Patrick Atkinson v. Merrick B. Garland ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1557
PATRICK ATKINSON,
Plaintiff-Appellant,
v.
MERRICK GARLAND, Attorney General of the United States,
and STEVEN DETTELBACH, Director of the Bureau of Alcohol,
Tobacco, Firearms and Explosives,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-291 — John Robert Blakey, Judge.
____________________
ARGUED NOVEMBER 8, 2022 — DECIDED JUNE 20, 2023
____________________
Before SYKES, Chief Judge, and WOOD and SCUDDER, Circuit
Judges.
SCUDDER, Circuit Judge. Before us is a Second Amendment
challenge to the federal felon-in-possession statute, 18 U.S.C.
§ 922(g)(1). The appeal reaches us in the wake of the Supreme
Court’s decision in New York State Rifle & Pistol Association v.
Bruen, 142 S. Ct. 2111 (2022). That development is significant
2 No. 22-1557
because Bruen announced a new framework for analyzing re-
strictions on the possession of firearms. No longer, the Su-
preme Court made clear, can lower courts balance interests—
of an individual’s right to possess a firearm and the state’s
commitment to promoting personal or public safety—to re-
solve the constitutionality of the challenged restriction. The
new approach anchors itself exclusively in the Second
Amendment’s text and the pertinent history of firearms regu-
lation, with the government bearing the burden of “affirma-
tively prov[ing] that its firearms regulation is part of the his-
torical tradition that delimits the outer bounds of the right to
keep and bear arms.” Id. at 2127.
The Supreme Court decided Bruen after the district court
faithfully applied our precedent and rejected Patrick Atkin-
son’s Second Amendment challenge to § 922(g)(1). The par-
ties’ briefing on appeal only scratches the surface of the his-
torical analysis now required by Bruen. In these circum-
stances, we think the best course is to remand to allow the
district court to undertake the Bruen analysis in the first in-
stance.
I
A
Before Bruen, the Supreme Court’s decisions in District of
Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. 742 (2010), defined our approach to resolving
Second Amendment challenges to firearms restrictions. Those
cases established that the Second Amendment “protects a per-
sonal right to keep and bear arms for lawful purposes, most
notably for self-defense within the home.” McDonald, 561 U.S.
at 780 (plurality). The right was not, however, “unlimited.”
No. 22-1557 3
Heller, 554 U.S. at 626. Nodding to commentators from “Black-
stone through the 19th-century cases,” the Court acknowl-
edged that some firearms restrictions could pass constitu-
tional muster. Id.Every circuit court responded to Heller by developing the
same two-step test. See Bruen, 142 S. Ct. at 2126–27. At the first
step, the government could defend the challenged restriction
by showing that the regulated activity fell outside the scope
of the Second Amendment as originally understood. See, e.g.,
Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017). If his-
tory proved inconclusive or suggested the regulated activity
was not “categorically unprotected,” we then conducted a
means-end analysis, weighing the severity of the regulation
against the ends the government sought to achieve. See id.(quoting Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir.
2011)).
Bruen leaves no room for doubt: text and history, not a
means-end analysis, now define the controlling Second
Amendment inquiry. See 142 S. Ct. at 2131 (emphasizing that,
although “judicial deference to legislative interest balancing
is understandable—and elsewhere, appropriate—it is not def-
erence that the Constitution demands here [under the Second
Amendment]”). Accordingly, when the Second Amend-
ment’s “plain text” covers the regulated conduct, the govern-
ment has only one way to defend the regulation—by proving
that it is “consistent with this Nation’s historical tradition of
firearm regulation.” Id. at 2126.
Alongside announcing this standard, the Court offered
guidance on what is certain to prove most challenging for the
lower courts—how to interpret and define the relevant body
of regulatory history. The pertinent question, the Court
4 No. 22-1557
explained, is what the Founders understood the Second
Amendment to mean. See id. at 2136. The Court therefore cau-
tioned against giving too much weight to laws passed before
or after the Founding, although a “long, unbroken line of
common-law precedent stretching from Bracton to Blackstone
is far more likely to be part of our law than a short-lived, 14th-
century English practice.” Id. Post-Founding history may also
play a role in guiding “our interpretation of an ambiguous
constitutional provision.” Id. at 2137 (quoting NLRB v. Noel
Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring in judg-
ment)).
Bruen directs us to canvass these historical periods for sim-
ilar regulations. When “a challenged regulation addresses a
general societal problem that has persisted since the 18th cen-
tury, the lack of a distinctly similar historical regulation ad-
dressing that problem is relevant evidence that the challenged
regulation is inconsistent with the Second Amendment.” Id.
at 2131. So too if the Founders used “materially different
means” to address the same problem. Id. “And if some juris-
dictions actually attempted to enact analogous regulations
during this timeframe, but those proposals were rejected on
constitutional grounds, that rejection surely would provide
some probative evidence of unconstitutionality.” Id.To defend “modern regulations that were unimaginable at
the founding,” the government may reason by analogy. Id. at
2132. That does not require pinpointing a “dead ringer”—a
“well-established and representative historical analogue” will
do. Id. at 2133 (emphasis in original). The proper inquiry, in
short, turns on whether the “modern and historical regula-
tions impose a comparable burden on the right of armed self-
defense and whether that burden is comparably justified.” Id.No. 22-1557 5
In Bruen itself, the Court applied this inquiry to a New
York law that required an applicant to demonstrate “proper
cause” to receive a permit for public carry of a firearm. The
state’s proper-cause requirement did not survive the Court’s
exacting textual and historical analysis. See id. at 2138 (con-
cluding that the state neither “demonstrate[d] a tradition of
broadly prohibiting the public carry of commonly used fire-
arms for self-defense” nor identified “any such historical tra-
dition limiting public carry only to those law-abiding citizens
who demonstrate a special need for self-defense”).
The Court devoted most of its attention to Founding-era
laws, while also paying some regard to historical analogues
dating as far back as 1328 and as recent as the late 1800s. Many
of the laws drawn from this full historical range proved to be
poor analogues because they were significantly less restrictive
than New York’s licensing scheme. A pre-Founding English
law, providing that Englishmen could not “go nor ride armed
by night nor by day,” banned public carry of weapons only
when intended to cause terror. See id. at 2139 (quoting Statute
of Northampton 1328, 2 Edw. 3 c. 3 (Eng.)). Early colonial laws
were not only few and far between but also carried the same
intent requirement. See id. at 2142–43. The New York law, by
contrast, banned public carry across the board for citizens
who could not convince authorities that they had a special
need to carry their weapons publicly.
Some mid-19th-century statutes banned concealed carry,
but they typically left the right to open carry intact. See id. at
2146–47. Surety statutes—which forced some individuals to
post bond before carrying weapons publicly—applied only to
individuals likely to pose a threat, yet even those individuals
6 No. 22-1557
could carry weapons publicly after posting bond. See id. at
2148–50.
At other points, the government’s analogues were not
enough to show a tradition of similar regulation. Some laws
were comparable to the New York statute in severity but were
outliers in their time. See id. at 2153. Other laws were not en-
forced often or effectively enough to establish a historical tra-
dition of comparable firearms regulation. See id. at 2149–50.
Still others impacted a limited swath of the total population,
faced little judicial scrutiny, and came too late after the
Founding to shed much light on the original understanding
of the Second Amendment. See id. at 2154–55.
