Bryan Range v. Attorney General United States

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
________________

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 on September 19, 2022

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges

(Opinion filed November 16, 2022)
Michael P. Gottlieb (ARGUED)
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401

Counsel for Appellant

Kevin B. Soter (ARGUED)
Mark B. Stern
United States Department of Justice
Civil Division, Room 7222
950 Pennsylvania Avenue, NW
Washington, DC 20530

Counsel for Appellee

Joseph G.S. Greenlee (ARGUED)
Firearms Policy Coalition Action
5550 Painted Mirage Road
Suite 320
Las Vegas, NV 89149

Counsel for Amicus Appellant

________________

OPINION
________________

2
Per Curiam ∗

In District of Columbia v. Heller, the Supreme Court
held that “the right of the people to keep and bear Arms,”
enshrined in the Second Amendment, is an individual right.
554 U.S. 570, 595 (2008). While the precise contours of that
individual right are still being defined, the Court has repeatedly
stated that it did not question the “longstanding prohibition[]
on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having
pleaded guilty to the felony-equivalent charge of welfare fraud
under 62 Pa. Cons. Stat. § 481(a). He now brings an as-applied
challenge to 18 U.S.C. § 922(g)(1), contending that his
disarmament is inconsistent with the text and history of the
Second Amendment and is therefore unconstitutional under
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111 (2022). We disagree. Based on history and tradition, we
conclude that “the people” constitutionally entitled to bear
arms are the “law-abiding, responsible citizens” of the polity,
id. at 2131, a category that properly excludes those who have
demonstrated disregard for the rule of law through the
commission of felony and felony-equivalent offenses, whether
or not those crimes are violent. Additionally, we conclude that
even if Range falls within “the people,” the Government has
met its burden to demonstrate that its prohibition is consistent
with historical tradition. Accordingly, because Range’s
felony-equivalent conviction places him outside the class of
people traditionally entitled to Second Amendment rights, and

∗
We issue this precedential opinion per curiam to reflect both
its unanimity and the highly collaborative nature of its
preparation.

3
because the Government has shown the at-issue prohibition is
consistent with historical tradition, we will affirm the District
Court’s summary judgment in favor of the Government.

I. Factual and Procedural Background

In 1995, Range pleaded guilty to making false
statements about his income to obtain $2,458 of food stamp
assistance in violation of 62 Pa. Cons. Stat. § 481(a), a
conviction that was then classified as a misdemeanor
punishable by up to five years’ imprisonment. 1 Range was
sentenced to three years’ probation, $2,458 in restitution,
$288.29 in costs, and a $100 fine. He has paid the fine, costs,
and restitution.

Congress has deemed it “unlawful for any person . . .
who has been convicted in any court, of a crime punishable by
imprisonment for a term exceeding one year”—the definition
of a felony under both federal law, 18 U.S.C. § 3156(a)(3), and
traditional legal principles, see Felony, Black’s Law
Dictionary (11th ed. 2019)—to “possess in or affecting
commerce, any firearm or ammunition.” 2 18 U.S.C.

1
In 2018, Pennsylvania amended § 481(b) so that welfare fraud
involving “$1,000 or more” in fraudulently obtained assistance
became a “[f]elony of the third degree.” 62 Pa. Cons. Stat.
§ 481(b) (2018). However, the parties agree that the offense’s
categorization at the time of Range’s guilty plea controls for
purposes of our analysis.
2
Congress exercised its discretion to exclude certain categories
of offenses from this ban, such as “antitrust violations, unfair
trade practices, restraints of trade, or other similar offenses[.]”
18 U.S.C. § 921(a)(20)(A).

4
§ 922(g)(1). In deference to state legislatures, Congress also
raised the bar for “any State offense classified by the laws of
the State as a misdemeanor” by excluding from the prohibition
those misdemeanors “punishable by a term of imprisonment of
two years or less.” Id. § 921(a)(20)(B). 3 Put differently, it
treated state misdemeanors punishable by more than two years’
imprisonment as felony-equivalent offenses. As the maximum
punishment for Range’s offense was five years’ imprisonment,
his conviction subjected him to § 922(g)(1).

Three years after his conviction, Range attempted to
purchase a firearm but was “rejected by the instant background
check system.” App. 46, 68, 203. Range’s wife subsequently
bought him a deer-hunting rifle, and when that rifle was
destroyed in a house fire, she bought him another. 4 Sometime
in 2010 or 2011, believing his first rejection was an error,
Range again attempted to purchase a firearm. Again, he was
rejected by the instant background check system. Several
years after this rejection, Range “researched the matter” and
learned that he was barred from purchasing and possessing
firearms because of his welfare fraud conviction. App. 46,
205–06. Having “realize[d] that [he] was not allowed to

3
For ease of reference, we use the term “felony-equivalent” to
refer to these misdemeanors. We do not address whether
individuals convicted of misdemeanors carrying lesser
punishments can be disarmed consistent with the Second
Amendment.
4
A shotgun that Range’s father had given him as a teenager
was also destroyed in the fire. After his father died in 2008,
Range came into possession of his father’s pistol, but gave it
away within a month.

5
possess a firearm,” he sold his deer hunting rifle to a firearms
dealer. App. 201.

Range has hunted regularly for at least twenty years,
most frequently using a bow or a muzzleloader. During the
years that he possessed a deer hunting rifle, he routinely hunted
with it on the first morning and the two Saturdays of each two-
week season. He maintained a Pennsylvania hunting license at
the time he filed his lawsuit and averred in deposition
testimony that if not barred by § 922(g)(1), he would “for sure”
purchase another hunting rifle and “maybe a shotgun” for self-
defense in his own home. App. 46, 184, 197, 198, 200–02,
210.

In 2020, Range filed suit in the Eastern District of
Pennsylvania, seeking a declaratory judgment that § 922(g)
violates the Second Amendment as applied to him, as well as
an injunction to bar its enforcement against him. Both Range
and the Government moved for summary judgment. The
District Court applied the two-step test that this Court adopted
in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) and
amplified in Binderup v. Attorney General, 836 F.3d 336 (3d
Cir. 2016) (en banc), which asks whether (1) a regulation
burdens conduct protected by the right to keep and bear arms,
and (2) if so, whether that regulation survives means-end
scrutiny, id. at 346 (quoting Marzzarella, 614 F.3d at 89).
Applying Binderup, the District Court concluded that Range’s
challenge failed at step one because the Second Amendment
does not protect “unvirtuous citizens,” including any person
convicted of “a serious offense,” id. at 349, and Range’s
offense qualified as serious under the factors we had identified.

6
The District Court therefore granted the Government’s motion
for summary judgment, and this appeal followed.

While Range’s appeal was pending, the Supreme Court
issued Bruen, rejecting the means-end component of the
second step of Marzzarella and Binderup and holding the first
step was “broadly consistent with Heller” to the extent it
focused on “the Second Amendment’s text, as informed by
history.” 142 S. Ct. at 2127. The Government filed a letter
pursuant to Federal Rule of Appellate Procedure 28(j),
contending that Range’s Second Amendment challenge still
must fail under Bruen’s framework. Range responded with his
own Rule 28(j) letter, underscoring Bruen’s emphasis on
history and asserting “there is no history in 1791 that given the
facts of Mr. Range’s case that he would be disarmed and
prevented from owning and possessing firearms.” Dkt. No. 41
at 2. The panel ordered supplemental briefing on (1) Bruen’s
impact, if any, on the multifactor analysis developed in
Binderup and Holloway v. Attorney General, 948 F.3d 164 (3d
Cir. 2020); (2) whether Bruen shifts the burden to the
Government to prove that the challenger is outside the scope
of those entitled to Second Amendment rights, and whether the
Government has met that burden here; and (3) whether we
should remand this matter to the District Court. 5

5
The relevant factual record has been fully developed, and the
appeal raises “purely legal questions upon which an appellate
court exercises plenary review,” Comite’ De Apoyo A Los
Trabajadores Agricolas v. Perez, 774 F.3d 173, 187 (3d Cir.
2014) (quoting Hudson United Bank v. LiTenda Mortg. Corp.,
142 F.3d 151, 159 (3d Cir. 1998)), so we can apply Bruen and
resolve this matter without remand, see Hudson, 142 F.3d
at 159.

