatively small
amount of funds—and besides a single summary offense for
fishing without a license and a few minor traffic infractions, all
evidence suggests that Range has been a law-abiding citizen in
the intervening decades. Importantly, Range has complied
with § 922(g)(1) until this point, and the Government itself
concedes there is no evidence that Range is dangerous, violent,
mentally unstable, or poses a threat to himself or the public if
his disability is lifted.160 Thus, considering the § 3553(a)
factors and the present-day risk that Range will misuse
firearms, I will concur in the judgment.
II. The Majority’s Methodological Flaw
Unmoved on remand by Rahimi’s call to principles-
based analogical reasoning, my colleagues in the majority
continue to demand that the Government produce a precise
historical match to § 922(g)(1), and, as a result, provide little
guidance for our district court colleagues charged with
adjudicating as-applied challenges going forward. That failure
to provide a clear and workable methodology leaves courts,
law enforcement, firearms dealers, and felons themselves
guessing about when § 922(g)(1) can be constitutionally
applied—disserving all with the resulting ambiguity.
160 See J.A. 171; Range I Oral Arg. at 35:05–34:10; 32:55–
31:52; 28:45–28:10.

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62
Rahimi, as even the majority acknowledges, calls for
examination of “the principles underlying our Nation’s history
and tradition of firearm regulation,” Maj. Op. at 5, not for a
regulation that “precisely match[es] its historical precursors,”
Rahimi, 144 S. Ct. at 1898. Because our law is not “trapped in
amber” and “the Second Amendment permits more than just
those regulations identical to ones that could be found in
1791,” relevantly similar historical laws are sufficient to
uphold a modern firearm regulation. Id. at 1897–98. Bruen
also cautioned that the Second Amendment does not impose “a
regulatory straightjacket” by requiring a “historical twin,” and
it explained that “even if a modern-day regulation is not a dead
ringer for historical precursors, it still may be analogous
enough to pass constitutional muster.” 597 U.S. at 30.
Yet how else would one describe the majority’s opinion
other than a doomed quest for historical dead ringers?
Confronted with the Founding-era practice of imposing the far
more severe penalty of death and life imprisonment for the
offenses most analogous to welfare fraud—including fraud,
forgery, counterfeiting, perjury, and theft—the majority
responds that the permanent loss of all rights is not analogous
to “the particular . . . punishment at issue here—de facto
lifetime disarmament.”161 To Rahimi’s admonition that the
greater punishment includes the lesser and the historical reality
that the Founding-era punishments for offenses like Range’s
necessarily subsumed the lesser punishment of permanent
forfeiture of firearms, the majority avers that offenses less
serious than Range’s were punishable by temporary rather than
life sentences, enabling those offenders to reacquire arms upon
161 Maj. Op. at 22 (emphasis added).

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63
their release from custody.162 To laws that categorically
disarmed a wide range of groups “like Loyalists, Native
Americans, Quakers, Catholics, and Blacks,” the majority
dismisses their relevance as directed at those “bearing arms
against” the country.163 To the historical reality that such laws
extended beyond those “bearing arms” to well-known pacifists
like the Quakers, the majority decries such analogies as
inconsistent with modern-day understandings of the First and
Fourteenth Amendments.164 And to the “why” and “how”
those laws restricted these particular groups—total
disarmament of all members of “groups they distrusted”—the
majority answers that those laws “do[] nothing to prove that
Range is part of a similar group today.”165
But the historical analogy is patently obvious: Congress
disarmed felons precisely because it determined that such
persons “may not be trusted to possess a firearm without
becoming a threat to society.’” Dickerson, 460 U.S. at 112
(emphasis added) (quoting Lewis, 445 U.S. at 63). In this way,
§ 922(g)(1) is simply a modern-day analogue to traditional
legislative determinations that “firearms must be kept away
from persons, such as those convicted of serious crimes, who
might be expected to misuse them.” Id. at 119; see supra
Section I.B. And to that inescapable, historically grounded
principle that Congress can categorically disarm felons as a
class of persons presenting a special danger of firearms misuse,
the majority can only fall back on its bottom line: any analogy
162 Id. at 23–24. But cf. supra Section I.B.2.a.
163 Maj. Op. at 20.
164 Id. at 19–20.
165 Id. at 20.

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64
not precisely matching Range’s individual circumstances is
“far too broad.”166
Indeed, the only analogue the majority declares
sufficient—a Founding-era statute that imposed the same
“particular”167 restriction for the same length of time on the
same group of people as the modern-day law168—calls for
nothing less than a “historical twin.”169 The majority admits as
much when, confronting the fact that the First Congress made
forging and counterfeiting a public security a capital offense, it
asserts that Range’s crime of making false statements to steal
public funds—though admittedly analogous—could
hypothetically be “more analogous” to other fraud offenses
that carried a lesser punishment.170 The majority thus thrusts
on the Government the insurmountable burden of finding an
identical Founding-era offense that imposes “the particular
(and distinct) punishment” of lifetime disarmament for each
and every felony covered by § 922(g)(1).171 Yet the proper
inquiry is not offense-by-offense, but “whether the challenged
regulation is consistent with the principles that underpin our
regulatory tradition.” Rahimi, 144 S. Ct. at 1898 (emphasis
added). Analogical reasoning under Bruen and Rahimi
“demands [that] wider lens.” Id. at 1925 (Barrett, J.,
concurring).
At bottom, my colleagues have prescribed a
methodology of examining historical practices in isolation and
166 Id. at 20–21 (quoting Bruen, 597 U.S. at 31).
167 Id. at 22.
168 See id.
169 Bruen, 597 U.S. at 30; Rahimi, 144 S. Ct. at 1903.
170 Maj. Op. at 22.
171 Id.

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65
rejecting them if they deviate in any respect from
contemporary regulations. But for all the analogues they
reject, they decline to adopt any articulable methodology of
their own. And not for lack of options. Our sister circuits have
taken divergent but principled approaches to adjudicating
challenges to § 922(g)(1). See United States v. Hunt, No. 22-
4525, 2024 WL 5149611, at *7 (4th Cir. Dec. 18, 2024) (“Just
as early legislatures retained the discretion to disarm categories
of people because they refused to adhere to legal norms in the
pre-colonial and colonial era, today’s legislatures may disarm
people who have been convicted of conduct the legislature
considers serious enough to render it a felony.”); United States
v. Pierre, No. 23-11604, 2024 WL 5055533, at *2–4 (11th Cir.
Dec. 10, 2024) (concluding that Bruen and Rahimi did not
overrule or abrogate circuit precedent foreclosing facial and as-
applied challenges to § 922(g)(1)); Williams, 113 F.4th at 661–
62 (“History shows that governments may use class-based
[laws like § 922(g)(1)] to disarm people it believes are
dangerous, so long as members of that class have an
opportunity to show they aren’t.”); Diaz, 116 F.4th 469–70
(holding that § 922(g)(1) is constitutional as applied to felons
convicted of offenses analogous to ones that “would have led
to capital punishment or estate forfeiture” at the Founding);
United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024)
(“Given these assurances by the Supreme Court [about
longstanding prohibitions on the possession of firearms by
felons], and the history that supports them, we conclude that
there is no need for felony-by-felony litigation regarding the
constitutionality of § 922(g)(1).”).
The closest the majority comes to adopting a coherent
methodology is its approving reference to that of the Sixth