B
Patrick Atkinson filed this lawsuit before Bruen. His crim-
inal history included a 1998 guilty plea to felony mail fraud.
After maintaining an otherwise clean record for 24 years, he
decided he wanted a gun. But 18 U.S.C. § 922(g)(1) bars gun
possession for anyone who, like Atkinson, has a conviction for
“a crime punishable by imprisonment for a term exceeding
one year.” So he brought this suit under 18 U.S.C. § 925A to
challenge the constitutionality of § 922(g)(1) as the law ap-
plied to him.
Relying on our pre-Bruen framework, the district court
granted a motion from the government and dismissed the
case. Our precedent, the district court explained, compelled
that outcome, as we had previously rejected challenges to
§ 922(g)(1) mirroring the one that Atkinson lodged. See, e.g.,
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019); Hatfield v. Barr, 925
F.3d 950 (7th Cir. 2019). But we did so under the means-end
inquiry after determining that the historical record on felons
No. 22-1557 7
possessing firearms was “inconclusive.” Kanter, 919 F.3d at445–47. Because our precedent moved straight to the means-
end analysis, the district court did not conduct the historical
analysis that Bruen now requires.
II
The parties’ briefing does not grapple with Bruen. The best
way forward, as we see it, is to return the case to the district
court for a proper, fulsome analysis of the historical tradition
supporting § 922(g)(1).
A
For its part, the government would have us avoid a Bruen
analysis altogether. Invoking Heller and McDonald, it urges us
to uphold § 922(g)(1) based on oft-quoted dicta describing
felon-in-possession laws as “presumptively lawful.” Heller,
554 U.S. at 626–27 & n.26; see also McDonald, 561 U.S. at 786(plurality) (“We repeat [Heller’s] assurances here.”). The gov-
ernment sees further support for its view in Bruen itself. See
142 S. Ct. at 2138 n.9 (explaining that “nothing in our analysis
should be interpreted to suggest the unconstitutionality” of
public carry licensing schemes requiring applicants to pass a
criminal background check).
Nothing allows us to sidestep Bruen in the way the gov-
ernment invites. Yes, the Court seemed to find no constitu-
tional fault with a state requiring a criminal background
check before issuing a public carry permit. But in no way did
the Court suggest that its observation resolved cases like the
one Atkinson brought challenging § 922(g)(1). We must un-
dertake the text-and-history inquiry the Court so plainly an-
nounced and expounded upon at great length.
8 No. 22-1557
The government’s brief before us includes some historical
analysis, but nothing close to what would satisfy the demand-
ing standard set forth in Bruen. In addition to some Founding-
era commentary, the government mentions that felons like At-
kinson were historically subject to execution and estate forfei-
ture, as well as the loss of other civic rights.
No doubt these historical details may prove relevant on
remand. But the government’s analysis as a whole falls well
short of Bruen’s demands. Remember what the Court itself
did in Bruen after rejecting a means-end approach and an-
nouncing the text-and-history standard—it rolled up its
sleeves and examined a wealth of laws and commentary span-
ning several centuries, paying close attention to the enforce-
ment and impact of various regulations. The government
points us to only a couple of isolated historical facts and inci-
dents, offering no detail about their application and import.
This does not suffice under Bruen.
Since oral argument, the government has also urged us to
conclude, without any historical analysis, that the plain text
of the Second Amendment does not cover felons. See, e.g.,
United States v. Sitladeen, No. 22-1010, 2023 WL 2765015, at *2–
5 (8th Cir. Apr. 4, 2023) (relying on circuit precedent and con-
cluding that unauthorized aliens are not part of “the people”
protected by the Second Amendment). Bruen left this compli-
cated issue unresolved. Although we analyzed the scope of
the Second Amendment right before Bruen, we have not re-
turned to the issue since then. See United States v. Meza-Rodri-
guez, 798 F.3d 664, 669–72 (7th Cir. 2015) (defining “the peo-
ple” for purposes of the Second Amendment as members of
the national community with substantial connections to the
No. 22-1557 9
country). We cannot resolve the issue without the benefit of
more substantial briefing on remand.
Atkinson’s historical analysis falls short, too. He now ar-
gues that § 922(g)(1) is facially unconstitutional because his-
tory supports disarming only “dangerous” persons with con-
victions for “violent” felonies. Alternatively, he urges us to
conclude that history requires an individualized assessment
of the danger that he poses. To support these contentions, At-
kinson leans on Founding-era commentary and various laws
disarming politically dangerous groups.
But although Atkinson has shown some support for the
idea that a group’s “dangerousness” is what mattered to the
Founders, he does not provide much historical basis for indi-
vidualized assessments or for delineating between individu-
als who committed violent versus non-violent crimes. The
distinction is not an obvious consequence of many of the laws
that Atkinson, and his amicus especially, discuss. Nor does
Atkinson tell us what the Founders would have viewed as a
“violent” crime and what evidence they would consider in
making that determination.
Aided by the parties’ briefing and the benefits of the ad-
versarial process, the district court is best suited to conduct
the required analysis in the first instance. As our dissenting
colleague underscores, the constitutional issues at stake are
weighty. Before we resolve the question before us, the parties
should have a full and fair opportunity to develop their posi-
tions before the district court in accordance with the princi-
ples of party presentation. Our review, which all agree is in-
evitable, will be better for what transpires on remand in the
district court.
10 No. 22-1557
B
Several interrelated and non-exhaustive questions may
help focus the proper analysis on remand:
1. Does § 922(g)(1) address a “general societal
problem that has persisted since the 18th cen-
tury?” Bruen, 142 S. Ct. at 2131. If this problem
existed during a relevant historical period, did
earlier generations address it with similar or
“materially different means?” Id.
2. What does history tell us about disarming those
convicted of crimes generally and of felonies in
particular? Among other sources, the parties
could look to commentary from the Founders,
proposals emerging from the states’ constitu-
tional ratifying conventions, any actual prac-
tices of disarming felons or criminals more gen-
erally around the time of the Founding, and
treatment of felons outside of the gun context
(to the extent this treatment is probative of the
Founders’ views of the Second Amendment).
When considering historical regulations and
practices, the key question is whether those reg-
ulations and practices are comparable in sub-
stance to the restriction imposed by § 922(g)(1).
To answer the question, the district court and
the parties should consider how the breadth, se-
verity, and the underlying rationale of the his-
torical examples stack up against § 922(g)(1).
3. Are there broader historical analogues to
§ 922(g)(1) during the periods that Bruen
No. 22-1557 11
emphasized, including, but not limited to, laws
disarming “dangerous” groups other than fel-
ons? The parties should not stop at compiling
lists of historical firearms regulations and prac-
tices. The proper inquiry, as we have explained,
should focus on how the substance of the histor-
ical examples compares to § 922(g)(1).
4. If the district court’s historical inquiry identifies
analogous laws, do those laws supply enough
of a historical tradition (as opposed to isolated
instances of regulation) to support § 922(g)(1)?
On this front, the parties should provide details
about the enforcement, impact, or judicial scru-
tiny of these laws, to the extent possible.
5. If history supports Atkinson’s call for individu-
alized assessments or for a distinction between
violent and non-violent felonies, how do we de-
fine a non-violent or a non-dangerous felony?