7
 In supplemental briefing on the effect of Bruen, Range
argues that the history and tradition of the Second Amendment
demonstrates that only individuals with a dangerous propensity
for violence, as opposed to peaceful citizens like him, can be
disarmed. Amici filed a brief on Range’s behalf, echoing his
contention that “[t]he historical tradition of disarming
dangerous persons provides no justification for disarming
Range.” Amicus Br. 26. The Government urges us to reject a
narrow focus on dangerousness, reaffirm our holdings in
Binderup and subsequent cases that the Second Amendment
extends only to people considered “virtuous citizens,” and
therefore hold that there is a longstanding tradition of
disarming citizens who are not law-abiding.

8
 With the benefit of Bruen, cases applying Bruen, 6 and
the parties’ briefing and arguments, we turn to the merits of
Range’s appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C.
§ 1291. We review the District Court’s order granting
summary judgment de novo, see Mylan Inc. v. SmithKline
Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), viewing the
facts and making all reasonable inferences in the non-movant’s
favor, see Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,
266–67 (3d Cir. 2005). Summary judgment is appropriate
where “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party is entitled to judgment as a
matter of law when the non-moving party fails to make “a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” 7 See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III. Bruen’s Doctrinal Impact

Applying Bruen’s historical focus, we conclude
§ 922(g)(1) comports with legislatures’ longstanding authority
and discretion to disarm citizens unwilling to obey the
government and its laws, whether or not they had demonstrated
a propensity for violence. We proceed in two parts. We begin
by explaining how the Supreme Court replaced our two-step
framework with a distinct test focused on the text and history
of the Second Amendment. Next, we examine disarmament
laws from the seventeenth to the nineteenth centuries to

9
6
Although we appear to be the first Court of Appeals to address
the constitutionality of 18 U.S.C. § 922(g)(1) since the
Supreme Court decided Bruen, a number of district courts have
done so. See United States v. Young, No. 22-CR-54, 2022 WL
16829260, at *11 (W.D. Pa. Nov. 7, 2022); United States v.
Minter, No. 22-CR-135, 2022 WL 10662252, at *6–7 (M.D.
Pa. Oct. 18, 2022); United States v. Trinidad, No. 21-CR-398,
2022 WL 10067519, at *3 (D.P.R. Oct. 17, 2022); United
States v. Raheem, No. 20-CR-61, 2022 WL 10177684, at *3
(W.D. Ky. Oct. 17, 2022); United States v. Carrero, No. 22-
CR-30, 2022 WL 9348792, at *3 (D. Utah Oct. 14, 2022);
United States v. Riley, No. 22-CR-163, 2022 WL 7610264, at
*10, *13 (E.D. Va. Oct. 13, 2022); United States v. Price, No.
22-CR-97, 2022 WL 6968457, at *9 (S.D.W. Va. Oct. 12,
2022); United States v. Daniels, No. 3-CR-83, 2022 WL
5027574, at *4 (W.D.N.C. Oct. 4, 2022); United States v.
Charles, No. 22-CR-154, 2022 WL 4913900, at *11 (W.D.
Tex. Oct. 3, 2022); United States v. Siddoway, No. 21-CR-205,
2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022); United
States v. Collette, No. 22-CR-141, 2022 WL 4476790, at *8
(W.D. Tex. Sept. 25, 2022); United States v. Coombes, No. 22-
CR-189, 2022 WL 4367056, at *8, *11 (N.D. Okla. Sept. 21,
2022); United States v. Hill, No. 21-CR-107, 2022 WL
4361917, at *3 (S.D. Cal. Sept. 20, 2022); see also United
States v. Ridgeway, No. 22-CR-175, 2022 WL 10198823, *2
(S.D. Cal. Oct. 17, 2022); United States v. Cockerham, No. 21-
CR-6, 2022 WL 4229314, at *2 (S.D. Miss. Sept. 13, 2022);
United States v. Jackson, No. CR 21-51, 2022 WL 4226229, at
*3 (D. Minn. Sept. 13, 2022); United States v. Burrell, No. 21-
20395, 2022 WL 4096865, at *3 (E.D. Mich. Sept. 7, 2022);

10
determine whether Range’s disarmament fits within the
nation’s history and tradition of the right to keep and bear arms.

United States v. Ingram, No. 18-CR-557, 2022 WL 3691350,
at *3 (D.S.C. Aug. 25, 2022).
7
While Range’s standing to bring this claim was not
challenged by Government nor discussed by the District Court,
“we have ‘an independent duty to satisfy ourselves of our
jurisdiction . . . .’” Bedrosian v. IRS, 912 F.3d 144, 149 (3d
Cir. 2018) (quoting Papotto v. Hartford Life & Acc. Ins. Co.,
731 F.3d 265, 269 (3d Cir. 2013)). The party invoking federal
jurisdiction must establish the three elements forming “the
irreducible constitutional minimum of standing”: injury in fact,
causation, and redressability. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992). “When an individual is subject to
[threatened enforcement of a law], an actual arrest,
prosecution, or other enforcement action is not a prerequisite
to challenging the law.” Susan B. Anthony List v. Driehaus,
573 U.S. 149, 158 (2014). Here, Range met his burden by
showing that the Government’s prohibition twice thwarted him
from purchasing a firearm and by averring that he would
purchase a hunting rifle but for § 922(g)(1). See Parker v.
District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“The
formal process of application and denial, however routine,
makes the injury to [the petitioner’s] alleged constitutional
interest concrete and particular.”), aff’d sub nom. District of
Columbia v. Heller, 554 U.S. 570 (2008); Dearth v. Holder,
641 F.3d 499, 503 (D.C. Cir. 2011) (affirming that the
petitioner suffered a cognizable injury where “the federal
regulatory scheme thwarts his continuing desire to purchase a
firearm”).

11
 A. Post-Bruen Standard for Second
Amendment Challenges

The Supreme Court’s decision in Bruen modifies our
prior test for analyzing Second Amendment challenges to 18
U.S.C. § 922(g)(1).

Before Bruen, we analyzed Second Amendment
challenges under a two-part test that was eventually adopted by
most of our sister Circuits. Marzzarella, 614 F.3d at 89; see
also Binderup, 836 F.3d at 346 (“Nearly every court of appeals
has cited Marzzarella favorably.”). At the first step, we
considered whether the challenged law burdened conduct
within the scope of the Second Amendment. Marzzarella, 614
F.3d at 89. In examining this subject, we observed that “the
right to bear arms was tied to the concept of a virtuous citizenry
and that accordingly, the government could disarm ‘unvirtuous
citizens[,]” including “any person who has committed a serious

12
criminal offense, violent or nonviolent.” 8 Binderup, 836 F.3d
at 348 (quoting United States v. Yancey, 621 F.3d 681, 684–85
(7th Cir. 2010)); see also Heller, 554 U.S. at 626–27 & n.26.
If the first step was met, we proceeded to the second step and
assessed whether the regulation withstood means-end scrutiny.
Marzzarella, 614 F.3d at 89.

Bruen, however, abrogated Binderup’s two-step inquiry
and directed the federal courts, in a single step, to look to the
Second Amendment’s text and “the Nation’s historical
tradition of firearm regulation.” 142 S. Ct. at 2126, 2130; see
also Frein v. Pa. State Police, 47 F.4th 247, 254, 256 (3d Cir.
2022) (recognizing Bruen abrogated our two-step

8
On that point, Judge Ambro’s three-judge plurality in
Binderup was joined by the seven judges who signed onto
Judge Fuentes’s partial concurrence and partial dissent. See
Binderup, 836 F.3d at 348–49; id. at 387, 389–90 (Fuentes, J.,
concurring in part). Judge Hardiman, joined by four other
judges, concurred in part and concurred in the judgment. Id. at
357 (Hardiman, J., concurring in part). Judge Hardiman
reasoned that under “traditional limitations on the right to keep
and bear arms” legislatures could disarm only individuals with
a “demonstrated proclivity for violence.” Id.; see also Folajtar
v. Att’y Gen., 980 F.3d 897, 912 (3d Cir. 2020) (Bibas, J.,
dissenting) (stating that “the historical limits on the Second
Amendment” permitted legislatures to disarm felons “only if
they are dangerous”), cert. denied sub nom. Folajtar v.
Garland, 141 S. Ct. 2511 (2021).