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66
Circuit in Williams.172 In several respects, I agree with
Williams. Much like the approach I proposed in my prior
dissent173 and that I espouse today, the Sixth Circuit derived
from historical analogues the “relevant principle” that “when
the legislature disarms on a class-wide basis, individuals must
have a reasonable opportunity to prove that they don’t fit the
class-wide generalization,” 113 F.4th at 661, and because the
government historically could “require individuals in a
disarmed class to prove they aren’t dangerous in order to regain
their right to possess arms,” it concluded that “in an as-applied
challenge to § 922(g)(1), the burden rests on [the felon] to
show he’s not dangerous,” id. at 662. So far, so good.
At that point, however, the Sixth Circuit took a different
turn and asserted that a defendant could raise that challenge in
an effort to dismiss a § 922(g)(1) indictment “albeit after he
violated the law, not before.” Id. at 663; see also Diaz, 116
F.4th at 461, 469–70 & n.4. And that conclusion, I reject. My
colleagues in the majority gesture at a purely prospective
approach by clarifying that the relief we grant today on
Range’s as-applied challenge protects him only “from
prosecution under § 922(g)(1) for any future possession of a
firearm.”174 Consistent with that prospective approach, they
also clarify that the decision to grant a movant that forward-
looking relief turns not solely on the nature of the underlying
conviction but on whether the movant currently “poses a
172 See Maj. Op. at 21.
173 Range I, 69 F.4th at 135–38 (Krause, J., dissenting).
174 Maj. Op. at 25 (emphasis added).

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67
physical danger to others.”175 And to that extent, I agree with
them.
But there should be no ambiguity on that score, and the
majority opinion creates more questions than it answers. As I
explain below, requiring a pre-enforcement challenge as a
condition of protection from prosecution under § 922(g) and
prosecuting those who violate § 922(g)’s prohibition without
obtaining such declaratory relief not only comports with our
regulatory tradition but also provides a framework that is both
administrable and comports with due process.
III. The Benefits of Our Prospective Approach Relative
to the Sixth Circuit’s
Any approach that would apply post hoc determinations
about the constitutional application of § 922(g)(1) on a
retroactive basis—i.e., to excuse unauthorized violations of the
statutory ban and dismiss pending § 922(g)(1) indictments or
vacate § 922(g)(1) convictions—would be deeply flawed.
While the Sixth Circuit attempted to cabin the harm by drawing
a line at “dangerousness,” Williams, 113 F.4th at 659, its
retroactive modality still falls prey to intractable doctrinal and
practical problems.
A. Consequences of the Sixth Circuit’s Retroactive
Approach
A retrospective mode of analysis defies not just logic,
but also the Due Process Clause, which guarantees that a
“person of ordinary intelligence [must have] a reasonable
opportunity to know what is prohibited, so he may act
175 Id.

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68
accordingly.”176 But particularly where (as with the majority
here) courts continue to demand a precise historical analogue,
offenders cannot possibly know in advance of a court’s ex post
determination whether possessing a firearm post-indictment
will be deemed a constitutional entitlement or a federal felony.
Looking to “dangerousness,” as the Sixth Circuit did,
still fails to give adequate notice about what § 922(g)(1) per-
missibly criminalizes. Congress enacted a bright-line rule dis-
tinguishing offenders who can possess firearms from those
who cannot. By looking to the maximum punishment available
for his offense, a felon or state misdemeanant can easily deter-
mine whether he can possess a gun.177 In contrast, a holding
that § 922(g)(1) constitutionally applies ab initio only to “phys-
ically dangerous” felons or felons who commit “violent”
crimes replaces Congress’s straightforward test with an opaque
one, tantamount to rendering the statute void for vagueness.
After all, previous attempts by federal courts to define
“violent felony,” e.g., for purposes of the Armed Career
Criminal Act, yielded “repeated attempts and repeated failures
to craft a principled and objective standard [for that term,]
confirm[ing] its hopeless indeterminacy.”178 Those efforts
proved so futile that the Supreme Court held in Johnson v.
United States that the “violent felony” provision “denie[d] fair
notice to defendants and invite[d] arbitrary enforcement by
judges,” thus violating due process.179 If § 922(g)(1) is
constitutionally applied only to “crimes of violence,” are we
relegated to the widely disparaged “categorical approach,”
176 Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
177 See 18 U.S.C. § 921(a)(20).
178 Johnson v. United States, 576 U.S. 591, 598 (2015).
179 Id. at 597.

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69
excluding all offenses that lack an element of the “use of
force”?180 What is the relevance of underlying conduct? Are
courts limited to considering Shepard documents?181 What
about crimes that lack an element of force but are undeniably
associated with violence, like drug trafficking, human
trafficking, and treason?182
Holding § 922(g)(1) unenforceable from the start as to
an amorphous sub-class of felons also makes it virtually im-
possible for the Government to prove the mens rea element of
a § 922(g) offense. In Rehaif v. United States, the Supreme
Court held that to convict a defendant under § 922(g) the Gov-
ernment must prove the defendant not only knew that he pos-
sessed a firearm, but also knew that “he had the relevant status
when he possessed [the firearm.]” 588 U.S. 225, 227 (2019).
The Court then clarified in Greer v. United States that a Rehaif
error is not a basis for relief under the plain-error standard un-
less the defendant can make a sufficient argument on appeal
that, but for the error, he could have established he did not
know he was a felon. 593 U.S. 503, 508–10 (2021). That
would be a difficult argument to make, the Court observed, be-
cause “as common sense suggests, individuals who are
180 United States v. Scott, 14 F.4th 190, 195 (3d Cir. 2021).
181 Those documents include the “charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant as-
sented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
182 Range himself candidly conceded at the original en banc
oral argument that, under a “violence” test, offenses like pos-
session of child pornography, money laundering, and drunk
driving would not support disarmament. Range I Oral Arg. at
19:51–20:20, 24:00–24:26.

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70
convicted felons ordinarily know that they are convicted felons
[for purposes of § 922(g)(1).]” Id. at 506.
But a test that turns on a court’s post hoc determination
that § 922(g)(1) was unenforceable from the beginning re-
places Rehaif’s clear and ascertainable standard with an inco-
herent one: the Government now must prove that, when he pos-
sessed the firearm, the felon knew his particular offense of con-
viction would later be held to have a historical match. And in
lieu of Greer’s high threshold for plain-error relief, that rea-
soning hands defendants a ready-made argument for appeal:
that they could not know at the time they possessed a firearm—
indeed, at any time before a court made the determination—
whether their particular felony offense was subject to or ex-
empt from § 922(g)(1). In short, granting relief on a retroactive
basis throws open the floodgates the Supreme Court sought to
close on Rehaif errors in Greer and augurs in a deluge of Rehaif
challenges.
Additionally, a retroactive approach has sweeping im-
plications for state felon-in-possession restrictions. By making
application of felon-in-possession statutes void ab initio, the
retroactive approach permits felons to raise the same Second
Amendment challenges to state regulations as they can to their
federal counterpart, leaving state felon-in-possession statutes
susceptible to the same patchwork constitutionality as
§ 922(g)(1). Those laws differ significantly across the forty-
eight states that restrict offenders’ firearm rights—including
which offenses trigger restrictions as well as their duration—
in keeping with each state’s local circumstances.183 Instead of
183 See generally Fifty-State Comparison: Loss and Restora-
tion of Civil/Firearms Rights, Restoration Rts. Project,

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71
ensuring local communities’ concerns and values shape when
felons may possess firearms under state law, the retroactive ap-
proach brushes aside these weighty federalism interests, mak-
ing applications of local firearm restrictions unconstitutional at
the outset where they do not precisely match a historical twin.
Congress took great care to respect local interests in
§ 922(g)(1) by incorporating state law felony equivalents. See
18 U.S.C. § 921(a)(20). The retroactive approach displaces
this careful balance of federal and state interests in favor of
unpredictable, post hoc determinations, unresponsive to the
needs of local communities and antithetical to our system of
federalism.
Finally, anything short of requiring a pre-enforcement
challenge severely undermines law enforcement efforts and
makes the FBI’s National Instant Criminal Background Check
System (NICS) obsolete. Currently, NICS includes over five
million felony conviction records,184 and that number contin-
ues to grow as additional agencies contribute records to the
NICS database.185 Prior felony convictions are by far the most
common reason individuals fail NICS background checks.186
https://ccresourcecenter.org/state-restoration-profiles/chart-1-
loss-and-restoration-of-civil-rights-and-firearms-privileges-2/
(last visited Dec. 23, 2024).
184 Active Records in the NICS Indices, FBI,
https://www.fbi.gov/file-repository/active_rec-
ords_in_the_nics-indices.pdf/view (last updated Nov. 30,
2024).
185 See Dru Stevenson, In Defense of Felon-in-Possession
Laws, 43 Cardozo L. Rev. 1573, 1597 (2022).
186 See Federal Denials, FBI, https://www.fbi.gov/file-reposi-
tory/federal_denials.pdf/view (last updated Nov. 30, 2024).

