PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 21-2835 

________________ 

BRYAN DAVID RANGE,

Appellant 

v.

ATTORNEY GENERAL UNITED 

STATES OF AMERICA; REGINA LOMBARDO, 

Acting Director, Bureau of Alcohol, Tobacco, Firearms 

and Explosives 

________________ 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D. C. No. 5-20-cv-03488) 

District Judge: Honorable Gene E.K. Pratter 

________________ 

Argued on September 19, 2022 

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges 

(Opinion filed November 16, 2022) 
2

Michael P. Gottlieb (ARGUED)

Vangrossi & Recchuiti

319 Swede Street

Norristown, PA 19401

Counsel for Appellant

Kevin B. Soter (ARGUED)

Mark B. Stern

United States Department of Justice

Civil Division, Room 7222

950 Pennsylvania Avenue, NW

Washington, DC 20530

Counsel for Appellee

Joseph G.S. Greenlee (ARGUED)

Firearms Policy Coalition Action

5550 Painted Mirage Road

Suite 320

Las Vegas, NV 89149

Counsel for Amicus Appellant

________________

OPINION

________________
3

Per Curiam∗

In District of Columbia v. Heller, the Supreme Court 

held that “the right of the people to keep and bear Arms,” 

enshrined in the Second Amendment, is an individual right. 

554 U.S. 570, 595 (2008). While the precise contours of that 

individual right are still being defined, the Court has repeatedly 

stated that it did not question the “longstanding prohibition[] 

on the possession of firearms by felons.” Id. at 626. 

Appellant Bryan Range falls in that category, having 

pleaded guilty to the felony-equivalent charge of welfare fraud 

under 62 Pa. Cons. Stat. § 481(a). He now brings an as-applied 

challenge to 18 U.S.C. § 922(g)(1), contending that his 

disarmament is inconsistent with the text and history of the 

Second Amendment and is therefore unconstitutional under 

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 

2111 (2022). We disagree. Based on history and tradition, we 

conclude that “the people” constitutionally entitled to bear 

arms are the “law-abiding, responsible citizens” of the polity, 

id. at 2131, a category that properly excludes those who have 

demonstrated disregard for the rule of law through the 

commission of felony and felony-equivalent offenses, whether 

or not those crimes are violent. Additionally, we conclude that 

even if Range falls within “the people,” the Government has 

met its burden to demonstrate that its prohibition is consistent 

with historical tradition. Accordingly, because Range’s 

felony-equivalent conviction places him outside the class of 

people traditionally entitled to Second Amendment rights, and 

∗ We issue this precedential opinion per curiam to reflect both 

its unanimity and the highly collaborative nature of its 

preparation.
4

because the Government has shown the at-issue prohibition is 

consistent with historical tradition, we will affirm the District 

Court’s summary judgment in favor of the Government.

I. Factual and Procedural Background

In 1995, Range pleaded guilty to making false 

statements about his income to obtain $2,458 of food stamp 

assistance in violation of 62 Pa. Cons. Stat. § 481(a), a 

conviction that was then classified as a misdemeanor 

punishable by up to five years’ imprisonment.1

 Range was 

sentenced to three years’ probation, $2,458 in restitution, 

$288.29 in costs, and a $100 fine. He has paid the fine, costs,

and restitution.

Congress has deemed it “unlawful for any person . . . 

who has been convicted in any court, of a crime punishable by 

imprisonment for a term exceeding one year”—the definition 

of a felony under both federal law, 18 U.S.C. § 3156(a)(3), and 

traditional legal principles, see Felony, Black’s Law 

Dictionary (11th ed. 2019)—to “possess in or affecting 

commerce, any firearm or ammunition.”2 18 U.S.C. 

1 In 2018, Pennsylvania amended § 481(b) so that welfare fraud 

involving “$1,000 or more” in fraudulently obtained assistance 

became a “[f]elony of the third degree.” 62 Pa. Cons. Stat.