13
framework). 9 “Only 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.’” Bruen, 142 S. Ct. at 2126 (quoting
Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Additionally, because “the Constitution presumptively protects
[individual] conduct” covered by “the Second Amendment’s
plain text,” the Court explained, the government has the burden
of justifying its regulation of that conduct by demonstrating
“not simply [] that the regulation promotes an important

9
Given Bruen’s focus on history and tradition, Binderup’s
multifactored seriousness inquiry no longer applies. In the
context of a challenge based upon the challenger’s status post-
Binderup, Bruen requires consideration of whether there is a
historical foundation for governmental restrictions on firearms
possession based on the challenger’s specific status. If that
status changes, then the law would no longer apply to that
person. Thus, there is still room for “as-applied” challenges
even after Bruen.

14
interest,” but that “the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id. 10

Under Bruen, the question is whether the regulation at
issue is “relevantly similar” to regulations at the Founding. Id.
at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning,
106 Harv. L. Rev. 741, 773 (1993)). To make that
determination, we must employ “analogical reasoning” and
compare “how and why the regulations burden a law-abiding
citizen’s right to armed self-defense.” Id. at 2132–33.
Specifically, the government must “identify a well-established
and representative historical analogue, not a historical twin.”
Id. at 2133. “So even if a modern-day regulation is not a dead
ringer for historical precursors, it still may be analogous
enough to pass constitutional muster.” Id.

Bruen does not preclude our review of Range’s appeal
on the record before us. Bruen did not address the substantive
issues that we must now determine. Unlike the open-carry
licensing regime in Bruen that created a conduct-based
constraint on public carry, § 922(g)(1) imposes a status-based
restriction—namely, a possession ban on those convicted of
crimes punishable by more than one year in prison or by more

10
In Binderup, we had imposed the burden at step one on the
challenger, rather than on the government, 836 F.3d at 347, but
after Bruen, we note that the government must now meet this
burden in the district court, see 142 S. Ct. at 2126 (citing
United States v. Boyd, 999 F.3d 171, 185 (3d Cir. 2021)).
Because Bruen came down after the Government made its case
in the District Court, we look to its filings in the District Court
as well as its supplemental briefs on Bruen’s impact to find that
it has met its burden.

15
than two years in prison in the case of state law misdemeanors.
See 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, 1443 (2009)
(distinguishing between “what,” “who,” “where,” “how,” and
“when” firearm restrictions). Despite that difference, Bruen
still requires us to assess whether the Government has
demonstrated through relevant historical analogues that
§ 922(g)(1) “is consistent with this Nation’s historical tradition
of firearm regulation.” 142 S. Ct. at 2134. As set forth below,
the historical record shows that legislatures had broad
discretion to prohibit those who did not respect the law from
having firearms. Our assessment confirms that individuals like
Range, who commit felonies and felony-equivalent offenses,
are not part of “the people” whom the Second Amendment
protects. Therefore, § 922(g)(1) as applied to Range is
constitutional under the Second Amendment.

B. Scope of Second Amendment Rights in
Historical Perspective

As instructed by Bruen, we begin our analysis with the
text of the Second Amendment, which protects “the right of the
people to keep and bear Arms,” U.S. Const. amend. II, and
consider if Range, as a felon equivalent under 18 U.S.C.
§ 921(a)(20)(B), is among those protected by the Amendment.
Cf. Binderup, 836 F.3d at 357 (Hardiman, J., concurring in
part) (“[T]he Founders understood that not everyone possessed
Second Amendment rights. These appeals require us to decide
who count among ‘the people’ entitled to keep and bear
arms.”); United States v. Quiroz, No. 22-CR-00104, 2022 WL
4352482, at *10 (W.D. Tex. Sept. 19, 2022) (explaining “this

16
Nation does have a historical tradition of excluding specific
groups from the rights and powers reserved to ‘the people’”).

The language of Bruen provides three insights into
pertinent limits on “the people” whom the Second Amendment
protects. First, the majority characterized the holders of
Second Amendment rights as “law-abiding” citizens no fewer
than fourteen times. Bruen, 142 S. Ct. at 2122, 2125, 2131,
2133–34, 2135 n.8, 2138 & n.9, 2150, 2156; accord Heller,
554 U.S. at 625, 635. These included its holding that the New
York statute “violates the Fourteenth Amendment in that it
prevents law-abiding citizens with ordinary self-defense needs
from exercising their right to keep and bear arms,” Bruen, 142
S. Ct. at 2156, its explanation that the Second Amendment
“‘elevates above all other interests the right of law-abiding,
responsible citizens to use arms’ for self-defense,” id. at 2131
(quoting Heller, 554 U.S. at 635), and its instruction to identify
historical analogues to modern firearm regulations by
assessing “how and why the regulations burden a law-abiding
citizen’s right to armed self-defense,” id. at 2133. 11 The Court

11
See also Bruen 142 S. Ct. at 2122 (“[T]he Second and
Fourteenth Amendments protect the right of an ordinary, law-
abiding citizen to possess a handgun in the home for self-
defense.”); id. (“[O]rdinary, law-abiding citizens have a
similar right to carry handguns publicly for their self-
defense.”); id. at 2125 (explaining petitioners were “law-
abiding, adult citizens”); id. at 2133 (describing New York’s
argument that “sensitive places where the government may
lawfully disarm law-abiding citizens include all places where
people typically congregate” (quotations omitted)); id. at 2134
(reiterating that petitioners are “two ordinary, law-abiding,

17
also quoted nineteenth-century sources extending the right to
keep and bear arms to “all loyal and well-disposed
inhabitants,” and disarming any person who made “an
improper or dangerous use of weapons.” Id. at 2152 (emphasis
added) (quoting Cong. Globe, 39th Cong., 1st Sess., at 908–
909; and Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865).

Second, the Court clarified that, despite the infirmity of
New York’s discretionary may-issue permitting regime,
“nothing in our analysis should be interpreted to suggest the

adult citizens”); id. at 2135 n.8 (“[I]n light of the text of the
Second Amendment, along with the Nation’s history of firearm
regulation, we conclude below that a State may not prevent
law-abiding citizens from publicly carrying handguns because
they have not demonstrated a special need for self-defense.”);
id. at 2138 (“Nor is there any such historical tradition limiting
public carry only to those law-abiding citizens who
demonstrate a special need for self-defense.”); id. at 2138 n.9
(noting shall-issue public carry licensing laws “do not
necessarily prevent ‘law-abiding, responsible citizens’ from
exercising their Second Amendment right to public carry” but
rather “are designed to ensure only that those bearing arms in
the jurisdiction are, in fact, law-abiding, responsible citizens”
(quotation omitted)); id. at 2150 (observing “none [of the
historical regulations surveyed] operated to prevent law-
abiding citizens with ordinary self-defense needs from carrying
arms in public for that purpose”); id. at 2156 (“Nor, subject to
a few late-in-time outliers, have American governments
required law-abiding, responsible citizens to demonstrate a
special need for self-protection distinguishable from that of the
general community in order to carry arms in public.”
(quotations omitted)).

18
unconstitutionality of the 43 States’ ‘shall-issue’ licensing
regimes . . . [,] which often require applicants to undergo a
[criminal] background check” and “are designed to ensure only
that those bearing arms in the jurisdiction are, in fact ‘law-
abiding, responsible citizens.’” Id. at 2138 n.9 (quoting Heller,
554 U.S. at 635). These criminal background checks that the
Court indicated are constitutional are not limited to violent
offenses; shall-issue statutes typically disqualify any person
“prohibited from possessing a firearm under federal law.”
Wash. Rev. Code Ann. § 9.41.070(1)(a) (2021); accord Colo.
Rev. Stat. Ann. § 18-12-203(1)(c) (2021); Kan. Stat. Ann. §
75-7c04(a)(2) (2021); Miss. Code. Ann. § 45-9-101(2)(d)
(2022); N.H. Rev. Stat. Ann. § 159:6(I)(a) (2021); N.C. Gen.
Stat. Ann. § 14-415.12(b)(1) (2022).

Third, neither Bruen nor either of the Court’s earlier
explanations of the individual right to keep and bear arms casts
doubt on § 922(g)(1). To the contrary, Justice Scalia’s
majority opinion in Heller twice described “prohibitions on the
possession of firearms by felons” as both “longstanding” and

19
“presumptively lawful[.]” 554 U.S. 626–27 & n.26. 12 Writing
for the McDonald plurality, Justice Alito “repeat[ed] those
assurances.” 561 U.S. at 786. In Bruen, Justice Thomas’s
majority opinion acknowledged that the right to keep and bear
arms is “subject to certain reasonable, well-defined
restrictions,” Bruen, 142 S. Ct. at 2156 (citing Heller, 554 U.S.
at 581), and the concurrences by Justices Alito and Kavanaugh,
the latter joined by the Chief Justice, echoed the Court’s
assertions in Heller and McDonald. Id. at 2162 (Kavanaugh,
J., concurring) (quoting Heller, 554 U.S. at 626–27 & n.26);
id. at 2157 (Alito, J., concurring); see also United States v.
Coombes, No. 22-CR-00189, 2022 WL 4367056, at *9 (N.D.
Okla. Sept. 21, 2022) (“[T]he Bruen majority did not abrogate
its prior statements in Heller and McDonald.”).