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72
And the Supreme Court in Bruen endorsed the use of back-
ground checks, for violent and non-violent offenses alike, to
ensure individuals bearing firearms are “law-abiding” citizens.
See 597 U.S. at 38 n.9.
An indeterminant, post hoc test for which felons fall
outside § 922(g)(1) and under what circumstances renders
NICS a dead letter. When the police receive a tip that an ex-
offender is toting an assault rifle, how do they—or prosecutors
for that matter—know if they have probable cause to arrest him
for violating the felon-possession ban, or if they instead are
bringing liability on themselves for violating the felon’s civil
rights? Do they look to particular elements of the prior offense
to determine that the felon is a “dangerous” or to the conduct
underlying that offense? How do they assess that conduct in
the case of guilty pleas entered years ago? This approach re-
quires law enforcement in the first instance to undertake the
historical research with which even the federal courts have
struggled to determine whether there is a precise match and
thus probable cause to support an arrest under § 922(g)(1), ren-
dering their jobs, at best, substantially more difficult, and, at
worst, nearly impossible.
And, without a functional background check system,
how do firearms licensees (FFLs) comply with federal law?
Where as-applied challenges can render § 922(g)(1) unen-
forceable from the outset, FFLs who discover that a potential
customer has a felony conviction have no way of knowing
whether that offense has a precise historical match or whether
the individual will be considered by a court to be “physically

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73
dangerous.”187 Of particular concern, any assessments based
on such “vague criteria are vulnerable to biases” along race,
class, gender, and other lines, resulting in disparities between
which groups retain gun rights and which do not.188
B. Requiring a Declaratory Judgment Avoids These
Pitfalls
Holding § 922(g)(1) enforceable through at least the
successful completion of a felon’s sentence and requiring a
declaratory judgment as a prerequisite to relief thereafter not
only adheres to our regulatory tradition and the Court’s
precedent but also provides a clear and administrable
framework.189
187 The penalty for incorrectly concluding a felon can purchase
a weapon without an exhaustive inspection of the felon’s
crime, conduct, and personal circumstances will be stiff: a sin-
gle error will result in the loss of the FFL’s license, barring the
FFL from the industry. See Simpson v. Att’y Gen., 913 F.3d
110, 114 (3d Cir. 2019).
188 Ryan T. Sakoda, The Architecture of Discretion: Implica-
tions of the Structure of Sanctions for Racial Disparities, Se-
verity, and Net Widening, 117 Nw. U. L. Rev. 1213, 1227
(2023); cf. Joseph Blocher & Reva B. Siegel, Race and Guns,
Courts and Democracy, 135 Harv. L. Rev. F. 449, 449 (2022)
(arguing “racial justice concerns [with firearm laws] should be
addressed in democratic politics rather than in the federal
courts”).
189 Judge Roth acknowledges that there is a meaningful differ-
ence between the proposal that an individual’s opportunity to
petition for rearmament arises after the sentence has been

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74
First, declaratory judgment proceedings give effect to
the Court’s oft-repeated instruction that felon-possession bans
are “presumptively lawful,”190 while respecting that the
Government bears the initial burden to “demonstrate that the
regulation is consistent with this Nation’s historical tradition
of firearm regulation.”191 Once the Government establishes
served, and the proposal that it arises after the duration of the
maximum sentence available for the conviction has
passed. She agrees, however, on the most important point: fel-
ons should have a date for when they may petition courts for
rearmament, and specific guidance for what they must show
for relief. Judge Roth also strongly agrees with the above cri-
tiques of the majority opinion.
190 Heller, 554 U.S. at 626–27 & n.26; see McDonald, 561 U.S.
at 786; Rahimi, 144 S. Ct. at 1902; Bruen, 597 U.S. at 72 (Alito,
J., concurring); id. at 81 (Kavanaugh, J., concurring). As the
Tenth Circuit has observed, “[b]ecause the ‘presumptively
lawful regulatory measures’ language, first stated in Heller,
has not been abrogated,” and has been restated in McDonald,
Bruen, and Rahimi, “it remains good law.” Rocky Mountain
Gun Owners v. Polis, 121 F.4th 96, 119 (10th Cir. 2024); see
also Binderup v. Att’y Gen., 836 F.3d 336, 359 n.3 (3d Cir.
2016) (Hardiman, J., concurring in part) (explaining that “Hel-
ler’s list of ‘presumptively lawful’ regulations . . . does not
qualify as dicta”), abrogated on other grounds by Bruen, 597
U.S. 1. Moreover, even if it were dicta, “federal appellate
courts are bound by the Supreme Court’s considered dicta al-
most as firmly as by the Court’s outright holdings, particularly
when, as here, a dictum is of recent vintage and not enfeebled
by any subsequent statement.” Oyebanji v. Gonzales, 418 F.3d
260, 265 (3d Cir. 2005) (Alito, J.) (cleaned up).
191 Bruen, 597 U.S. at 17.

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75
that an offender committed a felony, it has necessarily satisfied
its burden consistent with the historical practice of disarming
felons upon conviction. The burden at that point, like the
taking of oaths or swearing allegiance, falls on the felon to
rebut the ban’s presumptive lawfulness by establishing he is
currently a “law-abiding citizen” who no longer poses a special
risk of danger or misusing firearms.192
Second, limiting relief in as-applied § 922(g)(1) chal-
lenges to prospective declaratory judgments eliminates an in-
tractable due process problem. Any felon who possessed a
firearm before securing a favorable declaratory judgment
would remain subject to prosecution under § 922(g)(1), and
those granted relief would have their rights restored prospec-
tively. That clear rule would provide felons with constitution-
ally adequate notice as to whether and when they regained their
right to bear arms, allowing § 922(g)(1) to withstand void-for-
vagueness challenges. Prospective declaratory judgments like-
wise avoid opening the floodgates to mens rea challenges to
§ 922(g)(1) prosecutions, and the high threshold Greer set for
defendants to overturn § 922(g)(1) convictions would en-
dure.193
Third, making a declaratory judgment a prerequisite to
avoiding § 922(g)(1) enforcement shows respect for the sepa-
ration of powers and federalism. Other than for those who
192 Id. at 26. This approach would not result in repetitive ac-
tions because a felon who brings an unsuccessful declaratory
judgment suit must provide “newly discovered evidence that,
with reasonable diligence, could not have been discovered” to
prevail in a subsequent as-applied challenge to § 922(g)(1).
Fed. R. Civ. P. 60(b)(2).
193 See 593 U.S. at 508–09.