And what evidence can a court consider in as-
sessing whether a particular felony conviction
was violent? For instance, can a court consider
the felony conviction itself, the facts of the un-
derlying crime, or sentencing enhancements?
Bruen shows that these distinctions should also
have firm historical support. See 142 S. Ct. at
2132–33 (explaining that the court must assess
whether modern and historical regulations are
“relevantly similar,” including in terms of how
and why the regulations burden gun rights).
Both sides should cast a wider net and provide more detail
about whatever history they rely on. For its part, the district
12 No. 22-1557
court may accept amicus briefs to assist with its inquiry and,
of course, may benefit from recent decisions from other courts
and indeed the analysis embodied in our dissenting col-
league’s opinion. See, e.g., post, at 24–36; Range v. Att’y Gen.,
No. 21-2835, 2023 WL 3833404 (3d Cir. June 6, 2023) (conclud-
ing that § 922(g)(1) is unconstitutional as applied to an appel-
lant convicted of a welfare fraud offense); United States v. Jack-
son, No. 22-2870, 2023 WL 3769242 (8th Cir. June 2, 2023) (re-
jecting an as-applied challenge).
Although the government must conduct a more substan-
tial historical analysis on remand, it may also develop its con-
tention that the plain text of the Second Amendment does not
protect felons and other offenders impacted by § 922(g)(1).
III
We recognize that asking these questions is easier than an-
swering them. As our dissenting colleague likewise empha-
sizes, the historical analysis required by Bruen will be difficult
and no doubt yield some measure of indeterminacy. The par-
ties may be unable altogether to find answers to certain ques-
tions, may find incomplete information in response to others,
and perhaps in some instances may identify substantial his-
torical information pertinent to one or another dimension of
the required inquiry. In the end, the district court (and surely
us too, when this case or another one like it returns) will have
to give the best answer available to whether the government
has carried its burden of “affirmatively prov[ing] that its fire-
arms regulation is part of the historical tradition that delimits
the outer bounds of the right to keep and bear arms.” Bruen,
142 S. Ct. at 2127.
No. 22-1557 13
For these reasons, we VACATE and REMAND for further
proceedings.
14 No. 22-1557
WOOD, Circuit Judge, dissenting. The question before us in
this case could not be more important: may individual rights
under the Second Amendment be curtailed or denied only on
the basis of a granular, case-by-case analysis, or does Con-
gress have the power to enact categorical restrictions? And if
some categorical limits are possible and others are not, what
sorting principle may or must we use to separate the permis-
sible from the impermissible?
My colleagues have taken the position that we need fur-
ther input from the district court before we can tackle the pre-
sent case. With respect, I do not agree with them. The issue
before us is whether 18 U.S.C. § 922(g)(1) is compatible with
the Second Amendment. That statute prohibits those con-
victed of a crime for which the punishment exceeds one year
in prison (usually felonies) from possessing a firearm or am-
munition. This is a pure question of law, and our considera-
tion is therefore de novo. If we think that we would benefit
from further exploration of the issue, in light of the interven-
ing decision in New York State Rifle & Pistol Association, Inc. v.
Bruen, 142 S. Ct. 2111 (2022), nothing prevents us from asking
the parties to submit supplemental briefs. Exactly that process
occurs when we are confronted with an unfamiliar question
of foreign law—another setting in which we have the author-
ity to conduct our own research. See Fed. R. Civ. P. 44.1. Just
so here: we must decide whether, in light of the textual and
historical materials to which Bruen directs us, section
922(g)(1) is constitutional. Remanding this case to the district
court will not reduce our responsibility to evaluate that ques-
tion independently when the case inevitably returns to us.
My own assessment of the materials that now govern Sec-
ond Amendment questions per Bruen convinces me that the
No. 22-1557 15
categorical prohibition created by section 922(g)(1) passes
muster under the Constitution. I would therefore affirm the
district court now, without saddling it with a Ph.D.-level his-
torical inquiry that necessarily will be inconclusive.
I
Section 922(g)(1) 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 ship or
transport … or possess … any firearm or ammunition.” Sev-
eral questions come immediately to mind, including whether
the weapon (or ammunition) being shipped, transported, or
possessed falls within the scope of the Second Amendment,
and whether the accused has committed the type of predicate
offense to which the statute refers. I will say only a few words
about those antecedent questions, because they do not play a
significant role in the present case. I will then move on to the
heart of the matter: whether the individual right to bear arms
recognized in the Second Amendment can be regulated by
Congress in the manner we see in section 922(g)(1).
At a high level of generality, few would disagree with the
proposition that not all weapons qualify as the “arms” to
which the Second Amendment refers—that is, weapons that
ordinary people are entitled to use for purposes of self-de-
fense or sport. Contrary to the textualist position, it is also
plain that this is not an amendment whose meaning was fro-
zen in time upon its addition to the Constitution. In District of
Columbia v. Heller, 554 U.S. 570 (2008), the Court made the lat-
ter point clear when it said that “the Second Amendment ex-
tends, prima facie, to all instruments that constitute bearable
arms, even those that were not in existence at the time of the found-
ing.” 554 U.S. at 582 (emphasis added). But that did not extend
16 No. 22-1557
Second Amendment protections to everything that could be
described as a weapon. Courts are compelled to draw lines,
and argument is always possible near the boundaries. But
some things are relatively clear. No one doubts that handguns
are “bearable arms” and thus the type of weapon covered by
the Amendment. Well beyond the other side of this imaginary
line are devices such as rocket-launchers or nuclear warheads,
both of which are reserved for the exclusive use of the mili-
tary. Because Atkinson wants the right to have and to use
weapons that, as far as this record shows, fit comfortably
within the Amendment, I will assume for purposes of this dis-
sent that the issue before us has nothing to do with the type of
weapon involved here.
The nature of the offense that has swept Atkinson under
the prohibition in section 922(g)(1) is another matter. As I
noted a moment ago, the statute disqualifies all persons who
have been convicted in any court of “a” crime punishable by
more than a year’s imprisonment. (Interestingly, the term
“any court” does not include courts of foreign countries. See
Small v. United States, 544 U.S. 385 (2005).) The relevant of-
fenses do not include “any Federal or State offenses pertaining
to antitrust violations, unfair trade practices, restraints of
trade, or other similar offenses relating to the regulation of
business practices”; nor do they include “any State offense
classified by the laws of the State as a misdemeanor and pun-
ishable by a term of imprisonment of two years or less,” or
convictions that have been expunged or pardoned. 18 U.S.C.
§ 921(a)(20). Convictions for which civil rights have been re-
stored also do not count, unless there is an express provision
exempting firearms from the restoration. Id.; see generally
Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (en
banc). But those limitations do not help Atkinson. His
No. 22-1557 17
predicate offense was a serious federal crime: felony mail
fraud in violation of 18 U.S.C. § 1341, which is punishable by
up to 20 years’ imprisonment. He pleaded guilty in 1998 to
defrauding one of his clients by paying $6,000 to an insider
involved in a hiring transaction. His sentence was a light
one—six months’ home confinement, two years’ supervised
release, and a $15,000 fine.
In his briefing before this court, Atkinson urges us to re-
gard this as a trivial offense, not worthy of permanent loss of
Second Amendment rights. He also suggests that his own par-
ticipation in the fraudulent scheme was “unwitting” and that
we should account for his relative lack of culpability. At the
same time, he claims that he fully accepts responsibility for
his actions and his status as someone convicted of a felony.