Thus, although the Supreme Court has not provided an
“exhaustive historical analysis . . . of the full scope of the
Second Amendment,” Bruen, 142 S. Ct. at 2128; Heller, 554
U.S. at 626, Heller, McDonald, and Bruen provide a window

12
We note that Congress enacted the federal felon-in-
possession statute in 1938 and extended it to non-violent
offenses in 1961. See United States v. Booker, 644 F.3d 12, 24
(1st Cir. 2011); cf. Freedom from Religion Found., Inc. v.
County of Lehigh, 933 F.3d 275, 283 (3d Cir. 2019) (describing
a 75-year-old religious symbol as part of “our Nation’s public
tradition” and therefore “entitled . . . to a ‘strong presumption
of constitutionality’” under the First Amendment (quoting Am.
Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2085 (2019))).
As explained below, however, the history and tradition of
disarming those who have committed offenses demonstrating
disrespect for the rule of law dates back to at least the
seventeenth century.

20
into the Court’s view of the status-based disarmament of
criminals: that this group falls outside “the people”—whether
or not their crimes involved violence—and that § 922(g)(1) is
well-rooted in the nation’s history and tradition of firearm
regulation. 13

Our Court’s own review of the historical record
supports the Supreme Court’s understanding: Those whose
criminal records evince disrespect for the law are outside the
community of law-abiding citizens entitled to keep and bear
arms. 14 Our previous decisions, endorsed by several sister
courts of appeals, have expressed a related view in terms of the

13
It remains the case, of course, that the executive branch also
has authority to impose firearms-related directives and
regulations consistent with the history and tradition, e.g., in the
form of executive orders or through ATF or local executive
agencies.
14
By no means do we suggest that legislatures have carte
blanche to disarm anyone who commits any crime. Rather, we
decide only that the disarmament of individuals convicted of
felony and felony-equivalent offenses comports with the
Second Amendment.

21
theory of “civic virtue.” 15 See, e.g., Folajtar v. Att’y Gen., 980
F.3d 897, 902 (3d Cir. 2020); Binderup, 836 F.3d at 348;
United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir.
2012); United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir.
2010); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.
2010). Moreover, as detailed below, the pertinent historical
periods were replete with laws “relevantly similar” to the
modern prohibition on felon firearm possession because they
categorically disqualified people from possessing firearms

15
Numerous works of legal scholarship have espoused the
civic virtue theory of the Second Amendment. See, e.g., Don
B. Kates & Clayton E. Cramer, Second Amendment Limitations
and Criminological Considerations, 60 Hastings L.J. 1339,
1360 (2008); Saul Cornell & Nathan DeDino, A Well
Regulated Right: The Early American Origins of Gun Control,
73 Fordham L. Rev. 487, 492 (2004); Saul Cornell, “Don’t
Know Much About History”: The Current Crisis in Second
Amendment Scholarship, 29 N. Ky. L. Rev. 657, 672 (2002)
[hereinafter Cornell, Don’t Know Much About History]; David
Yassky, The Second Amendment: Structure, History, and
Constitutional Change, 99 Mich. L. Rev. 588, 626 (2000);
Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates,
Jr., The Second Amendment: A Dialogue, 49 L. & Contemp.
Probs. 143, 146 (1986); Anthony J. Zarillo III, Comment,
Going off Half-Cocked: Opposing as-Applied Challenges to
the “Felon-in-Possession” Prohibition of 18 U.S.C. §
922(g)(1), 126 Penn St. L. Rev. 211, 238 (2021). We concur
with the civic virtue theory inasmuch as a person’s lack of
virtue in the eyes of the community served as a proxy for
willingness to disobey the law.

22
based on a judgment that certain individuals were
untrustworthy parties to the nation’s social compact. 16

The Bruen Court warned that “not all history is created
equal” and catalogued the sources that are most probative of
the right’s original meaning. 142 S. Ct. at 2136. Emphasizing
that the right codified in the Second Amendment was a “pre-
existing right,” the Court saw particular relevance in “English
history dating from the late 1600s, along with American
colonial views leading up to the founding.” Id. at 2127 (citing
Heller, 554 U.S. at 595). 17 The Court made this same point in
Heller. 554 U.S. at 592. The Bruen Court also found highly
relevant post-ratification practices from the late eighteenth and
early nineteenth centuries. See Bruen, 142 S. Ct. at 2136. In
contrast, although the Court considered history from
Reconstruction to the late nineteenth century, it underscored
that it did so merely to confirm its conclusions and that
evidence from this period is less informative. See id. at 2137.

16
See Folajtar, 980 F.3d at 911 (“Legislatures have always
regulated the right to bear arms.”).
17
When assessing Founding-era precedents, we must assume
they derive from a coherent understanding of the right to keep
and bear arms shared among the American populace. See
Heller, 554 U.S. at 604–05 (“[T]hat different people of the
founding period had vastly different conceptions of the right to
keep and bear arms . . . simply does not comport with our
longstanding view that the Bill of Rights codified venerable,
widely understood liberties.”).

23
 1. England’s Restoration and Glorious

Revolution

We begin with the late seventeenth century, when the
English government repeatedly disarmed individuals whose
conduct indicated a disrespect for the sovereign and its
dictates. Also, the advent of the English Bill of Rights during
this period confirmed Parliament’s authority to delineate which
members of the community could “have arms . . . by Law.” 1
W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689).

In the contentious period following the English Civil
War, the restored Stuart monarchs disarmed nonconformist
(i.e., non-Anglican) Protestants. See Joyce Lee Malcolm, To
Keep and Bear Arms: The Origins of an Anglo-American Right
45 (1994) (describing how Charles II “totally disarmed . . .
religious dissenters”); Amicus Br. 6 (“Leading up to the
Glorious Revolution of 1688, . . . nonAnglican [sic] Protestants
were often disarmed.”). The reason the Crown seized
nonconformists’ weapons, according to Amici, is that non-
Anglican Protestants were dangerous. But the notion that
every disarmed nonconformist was dangerous defies common
sense. Moreover, Amici’s resort to dangerousness as the sole
explanation for this measure ignores Anglicans’ well-
documented concern that nonconformists would not obey the
King and abide by the law.

By definition, nonconformists refused to participate in
the Church of England, an institution headed by the King as a
matter of English law. See Church of England, BBC (June 30,
2011),
https://www.bbc.co.uk/religion/religions/christianity/cofe/cof

24
e_1.shtml (describing “the Act of Supremacy” enacted during
the reign of Henry VIII). Indeed, many refused to take
mandatory oaths recognizing the King’s sovereign authority
over matters of religion. See Frederick B. Jonassen, “So Help
Me?”: Religious Expression 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) (discussing nonconformists’ refusal to take
such oaths). Anglicans, in turn, accused nonconformists of
believing that their faith exempted them from obedience to the
law. See Christopher Haigh, ‘Theological Wars’: ‘Socinians’
v. ‘Antinomians’ in Restoration England, 67 J. Ecclesiastical
Hist. 325, 326, 334 (2016). In short, the historical record
suggests nonconformists as a group were disarmed because
their religious status was viewed as a proxy for disobedience
to the Crown’s sovereign authority and disrespect for the law,
placing them outside the civic community of law-abiding
citizens.

Even when Protestants’ right to keep arms was restored,
it was expressly made subject to the discretion of Parliament.
One year after the Glorious Revolution of 1688 replaced the
Catholic King James II with William of Orange and Mary,
James’s Protestant daughter, see Alice Ristroph, The Second
Amendment in a Carceral State, 116 Nw. U. L. Rev. 203, 228
(2021), 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,” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis
added). Thus, this declaration, which the Supreme Court has
described as the “predecessor to our Second Amendment,”

25
Bruen, 142 S. Ct. at 2141 (quoting Heller, 554 U.S. at 593),
reveals the “historical understanding,” id. at 2131, that the
legislature—Parliament—had the power and discretion to
determine who was sufficiently loyal and law-abiding to
exercise the right to bear arms. Cf. Lois G. Schwoerer, To Hold
and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev.
27, 47–48 (2000) (explaining how the English Bill of Rights
preserved Parliament’s authority to limit who could bear arms).