§ 481(b) (2018). However, the parties agree that the offense’s 

categorization at the time of Range’s guilty plea controls for 

purposes of our analysis. 

2 Congress exercised its discretion to exclude certain categories 

of offenses from this ban, such as “antitrust violations, unfair 

trade practices, restraints of trade, or other similar offenses[.]” 

18 U.S.C. § 921(a)(20)(A).
5

§ 922(g)(1). In deference to state legislatures, Congress also 

raised the bar for “any State offense classified by the laws of 

the State as a misdemeanor” by excluding from the prohibition

those misdemeanors “punishable by a term of imprisonment of 

two years or less.” Id. § 921(a)(20)(B).

3

 Put differently, it 

treated state misdemeanors punishable by more than two years’ 

imprisonment as felony-equivalent offenses. As the maximum 

punishment for Range’s offense was five years’ imprisonment, 

his conviction subjected him to § 922(g)(1). 

Three years after his conviction, Range attempted to 

purchase a firearm but was “rejected by the instant background 

check system.” App. 46, 68, 203. Range’s wife subsequently 

bought him a deer-hunting rifle, and when that rifle was 

destroyed in a house fire, she bought him another.

4

 Sometime 

in 2010 or 2011, believing his first rejection was an error, 

Range again attempted to purchase a firearm. Again, he was 

rejected by the instant background check system. Several 

years after this rejection, Range “researched the matter” and 

learned that he was barred from purchasing and possessing 

firearms because of his welfare fraud conviction. App. 46, 

205–06. Having “realize[d] that [he] was not allowed to 

3 For ease of reference, we use the term “felony-equivalent” to 

refer to these misdemeanors. We do not address whether

individuals convicted of misdemeanors carrying lesser 

punishments can be disarmed consistent with the Second 

Amendment.

4 A shotgun that Range’s father had given him as a teenager 

was also destroyed in the fire. After his father died in 2008, 

Range came into possession of his father’s pistol, but gave it 

away within a month. 
6

possess a firearm,” he sold his deer hunting rifle to a firearms

dealer. App. 201. 

Range has hunted regularly for at least twenty years, 

most frequently using a bow or a muzzleloader. During the 

years that he possessed a deer hunting rifle, he routinely hunted 

with it on the first morning and the two Saturdays of each twoweek season. He maintained a Pennsylvania hunting license at 

the time he filed his lawsuit and averred in deposition 

testimony that if not barred by § 922(g)(1), he would “for sure” 

purchase another hunting rifle and “maybe a shotgun” for selfdefense in his own home. App. 46, 184, 197, 198, 200–02, 

210. 

In 2020, Range filed suit in the Eastern District of 

Pennsylvania, seeking a declaratory judgment that § 922(g) 

violates the Second Amendment as applied to him, as well as 

an injunction to bar its enforcement against him. Both Range 

and the Government moved for summary judgment. The 

District Court applied the two-step test that this Court adopted 

in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) and 

amplified in Binderup v. Attorney General, 836 F.3d 336 (3d 

Cir. 2016) (en banc), which asks whether (1) a regulation 

burdens conduct protected by the right to keep and bear arms, 

and (2) if so, whether that regulation survives means-end 

scrutiny, id. at 346 (quoting Marzzarella, 614 F.3d at 89). 

Applying Binderup, the District Court concluded that Range’s 

challenge failed at step one because the Second Amendment 

does not protect “unvirtuous citizens,” including any person 

convicted of “a serious offense,” id. at 349, and Range’s 

offense qualified as serious under the factors we had identified. 
7

The District Court therefore granted the Government’s motion 

for summary judgment, and this appeal followed. 