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76
received favorable declaratory judgments, Congress’s decision
to disarm felons would remain intact. Also, state statutes re-
stricting felons’ firearms rights would be generally enforcea-
ble, ensuring local communities’ concerns and values continue
to shape when felons are permitted to possess firearms under
state law.
Finally, a prospective approach avoids the potentially
debilitating effect on law enforcement, U.S. Attorney’s Of-
fices, and our background check system. Currently, felons can
submit documentation to the FBI through a voluntary appeal-
file application, including “information regarding an expunge-
ment, restoration of firearm rights, pardon, etc.”194 Successful
applicants receive a unique personal identification number to
prevent future background check denials.195 Thus, a felon who
secures a prospective declaratory judgment can simply submit
that judgment to the FBI to prevent false positives on his back-
ground check when next purchasing firearms. Then, just as
they do today, law enforcement and prosecutors could depend
on NICS for data when deciding whom to charge with violating
§ 922(g)(1); courts could rely on existing jury instructions, the
standard conditions of supervised release or parole, and the
plain-error test set out in Greer; and firearm dealers could
194 Types of Documents Requested Based on Prohibitor, FBI
(Sept. 14, 2018), https://www.fbi.gov/file-repository/nics-ap-
peal-documents-requested.pdf/view.
195 Firearm-Related Challenge (Appeal) and Voluntary Appeal
File (VAF), FBI, https://www.fbi.gov/how-we-can-help-
you/more-fbi-services-and-information/nics/national-instant-
criminal-background-check-system-nics-appeals-vaf (last vis-
ited Dec. 23, 2024).

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77
ascertain from a background check whether a felon can pur-
chase weapons.
Without clearly limiting as-applied challenges to
prospective relief, we put our citizenry at risk for tragic
consequences: a flood of motions to dismiss indictments,
appeals, and reversals of § 922(g)(1) convictions; more armed
felons on our streets; more gun violence; and less trust in a
judiciary mired in formalism and the usurpation of legislative
authority. The Supreme Court had the opportunity to take up
Range I and instead remanded, resurrecting a circuit split and
a tower of uncertainty. The sooner it provides clarity, the safer
our republic will be.
IV. Conclusion
For the foregoing reasons, I respectfully concur in the
judgment.

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1
ROTH, Circuit Judge, concurring in judgment with whom
KRAUSE and CHUNG, Circuit Judges join in part.
The Supreme Court has consistently and repeatedly
reaffirmed Congress’s presumptive power to limit felons’
rights to possess firearms.1 The facial constitutionality of §
922(g)(1) is not up for debate under this presumption—nor is
it before us on Range’s appeal. But Rahimi and Bruen have
blurred the lines between facial and as-applied challenges
under the Second Amendment. Determining whether §
922(g)(1) “comport[s] with the principles underlying the
Second Amendment”2 requires us to articulate broad principles
underlying the challenged regulation and their relevant
similarity to oft-repeated historical analogues.
I write separately to focus on two aspects of Range’s
circumstances: the permanent loss of his right to bear firearms,
and the necessity of an efficient path to resolve similar
1 See District of Columbia v. Heller, 554 U.S. 570, 626–27, 627
n.26 (2008) (describing certain categorical prohibitions, like
felon dispossession, as “presumptively lawful”); accord.
United States v. Rahimi, 144 S. Ct. 1889, 1902 (2024); N.Y.
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 80–81 (2022)
(Kavanaugh, J., concurring); McDonald v. City of Chicago,
561 U.S. 742, 786 (2010); see also Lewis v. United States, 445
U.S. 55, 65 n.8 (1980) (“These legislative restrictions on the
use of firearms are neither based upon constitutionally suspect
criteria, nor do they trench upon any constitutionally protected
liberties.”); United States v. Bass, 404 U.S. 336, 338 (1971)
(affirming § 922(g)(1) as a constitutionally valid exercise of
Congress’ Commerce Clause authority).
2 Rahimi, 144 S. Ct. at 1898.

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2
situations. I am convinced that, in the case of a nonviolent,
reformed offender, the loss of the right to possess firearms
should not be de facto permanent. Over two decades have
passed since Range completed his sentence for obtaining
public welfare funds by misrepresentation—two decades
during which he has demonstrated law-abiding, peaceful
behavior and shown his possession of firearms would not pose
any danger to the public. The ban of § 922(g)(1) should no
longer apply to him.
The government and our sister circuits have presented
an exhaustive survey of statutes that set forth an unmistakable
Anglo-American tradition of categorical disarmament.3 As the
sources provided by the government make clear, from English
3 See, e.g., United States v. Williams, 113 F.4th 637, 653 (6th
Cir. 2024); United States v. Jackson, 110 F.4th 1120, 1126 (8th
Cir. 2024); United States v. Perez-Garcia, 96 F.4th 1166, 1186
(9th Cir. 2024); United States v. Duarte, 101 F.4th 657, 676
(9th Cir. 2024), opinion vacated, 108 F.4th 786 (9th Cir. 2024);
see also Saul Cornell, Constitutional Mischiefs and
Constitutional Remedies: Making Sense of Limits on the Right
to Keep and Bear Arms in the Founding Era, 51 Fordham Urb.
L.J. 25, 47 (2023); Joseph G. S. Greenlee, The Historical
Justification for Prohibiting Dangerous Persons from
Possessing Arms, 20 Wyo. L. Rev. 249, 259 (2020); Michael
A. Bellesiles, Gun Laws in Early America: The Regulation of
Firearms Ownership, 1607–1794, 16 L. & Hist. Rev. 567, 577
(1998); C. Kevin Marshall, Why Can’t Martha Stewart Have a
Gun?, 32 Harv. J.L. & Pub. Pol’y 695 (2009).

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3
kings to the 20th century, governments have disarmed the
peaceable and dangerous alike with varied justifications.4
4 See generally, Krause Concurrence at 12–40 (providing an
in-depth discussion of categorical disarmament laws from the
English Restoration to the American Gilded Age); see also,
e.g., 4 William Blackstone, Commentaries on the Laws of
England, 380–89 (1769) (felons at common law generally
forfeited their lands, goods, and chattels); Letter from George
Washington to the Pennsylvania Council of Safety (Dec. 15,
1776), National Archives (requesting authorization to disarm
individuals remaining neutral in the Revolutionary war, as their
arms were needed by the militia); Act of Mar. 7, 1923, ch. 266,
§ 5, 1923 N.D. Laws 380 (prohibiting the possession of
handguns by those convicted of felonies against person or
property); Act of Oct. 3, 1961, Pub. L. No. 87-342, § 2, 75 Stat.
757 (forbidding the receipt of a firearm by anyone convicted
of a crime punishable by more than a year of imprisonment);
Act of July 13, 1892, ch. 159, § 5, 27 Stat. 117 (D.C.)
(restricting the sale of firearms to individuals below certain
ages); Act of Feb. 4, 1881, ch. 3285, No. 67, § 1, 1881 Fla.
Laws 87 (banning the sale of guns to persons of unsound
mind); Act of Mar. 27, 1879, ch. 59, § 4, 1879 Conn. Pub. Acts
394 (disarming “tramps” or “vagrants”); Act of Feb. 23, 1867,
ch. 12, § 1, 1867 Kan. Sess. Laws 25 (forbidding intoxicated
persons from possessing guns); Federal Firearms Act, ch. 850,
§ 2(d)-(f), 52 Stat. 1251 (1938) (banning violent criminals,
fugitives from justice, and persons under felony indictment
from possessing firearms); Act of Oct. 3, 1961 (disarming
felons in general, drug users and addicts, and persons with
mental illnesses); Violent Crime Control and Law Enforcement