In 1689, Parliament enacted a status-based restriction
forbidding Catholics who refused to take an oath renouncing
their faith from owning firearms, except as necessary for self-
defense. An Act for the Better Securing the Government by
Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1,
ch. 15 (Eng. 1688); see Malcolm, supra, at 123. Proponents of
the view that disarmament depended exclusively on
dangerousness have argued that Catholics categorically posed
a threat of violence at this time. See Kanter v. Barr, 919 F.3d
437, 457 (7th Cir. 2019) (Barrett, J., dissenting); C. Kevin
Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv.
J.L. & Pub. Pol’y 695, 723 (2009). Again, however, this
interpretation not only rests on the implausible premise that all
Catholics were violent, but also ignores the more likely
historical reason for disarming this entire group: their
perceived disrespect for and disobedience to the Crown and
English law. That is manifest in the statute’s oath requirement.
When individuals swore that they rejected the tenets of
Catholicism, their right to own weapons was restored. An Act
for the Better Securing the Government by Disarming Papists
and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688).

Disavowal of religious tenets hardly demonstrated that
the swearing individual no longer had the capacity to commit

26
violence; rather, the oath was a gesture of allegiance to the
English government and an assurance of conformity to its laws.
Likewise, contemporaneous arguments against tolerating
Catholicism contended that Catholics’ faith subverted the rule
of law by placing the dictates of a “foreign power,” i.e., the
Pope, before English legal commands. See Diego Lucci, John
Locke on Atheism, Catholicism, Antinomianism, and Deism, 20
Etica & Politica/Ethics & Pol. 201, 228–29 (2018). The
disarmament of Catholics in 1689 thus provides another
example of the seizure of weapons from individuals whose
status demonstrated, not a proclivity for violence, but rather a
disregard for the legally binding decrees of the sovereign.

2. Colonial America

The earliest firearm legislation in colonial America
prohibited Native Americans, Black people, and indentured
servants from owning firearms. 18 See Michael A. Bellesiles,
Gun Laws in Early America: The Regulation of Firearms
Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 578–79
(1998). Amici contend that these restrictions affected
individuals outside the political community and so cannot
serve as analogues to contemporary restraints on citizens like

18
The status-based regulations of this period are repugnant (not
to mention unconstitutional), and we categorically reject the
notion that distinctions based on race, class, and religion
correlate with disrespect for the law or dangerousness. We cite
these statutes only to demonstrate legislatures had the power
and discretion to use status as a basis for disarmament, and to
show that status-based bans did not historically distinguish
between violent and non-violent members of disarmed groups.

27
Range. Amicus Br. 30–31; see also Carpio-Leon, 701 F.3d at
978 n.1 (concluding such individuals may not have been part
of “the people” at the Founding). But even accepting Amici’s
argument, colonial history furnishes numerous examples in
which full-fledged members of the political community as it
then existed—i.e., free, Christian, white men—were disarmed
due to conduct evincing inadequate faithfulness to the
sovereign and its laws.

28
 During the late 1630s, for example, an outspoken
preacher in Boston named Anne Hutchinson challenged the
Massachusetts Bay government’s authority over spiritual
matters and instead advocated personal relationships with the
divine. See Edmund S. Morgan, The Case Against Anne
Hutchinson, 10 New Eng. Q. 635, 637–38, 644 (1937).
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.
Id. at 648; Ann Fairfax Withington & Jack Schwartz, The
Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226
(1978). The colonial government also disarmed at least fifty-
eight of Hutchinson’s supporters, not because those supporters
had demonstrated a propensity for violence, but “to embarrass
the offenders,” as they were forced to personally deliver their
arms to the authorities in an act of public submission. James
F. Cooper, Jr., Anne Hutchinson and the “Lay Rebellion”
Against the Clergy, 61 New Eng. Q. 381, 391 (1988).
Disarming Hutchinson’s supporters, in other words, served to
shame colonists whose disavowal of the rule of law placed
them outside the Puritan’s civic community and obedience to
the commands of the government. 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).

Likewise, Catholics in the American colonies (as in
Britain) were subject to disarmament without demonstrating a
proclivity for violence. It is telling that, notwithstanding
Maryland’s genesis as a haven for persecuted English
Catholics, see Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103

29
Harv. L. Rev. 1409, 1424 (1990), Maryland—as well as
Virginia and Pennsylvania—confiscated firearms from their
Catholic residents during the Seven Years’ War, see Bellesiles,
supra, at 574; Joseph G.S. Greenlee, The Historical
Justification for Prohibiting Dangerous Persons from
Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). That
decision was not in response to violence; to the contrary,
Catholics had remained peaceable even when the colony’s
Anglican Protestants took control of its government and
required Catholics to take oaths recognizing the legal authority
of the Crown, rather than the Pope, over matters of religion.
See Michael Graham, S.J., Popish Plots: Protestant Fears in
Early Colonial Maryland, 1676–1689, 79 Cath. Hist. Rev. 197,
197 (1993) (“[L]ittle sustained opposition to [the Anglican
leadership] crystallized within the colony. What the Protestant
Associators had done . . . was widely accepted.”); Denis M.
Moran, Anti-Catholicism in Early Maryland Politics: The
Protestant Revolution, 61 Am. Cath. Hist. Soc’y 213, 235
(1950) (explaining how the oaths “asserted the king’s
supremacy in spiritual as well as in temporal matters”). In sum,
Protestants in the colonies—as in England—disarmed
Catholics not because they uniformly posed a threat of armed
resistance, but rather because the Protestant majorities in those
colonies viewed Catholics as defying sovereign authority and
communal values.

3. Revolutionary War

Revolutionary-era history furnishes other examples of
legislatures disarming non-violent individuals because their

30
actions evinced an unwillingness to comply with the legal
norms of the nascent social compact. 19

John Locke—whose views profoundly influenced the
American revolutionaries 20—argued that the replacement of
individual judgments of what behavior is transgressive with
communal norms is an essential characteristic of the social
contract. 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”). Members of a social
compact, he explained, have a civic obligation to comply with
communal judgments regarding proper behavior. 21

19
Again, we cite the repugnant, status-based regulations of an
earlier period—disarming individuals on the basis of political
affiliation or non-affiliation—merely to demonstrate the
Nation’s tradition of imposing categorical, status-based bans
on firearm possession.
20
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, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting)
(observing “John Locke [was] one of the thinkers who most
influenced the framers[]”).
21
Locke based this duty on the consent of those within the
political society; however, he contended that mere presence in
a territory constituted tacit consent to the laws of the reigning
sovereign. See Locke, supra, § 119 (“[I]t is to be considered
what shall be understood to be a sufficient declaration of a
man’s consent to make him subject to the laws of any

31
 In the newly proclaimed states, compliance with that
civic obligation translated to entitlement to keep and bear arms,
with many of the newly independent states enacting statutes
that required individuals, as a condition of keeping their arms,
to commit to the incipient social compact by swearing fidelity
to the revolutionary regime. 22 See 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 Law & Hist. Rev. 139, 158 (2007).

In Connecticut, for example, as hostilities with Britain
worsened, colonists denounced loyalists’ dereliction of their
duties to the civic community. The people of Coventry passed

government. There is a common distinction of an express and
a tacit consent which will concern our present case. . . . [E]very
man that hath any possessions or enjoyment of any part of the
dominions of any government doth thereby give his tacit
consent and is as far forth obliged to obedience to the laws of
that government, during such enjoyment, as any one under it;
whether this his possession be of land to him and his heirs for
ever, or a lodging only for a week, or whether it be barely
travelling freely on the highway; and, in effect, it reaches as far
as the very being of anyone within the territories of that
government.”).
22
We cite these laws as evidence of the original understanding
of the Second Amendment and the traditions concerning
firearms regulation in historical context. Of course, our social
and political awareness has obviously evolved significantly
since that time, and by today’s standards, the concept of
restricting fundamental rights based on political affiliation
would be repugnant to the Constitution, including the First
Amendment.

