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 restrictions on the possession of firearms. No longer, the Supreme 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 resolve the constitutionality of the challenged restriction. The 

new approach anchors itself exclusively in the Second 

Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to 

keep and bear arms.” Id. at 2127. 

The Supreme Court decided Bruen after the district court 

faithfully applied our precedent and rejected Patrick Atkinson’s Second Amendment challenge to § 922(g)(1). The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the 

district court to undertake the Bruen analysis in the first instance.

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 personal 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 “Blackstone through the 19th-century cases,” the Court acknowledged that some firearms restrictions could pass constitutional 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 history 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 deference that the Constitution demands here [under the Second 

Amendment]”). Accordingly, when the Second Amendment’s “plain text” covers the regulated conduct, the government 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 cautioned 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, 14thcentury 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 judgment)).

Bruen directs us to canvass these historical periods for similar regulations. When “a challenged regulation addresses a 

general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence 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 jurisdictions 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 regulations impose a comparable burden on the right of armed selfdefense 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 (concluding that the state neither “demonstrate[d] a tradition of 

broadly prohibiting the public carry of commonly used firearms for self-defense” nor identified “any such historical tradition 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 enforced often or effectively enough to establish a historical tradition 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 criminal 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 applied 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 at 

445–47. Because our precedent moved straight to the meansend 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 government 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 government invites. Yes, the Court seemed to find no constitutional 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 undertake the text-and-history inquiry the Court so plainly announced 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 demanding standard set forth in Bruen. In addition to some Foundingera commentary, the government mentions that felons like Atkinson were historically subject to execution and estate forfeiture, 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 announcing the text-and-history standard—it rolled up its 

sleeves and examined a wealth of laws and commentary spanning several centuries, paying close attention to the enforcement and impact of various regulations. The government 

points us to only a couple of isolated historical facts and incidents, 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 concluding that unauthorized aliens are not part of “the people” 

protected by the Second Amendment). Bruen left this complicated issue unresolved. Although we analyzed the scope of 

the Second Amendment right before Bruen, we have not returned to the issue since then. See United States v. Meza-Rodriguez, 798 F.3d 664, 669–72 (7th Cir. 2015) (defining “the people” 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 argues that § 922(g)(1) is facially unconstitutional because history supports disarming only “dangerous” persons with convictions 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, Atkinson 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 individualized assessments or for delineating between individuals 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 adversarial 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 positions before the district court in accordance with the principles of party presentation. Our review, which all agree is inevitable, 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 century?” 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’ constitutional ratifying conventions, any actual practices of disarming felons or criminals more generally 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 regulations and practices are comparable in substance to the restriction imposed by § 922(g)(1). 

To answer the question, the district court and 

the parties should consider how the breadth, severity, and the underlying rationale of the historical 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 felons? The parties should not stop at compiling 

lists of historical firearms regulations and practices. The proper inquiry, as we have explained, 

should focus on how the substance of the historical 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 scrutiny of these laws, to the extent possible.

5. If history supports Atkinson’s call for individualized assessments or for a distinction between 

violent and non-violent felonies, how do we define a non-violent or a non-dangerous felony? 

And what evidence can a court consider in assessing whether a particular felony conviction 

was violent? For instance, can a court consider 

the felony conviction itself, the facts of the underlying 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 colleague’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) (concluding that § 922(g)(1) is unconstitutional as applied to an appellant convicted of a welfare fraud offense); United States v. Jackson, No. 22-2870, 2023 WL 3769242 (8th Cir. June 2, 2023) (rejecting an as-applied challenge).

Although the government must conduct a more substantial historical analysis on remand, it may also develop its contention 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 answering them. As our dissenting colleague likewise emphasizes, the historical analysis required by Bruen will be difficult 

and no doubt yield some measure of indeterminacy. The parties may be unable altogether to find answers to certain questions, may find incomplete information in response to others, 

and perhaps in some instances may identify substantial historical 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 firearms 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 Congress 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 permissible from the impermissible? 

My colleagues have taken the position that we need further input from the district court before we can tackle the present 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 convicted of a crime for which the punishment exceeds one year 

in prison (usually felonies) from possessing a firearm or ammunition. This is a pure question of law, and our consideration is therefore de novo. If we think that we would benefit 

from further exploration of the issue, in light of the intervening 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 authority 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 question independently when the case inevitably returns to us. 

My own assessment of the materials that now govern Second 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 historical 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.” Several 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-defense or sport. Contrary to the textualist position, it is also 

plain that this is not an amendment whose meaning was frozen in time upon its addition to the Constitution. In District of 

Columbia v. Heller, 554 U.S. 570 (2008), the Court made the latter point clear when it said that “the Second Amendment extends, prima facie, to all instruments that constitute bearable 

arms, even those that were not in existence at the time of the founding.” 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 military. 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 dissent 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 offenses 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 punishable 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 restored 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 regard this as a trivial offense, not worthy of permanent loss of 

Second Amendment rights. He also suggests that his own participation 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 section 922(g)(1) is out of bounds, in my view. The Judiciary cannot 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 nation’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, financially speaking, and who is trying to find money for her family? 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 conviction ought to support restrictions on gun rights. Such a system would impose impossible burdens on courts and prosecutors and would lead to an arbitrary patchwork of decisions—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 recognizes 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) (upholding 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 comprehensive code. 