Even so, he urges, the Second Amendment does not support
the categorical exclusion of all felons from gun possession,
ownership, or use.
Atkinson’s invitation for us to conduct an independent
evaluation of the gravity of his own crime for purposes of sec-
tion 922(g)(1) is out of bounds, in my view. The Judiciary can-
not be in the position of looking at prior offenses identified by
Congress and second-guessing Congress’s decisions both
with respect to criminalization and to sentencing exposure.
Should a judge who believes that we should attack this na-
tion’s illegal drug problem with addiction treatment rather
than criminal penalties rule that drug dealers did not commit
sufficiently heinous crimes to deserve the loss of their gun
rights? Should a judge ignore a crime such as tax evasion if it
is committed by a person who has fallen on hard times, finan-
cially speaking, and who is trying to find money for her fam-
ily? I see no principled way to go down that road. Worse,
18 No. 22-1557
Atkinson seems to be inviting us to consider the particular
facts of every case, to see if the conduct underlying the con-
viction ought to support restrictions on gun rights. Such a sys-
tem would impose impossible burdens on courts and prose-
cutors and would lead to an arbitrary patchwork of deci-
sions—as far from the rule of law as one could imagine.
With that in mind, I will continue on the assumption that
Atkinson’s second argument is the serious one in this case:
whether a permanent restriction on Second Amendment
rights for all felons lies within Congress’s powers, or if instead
we must go offense-by-offense, as we do under the categorical
approach for armed career criminals, see 18 U.S.C. § 924(c),
and decide which felony convictions call for that measure.
The Supreme Court’s guidance satisfies me that the Court rec-
ognizes that certain across-the-board disqualifications from
gun ownership have always been part of the U.S. approach to
gun regulation and thus have the kind of historical support
that Bruen demands. I say this in full awareness of the fact that
Supreme Court decisions are not to be read as statutes. This
court noted the problem with such an approach in United
States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (up-
holding 18 U.S.C. § 922(g)(9) against a Second Amendment
challenge), and I have no quarrel with the admonition to treat
language in opinions as informative rather than as a compre-
hensive code.
II
So what has the Supreme Court told us about general lim-
itations on the right to bear arms? I would begin with its well-
known passage in Heller:
No. 22-1557 19
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and
for whatever purpose. … For example, the majority of the
19th-century courts to consider the question held that pro-
hibitions on carrying concealed weapons were lawful un-
der the Second Amendment or state analogues. … Alt-
hough we do not undertake an exhaustive historical anal-
ysis today of the full scope of the Second Amendment,
nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the car-
rying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.
554 U.S. at 626–27 (citations omitted); see also Bruen, 142 S. Ct.
at 2128 (repeating the reference to Blackstone). The Heller
Court went on to recognize “another important limitation on
the right to keep and carry arms”—it was limited to “the sorts
of weapons” that were “in common use at the time.” 554 U.S.
at 627. Let me pause for a moment on the phrase “in common
use.” In Heller, the Court explained it this way: “[United States
v. Miller, 307 U.S. 174 (1939)] said … that the sorts of weapons
protected were those ‘in common use at the time.’ 307 U.S. at
179. We think that limitation is fairly supported by the histor-
ical tradition of prohibiting the carrying of ‘dangerous and
unusual weapons.’” 554 U.S. at 627.
The Court’s reference to historical tradition indicates that
the relevant time for the “common use” inquiry is when the
20 No. 22-1557
Second Amendment was adopted, not when the current law-
suit arose. Otherwise the weapons that qualify as being in
“common use” would vary over time in capricious ways.
Think about the modern pistols that have been available since
the 1980s. Presumably someone who wanted to own and
carry such a pistol during the first year it was on the market
would have had a hard time showing “common use”—it was
a new product, after all. But in time it became very popular.
The early purchasers of such a pistol do not have to wait for
that popularity before they can rely on Second Amendment
protections; rather, they would have analogized it to the
smaller, pistol-style weapons in common use in 1791. What
Heller and Bruen demand is not a headcount of how many
people today own a certain firearm or how many are sold. In-
stead, those decisions ask which historical analogue the mod-
ern weapon most strongly resembles. If the analogue is one
that people were entitled to use, then that part of Second
Amendment analysis is satisfied; if instead the item is more
like the “dangerous and unusual weapons” of yore, then it is
not one of the “arms” protected by the Amendment.
A
Let’s turn, then, to those “longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws impos-
ing conditions and qualifications on the commercial sale of
arms,” Heller, 554 U.S. at 626–27, to see if they hold the key to
the resolution of Atkinson’s case. The first point to make is
that nothing in that list may be justified by the means/end test
that Bruen disapproved. But these were “longstanding prohi-
bitions” and thus fall squarely within the historical test to
No. 22-1557 21
which courts must now confine themselves. I accept for pre-
sent purposes that this passage from Heller alone is not
enough to resolve Atkinson’s case, since (as we noted in
Skoien) the Supreme Court may have been merely observing
that the Heller case did not require it to evaluate those re-
strictions. It was able to save them for another day, and in this
case, we have reached that day.
The “who” question presented by our case—who may be
subject to restrictions on their Second Amendment rights—is
now governed by Bruen’s framework. Bruen does not slam the
door on all gun regulation; it acknowledges that a given reg-
ulation or restriction may be defended if it is “consistent with
this Nation’s historical tradition of firearm regulation.” 142 S.
Ct. at 2126. This approach poses enormous challenges to the
district and circuit courts of this country, not to mention the
myriad state courts that must also deal with the Second
Amendment in light of McDonald v. City of Chicago. See 561
U.S. 742, 750 (2010) (holding that the Second Amendment ap-
plies to the states, through incorporation under the Four-
teenth Amendment). Every unit of government, from the
smallest village or municipality, through counties and par-
ishes, states, federal enclaves, and the federal government it-
self, has had something to say about guns. Many of them have
laws going back to the origins of this country. What are we to
make of all this?
History does not write itself. Historiographers would cau-
tion us that the choice of sources, facts, organizational princi-
ples, and theories, all contribute to the final narrative. See, e.g.,
“Historiography,” Merriam-Webster, https://www.merriam-
webster.com/dictionary/historiography (defining historiog-
raphy as “the writing of history, especially: the writing of
22 No. 22-1557
history based on the critical examination of sources, the selec-
tion of particulars from the authentic materials, and the syn-
thesis of particulars into a narrative that will stand the test of
critical methods”). Only a professional historian would know
how to evaluate often-conflicting claims about the social, cul-
tural, and legal landscape of an earlier period, and that person
likely would not jump to any conclusions without devoting
significant time to an evaluation of original sources.
In Bruen, the Court optimistically said at a few points that
all that was needed was a search for analogues—something
that common-law judges do every day. But a closer look at the
opinion shows that it did not have something quite that sim-
ple in mind. Some historical examples proffered by the parties
met with its approval; others were dismissed as not being suf-
ficiently widespread, or sufficiently analogous to the modern
situation, to be useful. We are left with something not much
better than the Goldilocks solution: history can’t be viewed
too specifically, and it can’t be viewed too generally. It must
be, like the bed, the chair, or the porridge, “just right.” See
Jake Charles, Bruen, Analogies, and the Quest for Goldilocks His-
tory, Duke Center for Firearms Law Blog (June 28, 2022). And
that “perfect” length, or height, or temperature will remain in
the eye of the beholder, or perhaps the final court to consider
the matter.