32
a resolution in 1774 stating loyalists were “unworthy of that
friendship and esteem which constitutes the bond of social
happiness, and ought to be treated with contempt and total
neglect.” G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist.
Rev. 273, 280 (1899) (describing this resolution as “a fair
sample of most of the others passed at this time”).
“Committees of Inspection” publicized the names and
addresses of suspected loyalists in local newspapers,
describing them as “persons held up to public view as enemies
to their country,” id. at 280–81, and in 1775, this stigmatization
of individuals suspected of infidelity to the inchoate United
States culminated in a statute prohibiting anyone who defamed
resolutions of the Continental Congress from keeping arms,
voting, or serving as a civil official, see id. at 282.

Pennsylvania likewise disarmed non-violent individuals
who were unwilling to abide by the newly sovereign state’s
legal norms. The legislature enacted a statute in 1777 requiring
all white male inhabitants above the age of eighteen to swear
to “be faithful and bear true allegiance to the commonwealth
of Pennsylvania as a free and independent state,” Act of June
13, 1777, § 1 (1777), 9 The Statutes at Large of Pennsylvania
from 1652–1801 110, 111 (William Stanley Ray ed., 1903),
and providing that those who failed to take the oath—without
regard to dangerousness or propensity for physical violence—
“shall be disarmed” by the local authorities, id. at 112–13, § 3.

This statute is particularly instructive because
Pennsylvania’s 1776 state constitution protected the people’s
right to bear arms. See Cornell, Don’t Know Much About
History, supra, at 670–71; Marshall, supra, at 724. Yet
Pennsylvania’s loyalty oath law deprived sizable numbers of
pacifists of that right because oath-taking violated the religious

33
convictions of Quakers, Mennonites, Moravians, and other
groups. Jim Wedeking, Quaker State: Pennsylvania’s Guide
to Reducing the Friction for Religious Outsiders Under the
Establishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006);
see also Thomas C. McHugh, Moravian Opposition to the
Pennsylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965)
(M.A. thesis, Lehigh University) (on file with the Leigh
Preserve Institutional Repository). So while Amici contend
that individuals disarmed under loyalty oath statutes “posed a
grave danger and were often violent,” Amicus Br. 12,
Pennsylvania’s disarmament of this sizable portion of the
state’s populace cannot be explained on that ground. See
Heller, 554 U.S. at 590 (“Quakers opposed the use of arms not
just for militia service, but for any violent purpose whatsoever.
. . .”); cf. Folajtar, 980 F.3d at 908 n.11 (explaining “[r]efusing
to swear an oath” does not “qualify as dangerous”).

Instead, the Pennsylvania legislature forbade Quakers
and other religious minorities from keeping arms because their
refusal to swear allegiance demonstrated that they would not
submit to communal judgments embodied in law when it
conflicted with personal conviction. See Wedeking, supra, at
51–52 (describing how Quakers were “penal[ized] for
allegiance to their religious scruples over the new
government”). The act, in other words, was “an effort by
Pennsylvania’s Constitutionalist party to restrictively define
citizenship”—i.e., what eventually became “the people”—“to
those capable of displaying the requisite virtue.” Cornell,
Don’t Know Much About History, supra, at 671.

Exercising its broad authority to disarm individuals who
disrespected the rule of law, Virginia’s General Assembly also
passed a loyalty oath statute in 1777. An Act to Oblige the

34
Free Male Inhabitants of this State Above a Certain Age to
Give Assurance of Allegiances to the Same, and for Other
Purposes ch. III (1777), 9 Statutes at Large; Being a Collection
of All the Laws of Virginia, from the First Session of the
Legislature in the Year 1619 281, 281 (William W. Hening ed.,
1821). That law disarmed “all free born male inhabitants of
this state, above the age of sixteen years, except imported
servants during the time of their service” who refused to swear
their “allegiance and fidelity” to the state. Id. But these
individuals could not have been considered dangerous spies or
threats of violence: the statute still required disarmed
individuals to attend militia trainings and run drills without
weapons, id. at 282—an indignity previously inflicted upon
free Black men, Churchill, supra, at 160. Instead, this use of
disarmament as a method of public humiliation reveals the
statute’s true social function: distinguishing those unwilling to
follow the dictates of the new government from law-abiding
members of the civic community.

In sum, the “how and why,” Bruen, 142 S. Ct. at 2133,
of these oath statutes’ burden on the right to bear arms teaches
us two things about the historical understanding of status-based
prohibitions. First, in keeping with Locke’s view that
compliance with communal judgment is an inextricable feature
of political society, these laws “defined membership of the
body politic” by disarming individuals whose refusal to take
these oaths evinced not necessarily a propensity for violence,
but rather a disrespect for the rule of law and the norms of the
civic community. Churchill, supra, at 158. Second,
legislatures were understood to have the authority and broad
discretion to decide when disobedience with the law was
sufficiently grave to exclude even a non-violent offender from
the people entitled to keep and bear arms. Cf. Dru Stevenson,

35
In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev.
1573, 1586 (2022) (“[T]he founders thought the legislature
should decide which groups pose a threat to the social order or
the community.”).

4. Ratification Debates

The ensuing deliberations over whether to ratify the
Constitution similarly illustrate the Founding generation’s
understanding of legislatures’ power and discretion over
disarmament of those not considered law-abiding.

In Pennsylvania, debates between the Federalists and
Anti-Federalists “were among the most influential and widely
distributed of any essays published during ratification.” 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). Those essays included “The Dissent of the
Minority,” which was published by the state’s Anti-Federalist
delegates, id. at 232–33, and which the Supreme Court has
viewed as “highly influential” to the adoption of the Second
Amendment, Heller, 554 U.S. at 604. The amendment
proposed by the Dissent of the Minority stated:

[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,

36
 or real danger of public injury from
individuals.

2 Bernard Schwartz, The Bill of Rights: A Documentary
History 665 (1971) (emphasis added).

As the Dissent of the Minority’s proposal makes clear,
members of the Founding generation viewed “[c]rimes
committed—violent or not—[as] . . . an independent ground
for exclusion from the right to keep and bear arms.” Binderup,
836 F.3d at 349 (quotation omitted); see also Folajtar, 980
F.3d at 908–09. Amici insist that the proposal’s crime and
danger clauses must be read together as authorizing the
disarmament of dangerous criminals only. See Amicus Br. 16;
see also Greenlee, supra at 267; Binderup, 836 F.3d at 367
(Hardiman, J., concurring in part). But the Dissent of the
Minority’s use of the disjunctive “or” refutes this
counterargument: The dissenters distinguished between
criminal convictions and dangerousness, and provided that
either could support disarmament. See, e.g., United States v.
Woods, 571 U.S. 31, 45–46 (2013) (explaining the “ordinary
use” of “or” “is almost always disjunctive”—i.e., “the words
that it connects are to ‘be given separate meanings’”) (quoting
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)).

The Dissent of the Minority therefore comports with the
longstanding tradition in English and American law of
disarming even non-violent individuals whose actions
demonstrated a disrespect for the rule of law as embodied in
the sovereign’s binding norms.

37
 5. Other Non-Violent Offenses

Punishments meted out for a variety of non-violent
offenses between the seventeenth and nineteenth centuries
provide additional support for legislatures’ authority to disarm
even non-violent offenders.

Historically, several non-violent felonies were
punishable by death and forfeiture of the perpetrator’s entire
estate. See Folajtar, 980 F.3d at 904–05. As the Government
observes, those offenses included larceny, repeated forgery,
and false pretenses—all of which involve deceit or the
wrongful deprivation of another’s property and closely
resemble Range’s welfare fraud offense. Appellees’ Supp. Br.
7–8. 23 A fortiori, given the draconian punishments that
traditionally could be imposed for these types of non-violent
felonies, the comparatively lenient consequence of
disarmament under 18 U.S.C. § 922(g)(1) is permissible. 24

23
See Answering Br. 15 (citing 1 Wayne R. LaFave,
Substantive Criminal Law § 2.1(b) (3d ed. 2017); Francis
Bacon, Preparation for the Union of Laws of England and
Scotland, in 2 The Works of Francis Bacon 160, 163–64 (Basil
Montagu ed., Cary & Hart 1844); and 2 Jens David Olin,
Wharton’s Criminal Law § 28:2 (16th ed. 2021)).
24
The Kanter dissent takes issue with this analysis in part
because the death penalty was not always imposed. 919 F.3d
at 458–62 (Barrett, J., dissenting). How punishments were
meted out is beside the point. What matters is the exposure.
See id. at 459 (“[M]any crimes remained eligible for the death
penalty . . . .”).