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4
If the government’s proposed analogues are evidence of
a historical tradition underlying the Second Amendment, then
the legislature’s power to categorically disarm is undeniably
broad. In enacting § 922(g)(1), Congress intended to exercise
the full breadth of this power, believing that a felony-
equivalent conviction was a sufficient indicator that such
individuals posed a danger of misuse. 5 Congress imposed
categorical disarmament as a preventive and/or reformative
measure.6 Moreover, the government has met its burden of
setting forth analogues that are “relevantly similar” to §
922(g)(1) in “why … [they] burden[] the Second Amendment
right.”7 These analogues establish a historical principle of
disarmament to address the danger of the misuse of firearms,
and the Supreme Court has repeatedly identified § 922(g)(1) as
a “presumptively lawful regulatory measure[].”8
Act of 1994 (disarming individuals subject to domestic
violence restraining orders).
5 See also, Huddleston v. United States, 415 U.S. 814, 824
(1974) (“The principal purpose” of § 922(g) “was to curb crime
by keeping ‘firearms out of the hands of those not legally
entitled to possess them because of age, criminal background,
or incompetency.’”) (citing 1269 S. Rep. No. 1501, 90th Cong.,
2d Sess., 22 (1968) U.S. Code Cong. & Admin. News 1968, p.
4410).
6 Id.
7 See Rahimi, 144 S. Ct. at 1901 (emphasis added) (quoting
Bruen, 597 U.S. at 30); see also, e.g., id. at 1902; Heller, 554
U.S. at 626–27, 627 n.26; Bruen, 597 U.S. at 80–81
(Kavanaugh, J., concurring); McDonald, 561 U.S. at 786.
8 See, e.g., Heller, 554 U.S. at 626–27, 627 n.26; Rahimi, 144
S. Ct. at 1902; Bruen, 597 U.S. at 364 (2020) (Alito, J.,
concurring); McDonald, 561 U.S. at 786.

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5
But the government’s historical analogues show that
Congress has the power only to suspend the right to possess
firearms—not to de facto permanently remove it. 9 The
9 The only analogue that the Government identifies for
permanent disarmament is capital punishment. Historical
punishment of felonies with execution is an imperfect
analogue, as § 922(g)(1) is not a punishment but rather a
disability imposed because of a prior conviction. See Beecham
v. United States, 511 U.S. 368, 371 (1994) (“Section 922(g)
imposes a disability on people who “ha[ve] been convicted.”);
Padilla v. Kentucky, 559 U.S. 356, 376 (2010) (listing
“ineligibility to possess firearms” as a consequence of
conviction). Treating § 922(g)(1) as a form of punishment
would raise serious constitutional questions when the plaintiff,
like Range, was convicted only in state court. This is because
Congress lacks authority to impose a punishment for a state
crime. See United States v. Lanza, 260 U.S. 377, 382 (1922)
(“[E]ach government in determining what shall be an offense
against its peace and dignity is exercising its own sovereignty,
not that of the other. For it to do so would crumble the
foundations of our system of dual sovereigns, not to mention
flout our constitutional prohibition on punishing the same
offense twice.”). This distinction is important. Historical
analogues presented in this context disarmed within the bounds
of a criminal sentence—but a § 922(g)(1) disability is a de facto
permanent disarmament in most states. See 50-State
Comparison: Loss & Restoraiton of Civil / Firearms Rights,
RESTORATION OF RTS. PROJ. (available at
https://ccresourcecenter.org/state-restoration-profiles/chart-1-
loss-and-restoration-ofcivil-rights-and-firearms-privileges/)
(last accessed Nov. 21, 2024). Because Founding-era felons
regained their rights when (or if) they completed their sentence,

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6
government offers two types of historical analogues to support
the duration of 922(g)(1)’s disarmament: 1) statutes that
disarmed categories of people believed to pose a danger of
firearm misuse; and 2) statutes punishing—and incidentally
disarming—those convicted of committing historical-
equivalents to modern felonies. For the first category, once the
government’s justification for disarmament no longer applied
to an individual—whether at the end of a criminal sentence,
upon an individualized determination of a judge or other
authority, or as part of a broader reinstatement of civil rights—
the right to possess firearms always had the potential of being
restored.10 Thus, while these proposed historical analogues do
these analogues do not in and of themselves support the
necessity of disarmament once a perceived threat to society has
passed. See Kanter v. Barr, 919 F.3d 437, 461 (7th Cir. 2019)
(Barrett, J., dissenting) (describing the general pitfalls of
analogies to capital punishment, and noting that felons serving
a term of years had their rights “suspended but not destroyed.”)
(abrogated by Bruen, 597 U.S. at 1). This conclusion is
supported by our general understanding that individuals
possess limited civil rights while serving their sentence, but
that those rights may be restored once they have served their
time. The only permanent loss of a fundamental constitutional
right that may continue as a collateral consequence of criminal
conviction— the loss of the right to vote—required an express
sanction in the Constitution. See Richardson v. Ramirez, 418
U.S. 24, 54 (1974) (“The exclusion of felons from the vote has
an affirmative sanction in [§] 2 of the Fourteenth
Amendment.”).
10 For example, the nineteenth century statutes disarming
children, the mentally ill, “vagrants”, and intoxicated persons
were necessarily temporary in nature as a child could age out

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7
support a principle of temporary categorical bans, they are not
wholly “relevantly similar” to § 922(g)(1) in “how [they]
burden the Second Amendment right” because the disability
imposed by § 922(g)(1) is de facto permanent.11
of the ban, a mentally ill person could receive treatment, a
“vagrant” could be housed, and an intoxicated person could
become sober. See, supra n.4; see also, Resolution of Mar. 13,
1776, in Journal of the Provincial Congress of South Carolina,
1776, at 77–78 (1776) (permitting restoration of arms to “any
person who . . . shall convince the Committee aforesaid, that
he sincerely desires to join in support to the American cause”);
Mass. Gen. Laws 484 (1776) (permitting disarmed loyalists to
restore their right to possess arms upon a committee or court
order); Duarte, 101 F.4th at 683 (describing Revolution-era
statutes permitting Loyalists to keep weapons “once they
showed ‘satisfactory reasons’ for needing weapons or ‘by the
order of” colonial committees’”). Many statutes included an
internal safety valve permitting individuals to
contemporaneously restore their right to possess firearms,
including by swearing loyalty oaths, e.g., The Acts of the
General Assembly of the Commonwealth of Pennsylvania 193
(1782) (A 1779 Act amending a 1778 law disarming Loyalists,
to permit those who had taken an oath of allegiance to rearm
themselves.), or putting their use of firearms at surety. See
Rahimi, 144 S. Ct. at 1899 (discussing history of surety laws as
a form of “preventative justice”). Meanwhile, felonies at
common law that were punishable by forfeiture of property did
not preclude offenders from purchasing new firearms after they
had forfeited their old arms. E.g., id. at 1901; United States v.
Moore, 111 F.4th 266, 269 (3rd Cir. 2024).
11 See Rahimi, 144 S. Ct. at 1901 (emphasis added) (quoting
Bruen, 597 U.S. at 30).