Lest I be accused of exaggerating, let me give a few exam-
ples of the fine lines courts are now being asked to draw. First,
Bruen tells us that the historical analogue must be neither too
old nor too recent. It adds that the most persuasive analogous
regulations are those enacted or in place at the time the Sec-
ond Amendment was ratified (1791) or those that date from
the adoption of the Fourteenth Amendment (1868)
No. 22-1557 23
(presumably if the regulation at issue comes from a state en-
tity rather than the federal government). As Justice Thomas
reminded us, “[c]onstitutional rights are enshrined with the
scope they were understood to have when the people adopted
them.” Bruen, 142 S. Ct. at 2126 (quoting Heller, 554 U.S. at 634–
35). Next, the historical analogues must be abundant, though
they need not appear in every jurisdiction. Being able to point
to three colonial regulations is not enough to demonstrate a
regulatory “tradition,” id. at 2142–43, even if the three colo-
nies in question represented nearly a quarter of the original
13 and accounted for almost half the country’s population.
Furthermore, the regulations must have been “actually” en-
forced by the authorities, though we do not know what ratio
between incidence of the regulated action and prosecutions is
enough to make enforcement “actual.” And laws that were
“short lived” “deserve little weight.” Id. at 2155.
Having said all that, the Court gave back with the left
hand a little of what it had taken away with the right: it
stressed that “analogical reasoning under the Second Amend-
ment is neither a regulatory straitjacket nor a regulatory blank
check.” Id. at 2133. It assured readers that courts do not need
to track down a “historical twin” that corresponds to a mod-
ern regulation in order for a restriction on firearm possession
to pass constitutional muster. We must ask instead “how and
why the regulations burden a law-abiding citizen’s right to
armed self-defense” and decide whether that “how” and
“why” are relevantly similar to the historical antecedents. Id.
(Note once again that the assumption is that the citizen is
“law-abiding.” The Court said nothing about what makes
someone law-abiding or not.) A lower court judge could be
forgiven for thinking that there is a great deal of play in these
joints.
24 No. 22-1557
B
Taking Bruen at its word, as we all must in our hierarchical
judicial system, what I see in the nation’s history is a nuanced
approach toward gun possession, ownership, and use. The
Second Amendment’s history and tradition are steeped in a
rich regulatory background. For what it is worth, I would say
exactly the same thing about the First Amendment, which the
Court has often equated to the Second Amendment. Although
Justice Hugo Black was famous for taking a strict view of the
First Amendment, insisting that the words “NO LAW” with
which it begins meant literally “NO LAW,” the truth is that
the First Amendment has always been circumscribed by lim-
iting principles. The Supreme Court understands that a per-
son cannot shout “FIRE” in a crowded theater, see Schenck v.
United States, 249 U.S. 47 (1919); that “fighting words” are not
protected, see Chaplinsky v. New Hampshire, 315 U.S. 568(1942); that a person who credibly issues a verbal threat to kill
the President may be prosecuted, see Rankin v. McPherson, 483
U.S. 378 (1987); that obscenity and child pornography do not
qualify as protected speech, see Miller v. California, 413 U.S. 15(1973) (obscenity), New York v. Ferber, 458 U.S. 747 (1982)
(child pornography); and that the First Amendment did not
totally displace common-law libel and slander, see New York
Times Co. v. Sullivan, 376 U.S. 254 (1964). The Second Amend-
ment is the same: while it robustly protects the right of law-
abiding citizens to keep and bear arms for self-defense, sport,
and other lawful uses, it does not categorically displace all
other laws—not laws regulating the terms and conditions that
govern lawful firearm ownership, including the types of
weapons that may be possessed, and not laws governing the
situations under which those pre-existing rights may be for-
feited.
No. 22-1557 25
C
History and tradition bear this out. Gun ownership and
use in this country (both before and after the adoption of the
1787 Constitution) have always been subject to reasonable
regulations. Joseph Blocher & Darrell A.H. Miller, The Positive
Second Amendment: Rights, Regulation, and the Future of Heller
4 (2018) (“[T]he [Second Amendment] protects some private
purposes, and … it is and has always been subject to regula-
tion.”). Moreover, while I recognize that we must not allow
the prefatory clause of the Second Amendment—the one that
highlights the role of a well-regulated militia—to assume un-
due importance, it is equally true that we are not at liberty to
delete words from the Constitution. History demands that we
give each part appropriate weight.
Long before the United States of America was a gleam in
anyone’s eye, there was a close relation in England between,
on the one side, the right of citizens to have arms and, on the
other side, their responsibility to answer the King’s call for
armed forces when the need arose. Indeed, as Joyce Lee Mal-
colm writes, originally the “bearing” of arms was a duty owed
to higher political authorities, not an individual right against
those authorities. See Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 1 (1994). The in-
tertwining of right and duty had an effect on the types of arms
people were allowed to keep. Arms that, in times of need,
could be used in the militia, could also be retained at home
for self-defense and for hunting (though not poaching—the
latter would result in the deprivation of the right to keep the
weapon). And it was from those seeds that the individual
right recognized in Heller originally grew. But note how
closely related to militia service the scope of the right is. As
26 No. 22-1557
one commentator noted, there is no way to disentangle the
private right to bear arms from the history of the King’s right
to call upon a civilian militia to protect the state. Saul Cornell,
A Well Regulated Right: The Early American Origins of Gun Con-
trol, 73 Fordham L. Rev. 487, 503 (2004).
As far back as the Middle Ages, Englishmen were required
to participate in local peacemaking. Malcolm, To Keep and Bear
Arms at 1 (who describes this duty as existing since “time out
of mind”). As Malcolm notes, “[t]he requirement to raise a
‘hue and cry’ dates from at least the thirteenth century. A writ
of 1252 explained that upon the raising of the cry neighbours
[sic] were to turn out with weapons they were bound to keep.”
Id. at 181 n.4. This operated as an obligation or a duty, not as
a right to own weaponry. It was also seen as a tax of sorts,
because subjects were required to use their own funds to pur-
chase and maintain their weapons. The feudal lord monitored
their compliance, and it was the lord (later the governing po-
litical authority) who had the right to call upon the militia to
its defense. This right included the power to govern private
arms—who had to keep weapons, what those persons had to
keep, and how the weapons were stored.
By the time the colonies were organizing themselves into
the United States of America, the status of the right had also
evolved in England. In particular, as the Supreme Court
pointed out in Bruen, England experienced its Glorious Revo-
lution in 1688, in the wake of James II’s tumultuous reign. The
next year, with William III and Mary II securely on the throne,
Parliament passed the Declaration of Rights, which enshrined
basic civil liberties and royal succession, as well as parliamen-
tary privilege. See Eng. Bill of Rights 1 Will. & Mar. Sess. 2,
c. 2 (1689). Like the Magna Carta, the Declaration is one of the
No. 22-1557 27
central documents that makes up Britain’s unwritten consti-
tution. One of the “ancient rights and liberties” it mentions is
the following: “Protestants may have arms for their defence
suitable to their conditions and as allowed by law.” Id. at Sess. 2,
c. 2, cl. 7 (emphasis added). Not quite a ringing endorsement
of an untrammeled right to keep and bear arms, it instead
builds in the idea that this right exists “as allowed by law.”