II

So what has the Supreme Court told us about general limitations on the right to bear arms? I would begin with its wellknown 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 prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis 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 carrying 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 historical 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 lawsuit 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. Instead, those decisions ask which historical analogue the modern 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 imposing 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 prohibitions” and thus fall squarely within the historical test to 
No. 22-1557 21

which courts must now confine themselves. I accept for present 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 restrictions. 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 regulation 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 applies to the states, through incorporation under the Fourteenth Amendment). Every unit of government, from the 

smallest village or municipality, through counties and parishes, states, federal enclaves, and the federal government itself, 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 caution us that the choice of sources, facts, organizational principles, and theories, all contribute to the final narrative. See, e.g., 

“Historiography,” Merriam-Webster, https://www.merriamwebster.com/dictionary/historiography (defining historiography as “the writing of history, especially: the writing of 
22 No. 22-1557

history based on the critical examination of sources, the selection of particulars from the authentic materials, and the synthesis 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, cultural, 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 simple in mind. Some historical examples proffered by the parties 

met with its approval; others were dismissed as not being sufficiently 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 History, 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 examples 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 Second 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 entity 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 colonies 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” enforced 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 Amendment 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 modern 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 limiting principles. The Supreme Court understands that a person 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 Amendment is the same: while it robustly protects the right of lawabiding 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 forfeited. 
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 regulation.”). 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 undue 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 Malcolm 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 intertwining 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 Control, 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 purchase and maintain their weapons. The feudal lord monitored 

their compliance, and it was the lord (later the governing political 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 Revolution 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 parliamentary 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 constitution. 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 efforts 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 compromise the sovereignty of the states. It is notable that the Declaration 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 legislatures.” 

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. Furthermore, 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 unable to muster a response and so the protestors were stopped 

by the Massachusetts State militia and a privately funded local 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 provide 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 preservation of state sovereignty, set the stage for the ratification debates. 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 government 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 continue relying on) their militias to control the growing population 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 Second Amendment thus had two key elements: the history of 

the institution of a civilian militia in the Anglo-American tradition; and the individual right to own, carry, and use “arms.” 

The public meaning of the Amendment thus includes elements of both sources. The individual right existed, to be sure, 

but it was subject to regulation, as the Constitution itself expressly 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 disarmament of individual citizens. This structure makes gun 

laws all but inevitable, and indeed, at the time the Constitution was written (1787) and the Second Amendment was ratified (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, regulation on any of these grounds cannot be a pretext for 

measures that would impair the rights of law-abiding, mentally stable, mature members of the polity. But that does not 

mean that every restriction must be assessed on a person-byperson 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 categorical restrictions are not subject to independent constitutional 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, disability, 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 regulation 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 alternative 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 inspections. 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—notably, 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 outpouring of scholarship on the origins and meaning of the Second 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 constitutional 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 Professor 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 allowed to own or possess guns. In addition, one needs to look 

at the regulatory method the statute embodies: total disarmament for life; disarmament for a term of years; qualified rights 

to have the weapon with proper sureties; restrictions on particularly 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 demand 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 regulation burdens a law-abiding citizen’s right to armed selfdefense.” 142 S. Ct. at 2133. If a certain burden was understood 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 constitutional 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. __ (forthcoming 2023) at 8. 

With the open-mindedness that the historical approach inherently reflects, we have not only the right, but the obligation, to look carefully at the record behind the felon disentitlement statutes. That record reveals that, since the founding, 

governments have been understood to have the power to single 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 conclusively 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 precisely 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 Territory, 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 reservation 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 rebellion, 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 firearm.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 argument about the scope of government authority under the Second 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 analysis in Bruen could not have been intended to be the last word 

on historical analysis relevant to the Second Amendment. Instead, it set the methodological stage. There have been scholarly criticisms of its assumption that three colonial-era regulations 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 insofar 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 political 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 before 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 legislating 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. Tompkins, 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, nonviolent 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 illegally 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 challenges 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, considering 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 illustrated in laws that disarmed Native Americans, religious minorities, and those who refused to take a loyalty oath. See Jackson, -- F.4th at *5. This led the Jackson court to conclude “history demonstrates that there is no requirement for an individualized 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 Circuit reversed course and decided that the history and tradition 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 consult the public record, discern the generally applicable principles, and avoid unnecessary reliance on statutory minutiae. 

My own effort to do so convinces me that the pre-constitutional understanding of the right to keep and bear arms memorialized in the Second Amendment came with an understanding 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 restraining 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 intimate 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 Violence/Intimate Partner Violence Facts, https://psychiatry.emory.edu/niaproject/resources/dv-facts.html. The National Coalition against Domestic Violence estimates that in 

2018, 1,014 women were killed by male intimate partners. National Coalition Against Domestic Violence, Domestic Violence & Firearms 1 (2022) https://assets.speakcdn.com/assets/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 statutory tools—including categorical disarmament—that governments 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 committed 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 Parliament, and later Congress and the state bodies) was empowered to regulate guns through categorical restrictions. Sometimes 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 Second 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.