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8
The government identifies a second set of historical
analogues to support the de facto permanence of § 922(g)(1)
disarmament—historic punishments for serious offenses. For
convicted offenders, disarmament was often limited to the
duration of their actual imprisonment. In practice then, the
maximum possible period of disarmament contemplated by
legislatures was frequently the maximum possible period of
imprisonment. While that may have been equivalent to
permanent disarmament for some offenses, it was not for all
and thus would not support permanent disarmament.
In short, the government’s two strands of analogues
establish a historic principle of imprisoning (and thereby
disarming) in response to a felony conviction for a period of
time that depended on the offense committed, as well as
temporarily disarming categories of people that a legislature
deemed to pose a danger of firearm misuse. Together, these
two principles reflect that felons can be disarmed under §
922(g)(1) because, as a function of their conviction, Congress
has found them to pose a danger of misuse. The remaining
question is how long felons’ Second Amendment rights may
constitutionally be burdened pursuant to these principles.12
12 This is the only point of disagreement between the views set
forth here and those set forth by Judge Krause in her
concurrence. We agree that § 922(g)(1) is constitutional as
applied to all offenders that meet its statutory criteria, that
those offenders must have an opportunity at some point to
show that they should no longer be disarmed, and that they will
remain disarmed, up to and including permanently, unless and
until they make that showing. In Judge Krause’s view, history
supports allowing the offender to seek that opportunity as early
as the conclusion of his actual sentence, whereas I would not

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9
I conclude that when disarmament is purely based on
felon status (not an individualized assessment of danger to
others), an indicator of the power to regulate is the maximum
penalty for the offense of conviction. This conclusion is
consistent with the historic tradition of disarmaments that are
limited in duration.13 Because it is based upon legislatures’
assessments of the danger posed to society by an offense,14 it is
allow it until after the duration of the maximum sentence
available for the conviction had passed. Thus, Judge Krause
does not join in the durational limit I adopt in the next
paragraph above the line or in notes 17 and 20.
13 I note that we should not assume “that founding-era
legislatures maximally exercised their power to regulate.” Id.
at 1925 (Barrett, J., concurring); Antonyuk v. James, 120 F.4th
941, 969 (2d Cir. 2024) (“Legislatures past and present have
not generally legislated to their constitutional limits.”). Here,
however, Congress’s de facto permanent ban reflects an intent
to maximally exercise the power to regulate and disarm all
felons for the full period constitutionally permitted. Further,
while I have noted above that sentencing alone is an imperfect
analogue for disarmament, Rahimi indicates that when historic
analogues establish a regulatory tradition of responding to a
particular threat of firearm misuse (the “why”) with
disarmament (the “how”), the imposition of imprisonment can
inform our understanding of the scope of the historic principle
asserted by the government. See Rahimi, 144 S. Ct. at 1902
(counseling that sentencing is relevant in analyzing the
contours of Congress’s power to disarm because the greater
penalty of imprisonment can be interpreted to include the lesser
penalty of disarmament.)
14 While this period is not a constitutional limit that has
previously been spelled out, I consider it to be a reasonable

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10
also consistent with the Second Amendment’s protections
against unfettered legislative discretion in disarming “the
people.”15 This approach also aligns with the Supreme Court’s
repeated statements that felon bans are presumptively lawful.16
Range’s success will likely open the floodgates for
similar pre-enforcement challenges. These Bruen challenges
are a costly, time-consuming solution for the fact-specific
determination of whether an individual still presents a threat of
public injury. Cabining the timeframe during which felons may
be disarmed will allow courts and individuals alike to readily
assess when rearmament is permitted,17 obviating a need for
estimation of the period during which an offender might be
disarmed based solely on his status as a felon. The duration
would of course also depend on the offender being able to
demonstrate that he did not present a risk of danger to the
public. In computing the period in a situation where there were
multiple offenses, the duration would depend on whether the
sentences for the offenses were imposed concurrently or
consecutively.
15 Id. at 1946 (Thomas, J. dissenting) (discriminatory
disarmaments “warn that when majoritarian interests alone
dictate who is ‘dangerous,’ and thus can be disarmed,
disfavored groups become easy prey.”).
16 See supra, n.8.
17 For example, while an offender convicted of a death-eligible
crime may be permanently disarmed, an offender, like Range,
who is convicted of an offense punishable by a maximum term
of imprisonment of five years, may be disarmed for five years
from the date his sentence is imposed before he has the
opportunity to show that he does not pose a danger to the public
and should have his rights restored.

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11
assessing each modern offense individually and comparing it
against Founding-era analogues on a case-by-case basis.18
Range long ago completed the punishment that
Pennsylvania deemed appropriate for his crime: three years of
probation, a $100 fine, $288.29 in costs and $2,458 in
restitution. The statutory maximum punishment for his
offense—five years—has long passed, and he has shown,
through years of good behavior, that he does not present a
threat to the public. Congress’s justification for suspending his
ability to possess a firearm no longer applies. The Second
Amendment requires restoration of his rights. He should be
permitted to petition for restoration upon a showing that his
maximum sentence has expired and that he would not present
18 Indeed, the establishment of fixed criteria for the
reinstatement of Second Amendment rights may induce
Congress to reverse its position on funding § 925(c). It may
also enable the Department of Justice to establish a procedure
for reviewing petitions for restoration of rights, as well as
providing a possible path to restoration prior to the expiration
of a convicted offender’s maximum sentence if that maximum
sentence is unduly extended. On the other hand, once an
offender’s maximum sentence expires, that individual would
still need to comply with state permitting schemes to rearm,
thereby preserving states’ ability to address situations where
restoration may be inappropriate.

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12
a risk of danger to the public if his gun rights were restored.19
For these reasons, I respectfully concur in the judgment.20
19 We do not share our dissenting colleagues’ concerns that our
proposal here conflicts with Congress’s pre-identified method
of rearmament, through § 925(c). See Dissent at 8 n.7. Our
proposal provides a method for the district courts to determine
the constitutionality of §922(g)(1), as applied to individual
offenders. Determining the limits of statutes’ constitutionality
has long been the province of the courts, and we do not
encroach on Congress’s power by doing so here. See Marbury
v. Madison, 5 U.S. 137, 180 (1803).
20 Judge Chung concurs because she does not believe Judge
Roth’s opinion is inconsistent with the majority approach and
because, in her view, the constitutional outer limit under Bruen
of the power to disarm felons like Range (e.g., those falling
into the third category identified in Williams, 113 F.4th at 659)
is coextensive with the maximum penalty for the offense of
conviction. This is because, in her view, it is historically the
longest period an individual could have been disarmed based
on felon status alone. While Founding-era legislatures did not
maximally exercise that authority to disarm in this manner,
Judge Chung agrees with Judge Roth that the § 922(g)(1)
statutory scheme demonstrates that Congress was taking a
maximalist approach towards disarmament in enacting it. As a
practical matter, Judge Chung’s view would mean that the
disability is removed automatically and rearmament would be
subject to state permitting schemes. Thus, she does not join
those portions of Judge Roth’s opinion concluding otherwise.