While Range’s appeal was pending, the Supreme Court 

issued Bruen, rejecting the means-end component of the 

second step of Marzzarella and Binderup and holding the first 

step was “broadly consistent with Heller” to the extent it 

focused on “the Second Amendment’s text, as informed by 

history.” 142 S. Ct. at 2127. The Government filed a letter 

pursuant to Federal Rule of Appellate Procedure 28(j), 

contending that Range’s Second Amendment challenge still 

must fail under Bruen’s framework. Range responded with his 

own Rule 28(j) letter, underscoring Bruen’s emphasis on 

history and asserting “there is no history in 1791 that given the 

facts of Mr. Range’s case that he would be disarmed and 

prevented from owning and possessing firearms.” Dkt. No. 41 

at 2. The panel ordered supplemental briefing on (1) Bruen’s 

impact, if any, on the multifactor analysis developed in 

Binderup and Holloway v. Attorney General, 948 F.3d 164 (3d 

Cir. 2020); (2) whether Bruen shifts the burden to the 

Government to prove that the challenger is outside the scope 

of those entitled to Second Amendment rights, and whether the 

Government has met that burden here; and (3) whether we

should remand this matter to the District Court.5

5 The relevant factual record has been fully developed, and the 

appeal raises “purely legal questions upon which an appellate 

court exercises plenary review,” Comite’ De Apoyo A Los 

Trabajadores Agricolas v. Perez, 774 F.3d 173, 187 (3d Cir. 

2014) (quoting Hudson United Bank v. LiTenda Mortg. Corp., 

142 F.3d 151, 159 (3d Cir. 1998)), so we can apply Bruen and 

resolve this matter without remand, see Hudson, 142 F.3d

at 159.
8

In supplemental briefing on the effect of Bruen, Range 

argues that the history and tradition of the Second Amendment 

demonstrates that only individuals with a dangerous propensity 

for violence, as opposed to peaceful citizens like him, can be 

disarmed. Amici filed a brief on Range’s behalf, echoing his 

contention that “[t]he historical tradition of disarming 

dangerous persons provides no justification for disarming 

Range.” Amicus Br. 26. The Government urges us to reject a 

narrow focus on dangerousness, reaffirm our holdings in 

Binderup and subsequent cases that the Second Amendment 

extends only to people considered “virtuous citizens,” and 

therefore hold that there is a longstanding tradition of 

disarming citizens who are not law-abiding.
9

With the benefit of Bruen, cases applying Bruen,

6 and 

the parties’ briefing and arguments, we turn to the merits of 

Range’s appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. 

§ 1331. We have appellate jurisdiction under 28 U.S.C. 

§ 1291. We review the District Court’s order granting 

summary judgment de novo, see Mylan Inc. v. SmithKline

Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), viewing the 

facts and making all reasonable inferences in the non-movant’s 

favor, see Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,

266–67 (3d Cir. 2005). Summary judgment is appropriate 

where “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party is entitled to judgment as a 

matter of law when the non-moving party fails to make “a 

sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.”7 See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

III. Bruen’s Doctrinal Impact

Applying Bruen’s historical focus, we conclude 

§ 922(g)(1) comports with legislatures’ longstanding authority 

and discretion to disarm citizens unwilling to obey the 

government and its laws, whether or not they had demonstrated 

a propensity for violence. We proceed in two parts. We begin 

by explaining how the Supreme Court replaced our two-step 

framework with a distinct test focused on the text and history 

of the Second Amendment. Next, we examine disarmament 

laws from the seventeenth to the nineteenth centuries to 
10

6 Although we appear to be the first Court of Appeals to address 

the constitutionality of 18 U.S.C. § 922(g)(1) since the 

Supreme Court decided Bruen, a number of district courts have 

done so. See United States v. Young, No. 22-CR-54, 2022 WL 

16829260, at *11 (W.D. Pa. Nov. 7, 2022); United States v. 

Minter, No. 22-CR-135, 2022 WL 10662252, at *6–7 (M.D. 

Pa. Oct. 18, 2022); United States v. Trinidad, No. 21-CR-398, 

2022 WL 10067519, at *3 (D.P.R. Oct. 17, 2022); United 

States v. Raheem, No. 20-CR-61, 2022 WL 10177684, at *3 

(W.D. Ky. Oct. 17, 2022); United States v. Carrero, No. 22-

CR-30, 2022 WL 9348792, at *3 (D. Utah Oct. 14, 2022); 

United States v. Riley, No. 22-CR-163, 2022 WL 7610264, at 

*10, *13 (E.D. Va. Oct. 13, 2022); United States v. Price, No. 