The purpose of this clause, according to historians, was to
leave no doubt that it was Parliament that had regulatory
power over firearms, not the Crown. See Carl T. Bogus, The
Hidden History of the Second Amendment, 31 U.C. Davis L. Rev.
309, 379–82, 384 (1998). Parliament asserted this regulatory
power in response to the turmoil surrounding James II’s ef-
forts to disarm Protestants. The fear of James’s Catholicism
was a major factor behind Parliament’s decision to turn the
throne over to William of Orange and Mary, James II’s
Protestant daughter, thereby ending the Stuart dynasty and
ushering in the Hanovers. But it bears repeating: the concern
was about who would regulate firearms—not whether they
could be regulated.
There is much more one could say about these historical
practices, but for present purposes it is enough to note that,
by the time of William and Mary, Parliament claimed the right
to control weapons designed for the militia but held in private
hands. It is also worth noting that the standing British Army
was founded in the mid-17th century, around the same time.
When the time came to draft our own Bill of Rights, the
militia tradition, as well as the role of standing armies, was a
central concern for the American colonists. James Madison, in
Federalist 46, wrote that any federal army could be checked
by the (populist) militia. This was a point that reassured those
28 No. 22-1557
who feared the power of the federal government to compro-
mise the sovereignty of the states. It is notable that the Decla-
ration of Independence includes, among the list of grievances
against King George III, that “He has kept among us, in times
of peace, Standing Armies without the Consent of our legisla-
tures.”
These concerns persisted even as the need for a standing
army became clear. During the Revolutionary War, George
Washington was continually begging the Second Continental
Congress to professionalize the army. He did so because the
colonial militias were less reliable; they had short periods of
enlistment and members were free to return home when they
chose. But Congress repeatedly resisted his importuning. Fur-
thermore, the delegates at the Constitutional Convention had
just lived through Shays’s Rebellion, an uprising of farmers
protesting debt-collection courts in Massachusetts. The
leader, Daniel Shays, led a group of 4,000 rebels that wanted
to seize the state armory; the confederal government was un-
able to muster a response and so the protestors were stopped
by the Massachusetts State militia and a privately funded lo-
cal militia. This incident was quite salient for the drafters of
the Bill of Rights, who feared future rebellions: people were
looking for assurance that the new Constitution would pro-
vide a framework for an effective national defense. See Paul
Finkelman, A Well Regulated Militia: The Second Amendment in
Historical Perspective, 76 Chi.-Kent L. Rev. 195, 196 (2000).
These competing goals, of national security and the preserva-
tion of state sovereignty, set the stage for the ratification de-
bates. And in borrowing from the English Declaration of
Rights when crafting the Second Amendment, the primary
dispute among the Founders was over which political unit
No. 22-1557 29
would regulate the civilian militias, not whether regulation
was entirely off the table.
For example, the Anti-Federalists expressed fears about
the power of the new federal government. The Pennsylvania
Anti-Federalists proposed several constitutional amendments
to check federal power and the threat of the standing federal
army. Some of those amendments were designed to address
private weapons ownership, but many were focused on the
proper allocation of power. The topics included: (1) the right
of self-protection through the ownership of weapons; (2) the
right to serve in the militia; (3) the right to hunt and fish; (4)
the prevention of a standing army; (5) the power of Congress
over the states; and (6) the power of the states to control their
own armies or militias. Finkelman, A Well Regulated Militia, at
208–09. Although private rights were surely implicated in
these proposals, so too was state sovereignty and the power
of the state to control the militia. Anti-Federalists feared that
the militia “would be under control of the president and the
Senate” (rather than the states), and that the national govern-
ment might even destroy the militia. Id. at 224.
Other militia-related concerns that were reflected in the
Second Amendment were, from a modern perspective, more
shameful. Southern states feared that federal control of armed
force might compromise their ability to deal with rebelling
slaves. See Bogus, The Hidden History of the Second Amendment,
at 332–34. Those same states relied on (and wanted to con-
tinue relying on) their militias to control the growing popula-
tion of enslaved Black people. One author observed that many
Southern militias “were transformed into slave patrols.”
Blocher & Miller, The Positive Second Amendment at 36 (quoting
Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms
30 No. 22-1557
in America 133 (2009)). They accordingly wanted to ensure
their ability to police their enslaved populations by retaining
control of their militias.
The pre-constitutional understanding reflected in the Sec-
ond Amendment thus had two key elements: the history of
the institution of a civilian militia in the Anglo-American tra-
dition; and the individual right to own, carry, and use “arms.”
The public meaning of the Amendment thus includes ele-
ments of both sources. The individual right existed, to be sure,
but it was subject to regulation, as the Constitution itself ex-
pressly notes. The federal government was given the power
to “call[] forth the Militia to execute the Laws of the Union,
suppress Insurrections, and repel Invasions,” see U.S. Const.
art. I, § 8, while the states retained their police power over
state militias and were empowered to prevent federal dis-
armament of individual citizens. This structure makes gun
laws all but inevitable, and indeed, at the time the Constitu-
tion was written (1787) and the Second Amendment was rati-
fied (1791), laws regulating gun possession and use were
ubiquitous in the new country.
D
Out of this tradition, one can find a vast and diverse array
of gun laws stretching from the colonial period, through the
Founding Era, through Reconstruction (when the Fourteenth
Amendment was added to the Constitution and ultimately
made the Second Amendment applicable to state regulation),
up to the present day. This is what makes up the text, history,
and tradition to which Bruen directs us. And text, history, and
tradition all point in the same direction: firearms have always
been regulated in precisely the ways that concern us in the
third decade of the 21st century. That includes what types of
No. 22-1557 31
weapons may be owned privately; what formalities may or
must accompany the purchase of weapons; and which groups
of people are categorically restricted from firearm ownership
and use, on account of such disqualifying factors as mental
health, criminal record, loyalty, and character. Naturally, reg-
ulation on any of these grounds cannot be a pretext for
measures that would impair the rights of law-abiding, men-
tally stable, mature members of the polity. But that does not
mean that every restriction must be assessed on a person-by-
person basis, any more than the First Amendment demands
that the right to have and produce child pornography must
be assessed on an individual basis. Nor does it mean that cat-
egorical restrictions are not subject to independent constitu-
tional provisions. The days are long gone when the legislature
can prohibit Catholics from having guns (as Parliament did
during the Stuart era), and it would be equally reprehensible
to ban gun ownership based on race, sexual orientation, disa-
bility, or other protected characteristics.
A closer look at the types of regulation that were pervasive
in the states in the late 18th century supports this conclusion.
Around the time of the American Revolution through the
drafting and adoption of the Constitution and the Bill of
Rights, gun regulations covered three principal topics: (1)
storage, (2) militias, and (3) loyalty. There was robust regula-
tion surrounding the storage and transport of gunpowder.
These laws were “enacted to protect the growing population
centers, such as Boston, Philadelphia, and New York City.”
Cornell, A Well Regulated Right, at 511–12. The laws included
limits on the amount of gunpowder a person could possess,
rules about where powder could lawfully be stored, and laws
for safe transport. Id. These laws also relied on state police
32 No. 22-1557
powers to require forfeiture of firearms that were improperly
stored. Id. at 512.