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1
SHWARTZ, Circuit Judge, dissenting, with whom
RESTREPO, Circuit Judge, joins.
Today, the Majority of our Court has again decided that
an individual convicted of fraud cannot be barred from
possessing a firearm. While the Majority states that its opinion
is narrow, the analytical framework it applies to reach its
conclusion could be read to render most, if not all, felon bans
unconstitutional. However, the Supreme Court has reiterated
that such bans are presumptively lawful, see United States v.
Rahimi, 144 S. Ct. 1889, 1902 (2024), and because there is a
historical basis for them, I respectfully dissent.
In New York State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1 (2022), the Supreme Court set forth a history-based
framework for deciding whether a firearm regulation is
constitutional under the Second Amendment. Courts must now
examine whether the “regulation [being reviewed] is part of the
historical tradition that delimits the outer bounds of the right to
keep and bear arms.” Id. at 19. To make 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 “relevantly similar” historical
analogues to justify the restriction. See id. at 24, 29; see also
Rahimi, 144 S. Ct. at 1898 (same).
The Majority’s analysis is inconsistent with the
Supreme Court’s jurisprudence and has far-reaching
consequences. First, the Majority downplays the Supreme
Court’s consistent admonishment that felon bans are
“longstanding” and “presumptively lawful.” District of
Columbia v. Heller, 554 U.S. 570, 626-27 & n.26 (2008);
McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). In

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Heller and McDonald, the Supreme Court stated that felon
bans are consistent with our historical tradition. Heller, 554
U.S. at 626-27; McDonald, 561 U.S. at 786. More recently,
majorities of the Court have reiterated that felon bans are
presumptively lawful, and notably did so, respectively, in (1)
the very case (Bruen) that explicitly requires courts to find
historical support for every firearm regulation, see Bruen, 597
U.S. at 17; and (2) in a case (Rahimi) that upheld a firearm
restriction after applying Bruen’s history and tradition test, see
Rahimi, 144 S. Ct. at 1902; see also Bruen, 597 U.S. at 72
(Alito, J., concurring) (explaining that Bruen did not “disturb[]
anything” the Court said in Heller or McDonald); id. at 81
(Kavanaugh, J., concurring, joined by Roberts, C.J.)
(“[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by
felons[.]” (first alteration in original) (quoting Heller, 554 U.S.
at 626)); id. at 129 (Breyer, J., dissenting, joined by
Sotomayor, J., & Kagan, J.) (“I understand the Court’s opinion
today to cast no doubt on . . . Heller’s holding [regarding
longstanding prohibitions.]”); Rahimi, 144 S. Ct. at 1902-03
(reiterating Heller’s holding that felon bans are presumptively
lawful and assigning error to the Court of Appeals for the Fifth
Circuit for “requir[ing] a ‘historical twin’ rather than a
‘historical analogue’”); id. at 1923 (Kavanaugh, J., concurring)
(noting Heller identified felon bans as a “categor[y] of
traditional exceptions to the [Second Amendment] right”).1
1 Other circuit courts have recognized the import of
these statements. E.g., United States v. Hunt, No. 22-4525,
2024 WL 5149611, at *4 (4th Cir. Dec. 18, 2024) (“Far from
abandoning Heller’s language about ‘longstanding’ and
‘presumptively lawful’ restrictions on felons possessing

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3
These statements show that felon bans have historical roots.2
See United States v. Jackson, 110 F.4th 1120, 1125-26 (8th Cir.
2024) (upholding the constitutionality of the federal felon ban
as applied to a non-violent drug offender based, in part, on the
Supreme Court’s statements); see also Vincent v. Garland, 80
F.4th 1197, 1202 (10th Cir. 2023) (giving effect to the Supreme
Court’s prior holdings implying “that it was constitutional to
deny firearm licenses to individuals with felony convictions”),
cert granted, judgment vacated and remanded, 144 S. Ct. 2708
(Mem) (2024); cf. United States v. Dubois, 94 F.4th 1284,
firearms, the Supreme Court has repeatedly reaffirmed its
applicability.”); United States v. Langston, 110 F.4th 408,
420 (1st Cir. 2024) (“[T]he Supreme Court has stated
repeatedly over sixteen years, from Heller to Rahimi, that
felon-in-possession laws are presumptively lawful.”); United
States v. Rambo, No. 23-13772, 2024 WL 3534730, at *2
(11th Cir. July 25, 2024) (per curiam) (unpublished) (relying
on the Supreme Court’s repeated statements, including in
Rahimi, about § 922(g)(1)’s presumptive validity to reject
constitutional challenges to the law); United States v. Young,
No. 23-10464, 2024 WL 3466607, at *8-9 (11th Cir. July 19,
2024) (per curiam) (unpublished) (same); United States v.
Johnson, No. 23-11885, 2024 WL 3371414, at *3 (11th Cir.
July 11, 2024) (per curiam) (unpublished) (same).
2 The Supreme Court also recognized that other firearm
regulations are “longstanding” and “presumptively lawful.”
Heller, 554 U.S. at 626-27, 627 n.26. Thus, the Majority’s
willingness to devalue the Supreme Court’s observations may
have consequences on regulations beyond the status-based ban
at issue here.

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4
1293 (11th Cir. 2024) (noting the Supreme Court has not
doubted the constitutionality of felon restrictions).
Second, the Majority incorrectly discounts the
importance of the Supreme Court’s emphasis on law-
abidingness as a limitation on the Second Amendment right.
While the Majority dismisses this language as “dicta,” Maj.
Op. at 12, the Bruen Court’s use of the phrase fourteen times
in the majority opinion alone highlights the significance that
this criterion played in its decision, see Bruen, 597 U.S. at 9,
15, 26, 29-31, 33 n.8, 38, 38 & n.9, 60, 70-71; see also Jackson,
110 F.4th at 1126 (noting Bruen’s repeated statements about a
law-abider’s right to possess arms).3 Indeed, the Bruen Court
approved of certain gun regulations that included criminal
background checks. Bruen, 597 U.S. at 38 n.9. While the
Majority suggests we are “overread[ing]” the phrase “law
abiding,” Maj. Op. at 9, 12, there is no question that one who
has a felony or felony-equivalent conviction could not be
characterized as law abiding. Thus, the Supreme Court’s
jurisprudence tells us that the right to bear arms is limited to
law abiders, and that felon bans are presumptively lawful.
Third, the Majority acknowledges but then disregards
important aspects of Bruen. The Bruen Court emphasized that
its test should not be a “regulatory straightjacket” and that
3 Although the Supreme Court recently concluded that
an individual may not be disarmed “simply because he is not
‘responsible[,]’” Rahimi, 144 S. Ct. at 1903 (quoting the term
“responsible” as used in Heller, 554 U.S. at 635, and Bruen,
597 U.S. at 70), it is notable that the Court did not foreclose
disarmament based on Heller and Bruen’s “law-abiding”
requirement.

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5
courts should look for a “historical analogue” to the challenged
regulation, not a “historical twin.” 597 U.S. at 30 (emphasis
omitted).4 Rahimi underscored this point, as it specifically
reversed the Fifth Circuit for requiring the latter. 144 S. Ct. at
1897-98, 1903 (holding that “the Second Amendment permits
more than just those regulations identical to ones that could be
found in 1791” and that the Court’s recent Second Amendment
precedents “were not meant to suggest a law trapped in
amber”). Despite these instructions, the Majority demands a
historical twin by requiring the Government to identify a
historical crime, including its punishment, that mirrors Bryan
Range’s conviction. At the founding, a fraud-based crime of
the type Range committed was considered a capital offense,
which obviously carries with it the loss of all possessory
rights.5 Folajtar v. Att’y Gen., 980 F.3d 897, 904-05 (3d Cir.
2020) (collecting authorities). As a result, history
demonstrates that fraudsters could lose their life, and hence
their firearms rights. Rahimi specifically blessed this type of
comparative reasoning. See Rahimi, 144 S. Ct. at 1902
(finding “permissible” “the lesser restriction of temporary
disarmament”). Therefore, if fraud was punishable by capital
punishment at the founding (i.e., de facto permanent
disarmament), then under Rahimi it is appropriate to draw a
4 Judge Krause’s comprehensive historical review is
consistent with our understanding and supports our discussion
of the history relevant to felon disarmament.
5 Even some noncapital offenses resulted in life
imprisonment and the forfeiture of the offender’s entire estate,
which contemplates the loss of all property, including
firearms. Act of Apr. 18, 1786, 2 Laws of the State of New
York 253, 260–61 (1886); Act of Nov. 27, 1700, 2 Statutes at
Large of Pennsylvania 12 (Wm. Stanley Ray ed., 1904).