38
 Additionally, legislatures in the American colonies and
United States authorized the seizure of firearms from
individuals who committed non-violent, misdemeanor hunting
offenses. 25 In 1652, New Netherlands passed an ordinance that
forbid “firing within the jurisdiction of this city [of New
Amsterdam] or about the Fort, with any guns at Partridges or
other Game that may by chance fly within the city, on pain of
forfeiting the Gun . . . .” 1652 N.Y. Laws 138. A 1745 North
Carolina law prohibited nonresidents from hunting deer in “the
King’s Wast” and stated that any violator “shall forfeit his gun”
to the authorities. Act of Apr. 20, ch. III (1745), 23 Acts of the
North Carolina General Assembly 218, 219 (1805). New
Jersey enacted a statute “for the preservation of deer, and other
game” in 1771 that punished non-residents caught trespassing
with a firearm by seizing the individuals’ guns. 1771 N.J.
Laws 19–20.

State legislatures continued to enact such laws after the
Revolution. To protect the sheep of Naushon Island,
Massachusetts passed a statute requiring armed trespassers on

25
We appreciate that these laws involved the isolated
disarmament of the firearm involved in the offense, not a ban
on possession as in the other laws we discuss above.
Nevertheless, they support the notion that legislatures’ power
to strip citizens of their arms was not limited to cases involving
violent persons or offenses.

39
the island to forfeit their guns. 26 An Act for the Protection and
Security of the Sheep and Other Stock on Tarpaulin Cove
Island, Otherwise Called Naushon Island, and on
Nennemessett Island, and Several Small Islands Contiguous,
Situated in the County of Dukes County § 2 (1790), 1 Private
and Special Statutes of the Commonwealth of Massachusetts
258, 259 (Manning & Loring ed., 1805). Virginia and
Maryland punished individuals who hunted wild fowl on rivers
at night by seizing their guns. 1832 Va. Acts 70; 1838 Md.
Laws 291–92. And Delaware law required non-residents who
hunted wild geese on the state’s waterways to forfeit their guns,
even though the statute specified that this hunting offense was
a misdemeanor. 12 Del. Laws 365 (1863).

As these centuries of hunting statutes show, legislatures
repeatedly exercised their authority to decide when non-violent

26
A plaintiff suing the trespasser could alternatively seek the
value of the trespasser’s firearms. An Act for the Protection
and Security of the Sheep and Other Stock on Tarpaulin Cove
Island, Otherwise Called Naushon Island, and on
Nennemessett Island, and Several Small Islands Contiguous,
Situated in the County of Dukes County § 2 (1790), 1 Private
and Special Statutes of the Commonwealth of Massachusetts
258, 259 (Manning & Loring ed., 1805).

40
offenses were sufficiently grave transgressions to justify
limiting violators’ ability to keep and bear arms. 27

* * * * *

We draw three critical lessons from the historical record
examined above. First, legislatures traditionally used status-
based restrictions to disqualify categories of persons from
possessing firearms. Second, they did so not merely based on
an individual’s demonstrated propensity for violence, but
rather to address the threat purportedly posed by entire
categories of people to an orderly society and compliance with
its legal norms. Third, legislatures had, as a matter of separated
powers, both authority and broad discretion to determine when

27
We note that history and tradition may indicate that
pretextual disarmament is inconsistent with the Second
Amendment. Cf. 1 William Blackstone, Commentaries app.
*300 (St. George Tucker ed., Birch & Small 1803) (decrying
how “[i]n England, the people have been disarmed, generally,
under the specious pretext of preserving the game”);
Drummond v. Robinson Twp., 9 F.4th 217, 227–29 (3d Cir.
2021). Range does not claim his conviction was pretextual,
however, so we leave the issue for another day.

41
individuals’ status or conduct evinced such a threat sufficient
to warrant disarmament. 28

28
Deference to state legislatures not only accords with
longstanding national tradition, but also respects state
legislatures’ unique ability to channel local concerns and
values into criminal law. See Joshua M. Divine, Statutory
Federalism and Criminal Law, 106 Va. L. Rev. 127, 188
(2020) (“[F]ederal reliance on state law disturbs uniformity by
baking into federal law variations in state law. But far from
being a downside, regional disparity is an asset.”); see also
Paul H. Robinson & Tyler Scot Williams, Mapping American
Criminal Law: Variations Across the 50 States 4 (2018)
(surveying state variation in the incorporation of desert,
deterrence, and incapacitation norms into their criminal laws).
There is good reason that the criminal codes of arid states like
Nevada and Colorado include offenses like diverting irrigation
water, Nev. Rev. Stat. § 207.225 (2021), and causing prairie
fires, Colo. Rev. Stat. § 18-13-109 (2022), which the code of a
state like Maryland does not.
In addition to preserving federalism and the separation
of powers, upholding legislative determinations of when
crimes are sufficiently serious to warrant disarmament avoids
forcing “judges to ‘make difficult empirical judgments’ about
‘the costs and benefits of firearms restrictions,’ especially
given their ‘lack [of] experience’ in the field.” Bruen, 142 S.
Ct. at 2130 (quoting McDonald, 561 U.S. at 790–91). And as
explained above, judicial determinations of when a crime is
sufficiently violent have proven infeasible to apply in other
contexts. See Binderup, 836 F.3d at 410 (Fuentes, J.,
concurring in part).

42
IV. Range’s Claims

Having identified the appropriate test and reviewed the
historical evidence in this area, we now turn to Range’s claims.

Range committed an offense that Pennsylvania has
classified as a misdemeanor punishable by more than two
years’ imprisonment, 62 Pa. Cons. Stat. § 481(a), and Congress
has concluded is sufficiently serious to exclude Range from the
body of law-abiding, responsible citizens entitled to keep and
bear arms, see 18 U.S.C. §§ 921(a)(20)(B), 922(g)(1). 29 That
determination fits comfortably within the longstanding
tradition of legislation disarming individuals whose actions

29
Some of our esteemed colleagues have expressed concerns
about the breadth of state offenses that trigger disarmament
under 18 U.S.C. § 922(g)(1). Binderup, 836 F.3d at 372 n.20
(Hardiman, J., concurring in part); Folajtar, 980 F.3d at 921
(Bibas, J., dissenting). But we do not perceive any inherent
absurdity in a state’s interest in punishing drug offenders, see
Ariz. Rev. Stat. Ann. § 13–3405, or individuals who abuse
public services like recycling programs, see Mich. Comp.
Laws Ann. § 445.574a(1)(d), or libraries, see 18 Pa. Cons. Stat.
Ann. § 3929.1. Indeed, enforcement of the laws cited by our
colleagues illustrates why legislatures have chosen to designate
them as felonies. Cf. United States v. Bocook, 59 F.3d 167,
167 (4th Cir. 1995) (describing a prosecution for uttering
obscene language by means of radio communication when a
defendant “broadcast[s] unauthorized radio messages to
aircraft and air traffic controllers” in which he “used obscene
language, harassed a female air traffic controller, made threats
to shoot down aircraft, and transmitted recorded music,
weather reports, and warnings about his own activities”).

43
evince a disrespect for the rule of law. Interpreting the text of
the Second Amendment in light of the right’s “historical
background,” Bruen, 142 S. Ct. at 2127 (quoting Heller, 554
U.S. at 592), we conclude that Range’s criminal conviction
placed him beyond the ambit of “the people” protected by the
Second Amendment.

Range asserts that “[t]he Government has failed to meet
its burden of proving that the plaintiff’s conviction places him
outside the scope of those entitled to Second Amendment
rights based on the historical analysis of those who can be
disarmed.” 30 Appellant’s Supp. Br. 1. Notwithstanding the

30
Moreover, in his supplemental brief, Range appears to raise
the issue that a permanent ban on firearm possession lacks a
historical basis. See Appellant’s Supp. Br. 3–4. As to
arguments concerning the duration of a ban, Congress has
addressed it in two ways. First, Congress has exempted any
person whose conviction “has been expunged, or set aside or
for which a person has been pardoned or has had civil rights
restored” from disarmament. § 921(a)(20). Second, Congress
also permitted the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) to restore individuals’ ability to possess
firearms upon consideration of their personal circumstances,
criminal record, and the public interest. 18 U.S.C. § 925(c).
But these assessments proved so resource intensive for ATF
that Congress has refused to fund the program since 1992. See
Logan v. United States, 552 U.S. 23, 28 n.1 (2007); S. Rep. No.
102-353 (1992). As we previously noted, “[i]f [the petitioner]
and others in his position wish to seek recourse, it is to the
legislature, and not to the judiciary, that efforts should be
directed.” Folajtar, 980 F.3d at 911; Binderup, 836 F.3d at
402-03 (Fuentes, J., concurring in part and dissenting in part).