The militia laws in the 18th century were both extensive
and comprehensive. They dictated who was expected to serve
in the militia, as well as the obligations that accompanied that
service. Id. at 509. (And always recall that the militia was seen
as the alternative to the dreaded standing army—it was an al-
ternative much closer to the people and much less likely to
support an out-of-control Executive.) Those subject to militia
service had to turn out for regular musters, had to possess the
required equipment, and were subject to regular arms inspec-
tions. Id. at 509–10.
Finally, loyalty oaths did not die with the 1689 English
Declaration of Rights or with the passage of the colonists to
the New World. During the American Revolution, several
states passed laws providing for the confiscation of weapons
owned by persons who refused to swear an oath of allegiance
to the state or to the United States. Id. at 506. 1 The practice of
disarming those whose loyalty was questionable continued
after the Revolution. Those who refused to swear to a loyalty
oath were forced to deliver their weapons to the state. Id. at
507–08.
Looked at another way, these laws touched on six distinct
areas of regulation. 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 (2009). Each of
1 See, e.g., 1778 Pa. Laws 123, ch. LXI, § 5 (requiring those who refused
to take an oath to forfeit their arms and ammunition); Act of May 5, 1777,
ch. 3, 9 Hening’s Statutes at Large 281, 281–82 (Virginia law disarming
those who refused to give “assurance of Allegiance”).
No. 22-1557 33
these types has existed throughout American history—nota-
bly, at the time of the Founding and in the mid-19th century,
the critical times identified in Bruen:
a) The “what”: restrictions on the kinds of weapons
that could be privately possessed. Id. at 1475.
b) The “who”: restrictions on who was allowed to own
weapons. Id. at 1493.
c) The “where”: restrictions on the places in which
weapons could be carried. Id. at 1515.
d) The “how”: restrictions on places weapons could be
stored. Id. at 1534.
e) The “when”: restrictions on the times during which
weapons could be carried. Id. at 1535.
f) Miscellaneous: regulations focused on licensing,
permitting, and sales. Id. at 1542, 1545.
III
This overview has barely scratched the surface of the out-
pouring of scholarship on the origins and meaning of the Sec-
ond Amendment, but it is enough to permit me to move on to
the task Bruen has given us: to demonstrate that the statute
under consideration, 18 U.S.C. § 922(g)(1), is “consistent with
this Nation’s historical tradition of firearm regulation.” 142 S.
Ct. at 2126. This, as I noted earlier, can only be a question of
law, just like any determination of the meaning of a constitu-
tional provision or a statute, and just like the determination
of the meaning of a foreign law, see Fed. R. Civ. P. 44.1.
The assessment of any gun regulation should begin with a
look at the type of measure under consideration: to use Pro-
fessor Volokh’s taxonomy, is it a “what, who, where, how, or
34 No. 22-1557
when” regulation? Once we know that, we can begin the task
of identifying the proper historical analogues. For example,
felon disarmament is a “who” restriction. That directs us to
historical restrictions on the classes of persons who were al-
lowed to own or possess guns. In addition, one needs to look
at the regulatory method the statute embodies: total disarma-
ment for life; disarmament for a term of years; qualified rights
to have the weapon with proper sureties; restrictions on par-
ticularly sensitive places (courthouses, churches, schools) or
times or manner (open-carry, concealed-carry). Throughout
all of this, one must also bear in mind that Bruen does not de-
mand historical “dead ringers.” It is enough to identify a
problem with private gun ownership and find the relevantly
similar type of solution that was thought to be adequate by
our forebears.
Bruen also asks courts to focus on “how and why the reg-
ulation burdens a law-abiding citizen’s right to armed self-
defense.” 142 S. Ct. at 2133. If a certain burden was under-
stood to be acceptable in the period immediately preceding
independence, going up to 1791 when the Bill of Rights was
adopted, then we are safe in concluding that the pre-existing
right enshrined in the Second Amendment incorporates that
qualification.
Applying that approach, one sees that the courts have long
recognized that “[t]he preservation of the public peace, and
the protection of the people against violence, are constitu-
tional duties of the legislature, and the guarantee of the right
to keep and bear arms is to be understood and construed in
connection and in harmony with these constitutional duties.”
Hill v. State, 53 Ga. 472, 377 (1874); see also Joseph Blocher &
Reva B. Siegel, Guided by History: Protecting the Public Sphere
No. 22-1557 35
from Weapons Threats under Bruen, 98 N.Y.U. L. Rev. __ (forth-
coming 2023) at 8.
With the open-mindedness that the historical approach in-
herently reflects, we have not only the right, but the obliga-
tion, to look carefully at the record behind the felon disenti-
tlement statutes. That record reveals that, since the founding,
governments have been understood to have the power to sin-
gle out categories of persons who will face total disarmament
based on the danger they pose to the political community if
armed. That presumptive power is on display in the loyalty
oath laws previously discussed, and in the laws that disarmed
persons found guilty of treason and members of native
tribes. 2 Though some of those laws would no longer pass
muster under the Equal Protection Clause, they reveal conclu-
sively the scope of governmental power that was understood
to exist at the time the Second Amendment was adopted. This
power allowed the creation of categorical restrictions without
any case-by-case escape hatch. Section 922(g)(1) does pre-
cisely what statutes have been doing since the mid-18th
2 For the laws regarding the disarmament of native people, see, e.g.,
1723 Conn. Acts 292 (preventing the sale of firearms to Indians); 1757–68
Md. Acts 53, ch. 4, § 3 (same); 1763 Pa. Laws 319, § 1 (same); Laws of the
Colony of Massachusetts 492 (1769) (same); Statutes of the Mississippi Ter-
ritory, Indian Intercourse, § 9 (1807) (same); 1844 Mo. Laws 577, ch. 80, § 4
(same); 1853 Or. Laws 257, § 1 (same); Statute Law of the State of Florida,
For the Prevention of Indians Roaming at Large Throughout the State, § 1
(1847) (authorizing the seizure of arms from Indians found beyond reser-
vation borders). For other laws disarming an entire category of persons,
see, e.g., 1776 Pa. Laws 11, § 1 (disarming all non-associators, the American
colonists who refused to sign militia association charters); 1787 Mass. Acts
555, ch. IV (disarming all persons found guilty of treason or aiding rebel-
lion, even after pardon by the governor and an oath of allegiance).
36 No. 22-1557
century. It identifies the group of persons deemed dangerous
to the political community—those convicted of the defined
felonies—and it makes it unlawful for them to possess a fire-
arm. 3 To the extent people in that group want to contest the
suitability of the dangerousness label to their situation, that is
once again an equal protection argument and not an argu-
ment about the scope of government authority under the Sec-
ond Amendment.
Though I am satisfied with these historical analogues, I
understand that there remain several open questions about
how to evaluate today’s gun laws. The Supreme Court’s anal-
ysis in Bruen could not have been intended to be the last word
on historical analysis relevant to the Second Amendment. In-
stead, it set the methodological stage. There have been schol-
arly criticisms of its assumption that three colonial-era regu-
lations do not suffice to establish a historical tradition and its
decision not to give any weight to the territorial laws. These
critiques may be well taken, but it is not my purpose today to
confront them. They can be useful to a lower-court judge in-
sofar as they highlight what evidence is needed and why the
Bruen majority found the record in that case insufficient to
save the New York law in question. If three colonies out of 13
isn’t enough, then what about four? Would the case have been
different if population had been emphasized instead of polit-
ical units? Given that territories were subjected to the
3 Relief from that disability is possible through executive clemency. In
addition, there is a mechanism that Congress has never chosen to activate
that would permit the Attorney General to restore a person’s gun rights.