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historical analogue to the lesser consequence of permanent
disarmament absent the death penalty. See United States v.
Diaz, 116 F.4th 458, 469 (5th Cir. 2024) (“[I]f capital
punishment was permissible to respond to theft, then the lesser
restriction of permanent disarmament that § 922(g)(1) imposes
is also permissible.”); see also id. at 472 (“At the time of the
Second Amendment’s ratification, those . . . guilty of certain
crimes . . . were punished permanently and severely. And
permanent disarmament was part of our country’s arsenal of
available punishments at that time.”).6
The Majority also rejects the analogy to now
unconstitutional status-based bans on Native Americans,
Blacks, Catholics, Quakers, loyalists, and others because
Range is not “part of a similar group today.” Maj. Op. at 20.
Whether Range is a member of one of these groups is
irrelevant. Rather, under Bruen, the relevant inquiry is why a
given regulation, such as a ban based on one’s status, was
enacted and how that regulation was implemented. Bruen, 597
U.S. at 29; see also Rahimi, 144 S. Ct. at 1898 (focusing the
inquiry on the historical “reasons” for disarmament); id. at
1925 (Barrett, J., concurring) (“‘Analogical reasoning’ under
Bruen demands a wide[] lens: Historical regulations reveal a
principle, not a mold.”). No matter how repugnant and
unlawful those bans are under contemporary standards, the
founders categorically disarmed the members of those groups
because they were viewed as disloyal to the sovereign. Range
v. Att’y Gen., 53 F.4th 262, 273-82 (3d Cir. 2022) (per curiam)
(collecting authorities), vacated, 56 F.4th 992 (3d Cir. 2023),
6 Notably, Diaz’s “underlying convictions d[id] not
inherently involve a threat of violence.” Diaz, 116 F.4th at 471
n.5.

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cert. granted, judgment vacated and remanded, 144 S. Ct. 2706
(Mem) (2024); see also Jackson, 110 F.4th at 1127 (observing
that the founding-era categorical prohibitions are relevant “in
determining the historical understanding of the right to keep
and bear arms”). The felon designation similarly serves as a
proxy for disloyalty and disrespect for the sovereign and its
laws. Such categorization is especially applicable here, where
Range’s felony involved stealing from the government, a crime
that directly undermines the sovereign.7 Therefore, the trust
7 The Majority also gives no weight to various
founding-era statutory violations that led to disarmament. See,
e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343–344; Act of
Apr. 20, 1745, ch. 3, N.C. Laws 69–70; see also Range, 53
F.4th at 281 (collecting additional authorities); cf. Rahimi, 144
S. Ct. at 1913, 1917-19 (Kavanaugh, J., concurring) (giving
weight to both pre- and post-ratification history). The Majority
ignores that history and tradition by contending that offenders
were only disarmed of the firearm they possessed at the time
of the violation and not barred from possessing firearms in the
future. See Maj. Op. at 23; but see Rahimi, 144 S. Ct. at 1897
(noting founding-era firearm restrictions that included both
restrictions on firearm use and bans of certain types of
weapons). From this, the Majority asserts crime-based bans
were not permanent (although in doing so, the Majority notably
ignores the permanent nature of capital punishment). Maj. Op.
at 22-23. Whether true or not, the federal felon ban under 18
U.S.C. § 922(g)(1) is not permanent. Congress specifically
identified ways to avoid the ban, such as by securing an
expungement, pardon, or having one’s civil rights restored. 18
U.S.C. § 921(a)(20). Additionally, although it is currently
unfunded, Congress enacted 18 U.S.C. § 925(c), which allows

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8
and loyalty reasons underlying the status-based bans imposed
at the founding show that the bans are a relevant historical
analogue for the present-day prohibition on felon possession.8
the Bureau of Alcohol, Tobacco, and Firearms to restore an
individual’s right to possess a firearm upon consideration of
the individual’s personal circumstances. See Logan v. United
States, 552 U.S. 23, 28 n.1 (2007).
Judge Krause thoughtfully proposes a proceeding at
which a felon may seek to be rearmed and Judge Roth
creatively suggests a durational limit to disarmament based on
the maximum penalty a felon faced. Their suggestions,
however, face at least one challenge. As stated above,
Congress has identified the ways a felon may be rearmed and
hence has already set the disarmament’s duration based on
whether the felon successfully invokes one of those identified
avenues for rearming. See generally Am. Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982) (“As in all cases involving
statutory construction, our starting point must be the language
employed by Congress,” and “[a]bsent a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive.” (internal quotation
marks omitted)). Bound by these clearly articulated
congressional remedies, federal courts lack the authority to
create the remedy that my colleagues each propose.
8 To the extent the Majority relies on the Supreme
Court’s statement in Rahimi that “our Nation’s tradition of
firearm regulation distinguishes citizens who have been found
to pose a credible threat to the physical safety of others from
those who have not[,]” 144 S. Ct. at 1902, that statement was
clearly cabined by the Court’s acknowledgement that its
analysis “start[ed] and stop[ped]” with the notion that there is

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Finally, the Majority’s approach will have far-reaching
consequences. Although the Majority states that its holding is
“narrow” because it is limited to Range’s individual
circumstances, Maj. Op. at 24, the only individual
circumstance the Majority identifies is that the penalty Range
faced differs from the penalty imposed for a similar crime at
“ample evidence that the Second Amendment permits the
disarmament of individuals who pose a credible threat to the
physical safety of others[,]” id. at 1898. Therefore, Rahimi is
best read as conclusively establishing that history and tradition
support disarming violent individuals, but not reaching
whether history and tradition likewise permit disarmament of
nonviolent offenders as that issue was undisputedly not before
the Court. Indeed, the Court went out of its way to state that it
was “not suggest[ing] that the Second Amendment prohibits
the enactment of laws banning the possession of guns by
categories of persons thought by a legislature to present a
special danger of misuse[,]” id. at 1901, which today includes
fraudsters, see 18 U.S.C. § 921(a)(20)(A) (excluding from the
disarmament law those convicted of “offenses pertaining to
antitrust violations, unfair trade practices, restraints of trade, or
other similar offenses relating to the regulation of business
practices,” but not persons convicted of the type of fraud at
issue in this case). This reading of Rahimi and our history and
tradition accord with the Court of Appeals for the Eighth
Circuit’s recent post-Rahimi § 922(g)(1) precedent. See
Jackson, 110 F.4th at 1121-22, 1127 (noting that “Rahimi does
not change” its previous ruling, and that the “historical record
suggests that legislatures traditionally possessed discretion to
disqualify . . . those who deviated from legal norms, not merely
to address a person’s demonstrated propensity for violence”);
accord Hunt, 2024 WL 5149611, at *6-7.

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the founding. As discussed above, Rahimi bolsters the view
that such fact is irrelevant under Bruen. Thus, the Majority’s
ruling is not cabined in any way and, in fact, rejects all
historical support for disarming non-violent felons. As a result,
the Majority’s analytical framework leads to only one
conclusion: there will be no, or virtually no, non-violent felony
or felony-equivalent crime that will bar an individual from
possessing a firearm.9 Rahimi counsels that cannot be so,
which is why the Majority’s broad ruling is contrary to both
the sentiments of the Supreme Court and our history.
I therefore respectfully dissent.
9 Additionally, and significantly, the Majority provides
no way for a felon to know whether his crime of conviction
prevents him from possessing a firearm. It also provides little
guidance to the district courts, and it will lead to confusion and
disuniformity as to how courts deal with factually similar
challenges to § 922(g)(1). Cf. Rahimi, 144 S. Ct. at 1926
(Jackson, J., concurring) (observing that “lower courts are
struggling” with Bruen’s “history-and-tradition test”).

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