44
historical evidence surveyed above, Range contends that his
disarmament is inconsistent with the nation’s tradition of
firearm regulation “because he is not dangerous.” Opening Br.
28. Echoing positions expressed by some judges, Amici agree,
arguing “English and American tradition support firearm
prohibitions on dangerous persons” but “[t]here is no tradition
of disarming peaceable citizens.” Amicus Br. 2; see Folajtar,
980 F.3d at 912 (Bibas, J., dissenting); Kanter, 919 F.3d at 451
(Barrett, J., dissenting); Binderup, 836 F.3d at 369 (Hardiman,
J., concurring in part). Our review of the historical record
convinces us otherwise. Non-violent individuals were
repeatedly disarmed between the seventeenth and nineteenth
centuries because legislatures determined that those
individuals lacked respect for the rule of law and thus fell
outside the community of law-abiding citizens. That
longstanding tradition refutes Range’s constrictive account of
Anglo-American history as prohibiting the government from
disarming non-violent individuals.

Amici offer a few statutes that purportedly prove
legislatures’ inability to disarm non-violent offenders, but
these laws confirm our view. Specifically, Amici cite a 1785
Massachusetts law that forbid tax collectors and sheriffs from
embezzling tax revenue. Amicus Br. 32 (citing 1785 Mass.
Laws 516). 31 Although the statute permitted estate sales to
recover embezzled funds, “the necessities of life—including
firearms—could not be sold.” Id. Likewise, Amici discuss a
1650 Connecticut law exempting weapons from execution in
civil actions and four statutes providing similar protections for

31
We note that Amici cited to a 1786 Massachusetts law, but
the language Amici references comes from Chapter 46 of the
1785 Act of Massachusetts.

45
militia arms. Id. at 33 (citing The Public Records of the Colony
of Connecticut, Prior to the Union with New Haven Colony,
May 1665, at 537 (J. Hammond Trumbull ed., 1850); 1 Stat.
271, § 1 (1792); Archives of Maryland Proceedings and Acts
of the General Assembly of Maryland, at 557 (William Hand
Browne ed., 1894); An Act for Settling the Militia ch. XXIV
(1705), 3 Statutes at Large: Being a Collection of all the Laws
of Virginia from the First Session of the Legislature, in the
Year 1619 335, 339 (William W. Hening ed., 1823); An Act
for the Settling and Better Regulation of the Militia ch. II
(1723), 4 Statutes at Large: Being a Collection of all the Laws
of Virginia from the First Session of the Legislature, in the
Year 1619 118, 121 (William W. Hening ed., 1820). But Amici
place more weight on those laws than they can rightly bear.
The fact that legislatures did not always exercise their authority
to seize the arms of individuals who violated the law does not
show that legislatures never could do so. Rather, these laws
underscore legislatures’ power and discretion to determine
when disarmament is warranted. And, as detailed above,
Range and Amici’s contention that legislatures lacked the
authority to disarm non-violent individuals “flatly misreads the
historical record.” Heller, 554 U.S. at 603.

We believe the Supreme Court’s repeated
characterization of Second Amendment rights as belonging to
“law-abiding” citizens supports our conclusion that individuals
convicted of felony-equivalent crimes, like Range, fall outside

46
“the people” entitled to keep and bear arms. 32 See, e.g., Bruen,
142 S. Ct. at 2122; Heller, 554 U.S. at 635. As Judge
Hardiman explained in his Binderup concurrence, Second
Amendment challenges to § 922(g)(1) “require us to decide
who count among ‘the people’ entitled to keep and bear arms”
because “the Founders understood that not everyone possessed
Second Amendment rights.” 836 F.3d at 357 (Hardiman, J.,
concurring in part); see also Oral Arg. at 49:54 (Amici
discussing which individuals fall outside “the people”).

32
A concern with which district courts have wrestled when
assessing the constitutionality of 18 U.S.C. § 922(g)(1) after
Bruen is that interpreting “the people” in the Second
Amendment to exclude individuals convicted of offenses
would deviate from that phrase’s meaning in the First and
Fourth Amendments. Cf. Collette, 22-CR-141, 2022 WL
4476790, at *8 (“[T]his Nation has a longstanding tradition of
exercising its right—as a free society—to exclude from ‘the
people’ those who squander their rights for crimes and
violence.”), with Coombes, No. 22-CR-189, 2022 WL
4367056, at *4 (“[T]he court declines to carve out felons from
the scope of the Second Amendment’s protection of ‘the
people.’”). But Justice Stevens’s dissent leveled that very
criticism against the Heller majority: “[T]he Court limits the
protected class to ‘law-abiding, responsible citizens.’ But the
class of persons protected by the First and Fourth Amendments
is not so limited; for even felons (and presumably irresponsible
citizens as well) may invoke the protections of those
constitutional provisions.” 554 U.S. at 644 (Stevens, J.,
dissenting). However, our reasoning applies solely to the
Second Amendment and does not imply any limitation on the
rights of individuals convicted of felony and felony-equivalent
offenses under other provisions of the Constitution.

47
Focusing our inquiry on the meaning of “the people” also
comports with the Lockean principles that animated Founding-
era disarmaments of individuals whose unwillingness to abide
by communal norms placed them outside political society. Cf.
Heller, 554 U.S. at 580 (suggesting “the people” refers to “all
members of the political community” (emphasis added));
Cornell, Don’t Know Much About History, supra, at 671
(contending the right to keep and bear arms was historically
“limited to those members of the polity who were deemed
capable of exercising it in a virtuous manner”).

But even if we were to adopt the contrary view, treating
Range as covered by “the Second Amendment’s plain text[,]”
Bruen, 142 S. Ct. at 2126, would “yield the same result,”
Kanter, 919 F.3d at 452 (Barrett, J., dissenting). Bruen
requires the Government to (1) provide relevant historical
analogues demonstrating a traditional basis for disarming those
who commit felonies and felony-equivalent crimes, and (2)
show that the challenger was convicted of a felony or felony-
equivalent offense. Cf. Charles, No. 22-CR-154, 2022 WL
4913900, at *9 (“[R]eading Bruen robotically would require
the Government in an as-applied challenge[] to find an analogy
specific to the crime charged. . . . That’s absurd.”).

48
 The Government has satisfied its burden on both
prongs. First, as discussed above, our Nation’s tradition of
firearm regulation permits the disarmament of those who
committed felony or felony-equivalent offenses. See
Holloway, 948 F.3d at 172 (“We ‘presume the judgment of the
legislature is correct and treat any crime subject to § 922(g)(1)
as disqualifying unless there is a strong reason to do
otherwise.’” (quoting Binderup, 836 F.3d at 351)). The
Government has established as much through its detailed
discussion of our pre-Bruen jurisprudence concerning the “the
historical justification for stripping felons [of Second
Amendment rights], including those convicted of offenses
meeting the traditional definition of a felony.” Appellees’
Supp. Br. 2–3, 7 (quoting Binderup, 836 F. 3d at 348); see also
Answering Br. 11–12.

The Government has also shown that Range was
convicted of a felony or felony-equivalent offense. Range
pleaded guilty to welfare fraud in violation of 62 Pa. Cons. Stat.
§ 481(a), a misdemeanor punishable by up to five years’
imprisonment. Range’s conviction therefore qualifies as a
felony-equivalent offense under both federal law, 18 U.S.C.
§ 921(a)(20)(B), and traditional legal principles, see Felony,
Black’s Law Dictionary (11th ed. 2019). Accordingly, Range
may be disarmed consistent with the Second Amendment. See
Answering Br. at 16 (citing Hamilton v. Pallozzi, 848 F.3d 614,
627 (4th Cir. 2017))

V. Conclusion

We have conducted a historical review as required by
Bruen and we conclude that Range, by illicitly taking welfare
money through fraudulent misrepresentation of his income, has

49
demonstrated a rejection of the interests of the state and of the
community. He has committed an offense evincing disrespect
for the rule of law. As such, his disarmament under 18 U.S.C.
§ 922(g)(1) is consistent with the Nation’s history and tradition
of firearm regulation.

For the above reasons, we will affirm the judgment of
the District Court.

50