See 18 U.S.C. § 925(c). While we certainly would have a different case be-
fore us if section 925(c) were available, my argument does not depend on
its existence.
No. 22-1557 37
Constitution and the Bill of Rights even before the Fourteenth
Amendment, what do the territorial laws tell us about legis-
lating under the dictate of those documents? See Andrew
Willinger, The Territories Under Text, History, and Tradition, 101
Wash. U. L. Rev. __ (forthcoming 2023) at 27. Taking the Court
at its word, new historical research should be welcome—just
as it was when Justice Brandeis wrote Erie R.R. Co. v. Tomp-
kins, 304 U.S. 64 (1938) and highlighted what was then new
research on the Rules of Decision Act.
As other courts have begun to apply Bruen, this need for
further research and further guidance has become clear. The
Third, Fifth, Eighth, and Eleventh Circuits have all published
precedential opinions discussing whether a challenged gun
law is consistent with Bruen’s history and tradition test. See
Range v. U.S. Attorney General, -- F.4th -- (3d Cir. 2023) (en banc)
(in an as-applied challenge, enjoining enforcement of section
922(g)(1) against someone who was convicted of a single, non-
violent offense of making false statements on a food stamp
application); United States v. Rahimi, 61 F.4th 443 (5th Cir.
2023) (holding section 922(g)(8)—which makes it unlawful to
possess a firearm if under a court order related to domestic
violence—unconstitutional); United States v. Jackson, -- F.4th -
- (8th Cir. 2023) (upholding section 922(g)(1) as applied to
people with prior drug felony convictions); United States v.
Sitladeen, 64 F.4th 978 (8th Cir. 2023) (upholding section
922(g)(5)(A) which makes it unlawful for those who are ille-
gally in the United States to possess a firearm); Nat’l Rifle Ass’n
v. Bondi, 61 F.4th 1317 (11th Cir. 2023) (upholding a Florida
law that requires the purchaser of a gun to be 21 years old).
These cases and their varying outcomes illustrate the chal-
lenges created by Bruen—the Supreme Court threw down a
38 No. 22-1557
gauntlet, and it is our job to take it up. For example, consider-
ing only the question raised by section 922(g)(1), four courts
have come out four different ways on its constitutionality. In
Atkinson’s case, the majority is directing the district court to
develop the historical record, without any notion of how
much is enough. The Eighth Circuit conducted the evaluation
in much the manner I suggest, noting the presumptive power
to disarm categories of persons deemed dangerous, as illus-
trated in laws that disarmed Native Americans, religious mi-
norities, and those who refused to take a loyalty oath. See Jack-
son, -- F.4th at *5. This led the Jackson court to conclude “his-
tory demonstrates that there is no requirement for an individ-
ualized determination of dangerousness as to each person in
a class of prohibited persons.” Id. at *6. The Third Circuit
panel that originally heard Range agreed that section 922(g)(1)
was constitutional but came to that determination because
people “whose criminal records evince disrespect for the law
are outside the community of law-abiding citizens entitled to
keep and bear arms” and therefore the regulated conduct was
not covered by the Second Amendment’s plain text. See 53
F.4th 262, 273 (3d. Cir. 2022), vacated for rehearing, 56 F.4th 992(3d. Cir. 2023). Then on rehearing, a divided en banc Third Cir-
cuit reversed course and decided that the history and tradi-
tion of the Second Amendment did not support the disarming
of a nonviolent felon.
There is much more that one could say about these other
circuit court opinions (not to mention countless thoughtful
district-court opinions from courts around the country) and
how they approached the analysis required by Bruen. Four
outcomes in four cases demonstrates just how inconclusive
this project will prove to be. The information available to us
(inevitably filtered through the lens of each individual
No. 22-1557 39
historian) does not reveal a definitive and original public
meaning of the Second Amendment. All we can do is to con-
sult the public record, discern the generally applicable princi-
ples, and avoid unnecessary reliance on statutory minutiae.
My own effort to do so convinces me that the pre-constitu-
tional understanding of the right to keep and bear arms me-
morialized in the Second Amendment came with an under-
standing that the right existed only as to those arms “suitable
to their conditions and as allowed by law.” Eng. Bill of Rights,
supra.
Further to that point, modern society has the same need as
17th-century England and 18th-century America to restrict
the right to keep and bear arms when a person ceases to be
one of the law-abiding citizens entitled to have weapons for
self-defense, hunting, and other lawful uses. For example,
looking at 18 U.S.C. § 922(g)(8), which bars gun possession for
a person subject to a court-imposed domestic-violence re-
straining order, we can easily see that Congress rationally
concluded that such a person is not part of the law-abiding
community of citizens. Reports indicate that 85 percent of in-
timate partner violence victims are women and that this type
of violence results in nearly 1,300 deaths a year. See Emory
University School of Medicine Nia Project, Domestic Vio-
lence/Intimate Partner Violence Facts, https://psychia-
try.emory.edu/niaproject/resources/dv-facts.html. The Na-
tional Coalition against Domestic Violence estimates that in
2018, 1,014 women were killed by male intimate partners. Na-
tional Coalition Against Domestic Violence, Domestic Vio-
lence & Firearms 1 (2022) https://assets.speakcdn.com/as-
sets/2497/guns_and_dv_2022.pdf. The Second Amendment
leaves room for legislatures to take these facts into account,
not as a matter of means/end scrutiny but as a matter of
40 No. 22-1557
solving modern problems of lawlessness, with the same stat-
utory tools—including categorical disarmament—that gov-
ernments in this country used in the 18th and 19th centuries.
IV
As this brief discussion has shown, the right to keep and
bear arms always has been subject to careful limitations.
These limitations are at their zenith when applied to people
who are the antithesis of the law-abiding citizen who wants
to exercise his or her right to self-defense, whether at home or
in public, and who may also enjoy the various sports and
other activities that involve guns. Even under the English
Declaration of Rights, no one thought anything of disarming
people who were not loyal to the Crown, or who had commit-
ted serious crimes (called felonies), or who had abused their
gun rights (often by poaching on lands to which they had no
right). This history and tradition follows an unbroken line
from long before the Constitution was written, through the
17th and 18th centuries up to the present day.
If anything is clear, it is that the legislature (first Parlia-
ment, and later Congress and the state bodies) was empow-
ered to regulate guns through categorical restrictions. Some-
times they exercised that power; sometimes (as with the
surety laws) they chose to operate on an individualized basis.
The choice between one mechanism or the other is a classic
legislative option. Courts should not, in the name of the Sec-
ond Amendment, be making that choice themselves.
If today’s panel were to undertake the thorough historical
analysis that Bruen demands, I would be happy to delve even
more deeply into these materials. But I am fully satisfied,
based on what I have addressed here and on the Supreme
No. 22-1557 41
Court’s own use of history in Bruen, that 18 U.S.C. § 922(g)(1)
is constitutional as written. I therefore would not remand this
case to the district court. I would instead affirm its judgment
and uphold the statute.