22-CR-97, 2022 WL 6968457, at *9 (S.D.W. Va. Oct. 12, 

2022); United States v. Daniels, No. 3-CR-83, 2022 WL 

5027574, at *4 (W.D.N.C. Oct. 4, 2022); United States v. 

Charles, No. 22-CR-154, 2022 WL 4913900, at *11 (W.D. 

Tex. Oct. 3, 2022); United States v. Siddoway, No. 21-CR-205, 

2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022); United 

States v. Collette, No. 22-CR-141, 2022 WL 4476790, at *8 

(W.D. Tex. Sept. 25, 2022); United States v. Coombes, No. 22-

CR-189, 2022 WL 4367056, at *8, *11 (N.D. Okla. Sept. 21, 

2022); United States v. Hill, No. 21-CR-107, 2022 WL 

4361917, at *3 (S.D. Cal. Sept. 20, 2022); see also United

States v. Ridgeway, No. 22-CR-175, 2022 WL 10198823, *2 

(S.D. Cal. Oct. 17, 2022); United States v. Cockerham, No. 21-

CR-6, 2022 WL 4229314, at *2 (S.D. Miss. Sept. 13, 2022); 

United States v. Jackson, No. CR 21-51, 2022 WL 4226229, at 

*3 (D. Minn. Sept. 13, 2022); United States v. Burrell, No. 21-

20395, 2022 WL 4096865, at *3 (E.D. Mich. Sept. 7, 2022); 
11

determine whether Range’s disarmament fits within the 

nation’s history and tradition of the right to keep and bear arms.

United States v. Ingram, No. 18-CR-557, 2022 WL 3691350, 

at *3 (D.S.C. Aug. 25, 2022).

7 While Range’s standing to bring this claim was not 

challenged by Government nor discussed by the District Court, 

“we have ‘an independent duty to satisfy ourselves of our 

jurisdiction . . . .’” Bedrosian v. IRS, 912 F.3d 144, 149 (3d

Cir. 2018) (quoting Papotto v. Hartford Life & Acc. Ins. Co.,

731 F.3d 265, 269 (3d Cir. 2013)). The party invoking federal 

jurisdiction must establish the three elements forming “the 

irreducible constitutional minimum of standing”: injury in fact, 

causation, and redressability. Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992). “When an individual is subject to 

[threatened enforcement of a law], an actual arrest, 

prosecution, or other enforcement action is not a prerequisite 

to challenging the law.” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014). Here, Range met his burden by 

showing that the Government’s prohibition twice thwarted him 

from purchasing a firearm and by averring that he would 

purchase a hunting rifle but for § 922(g)(1). See Parker v.

District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“The 

formal process of application and denial, however routine, 

makes the injury to [the petitioner’s] alleged constitutional 

interest concrete and particular.”), aff’d sub nom. District of

Columbia v. Heller, 554 U.S. 570 (2008); Dearth v. Holder,

641 F.3d 499, 503 (D.C. Cir. 2011) (affirming that the 

petitioner suffered a cognizable injury where “the federal 

regulatory scheme thwarts his continuing desire to purchase a 

firearm”).
12

A. Post-Bruen Standard for Second 

Amendment Challenges

The Supreme Court’s decision in Bruen modifies our 

prior test for analyzing Second Amendment challenges to 18 

U.S.C. § 922(g)(1). 

Before Bruen, we analyzed Second Amendment 

challenges under a two-part test that was eventually adopted by 

most of our sister Circuits. Marzzarella, 614 F.3d at 89; see 

also Binderup, 836 F.3d at 346 (“Nearly every court of appeals 

has cited Marzzarella favorably.”). At the first step, we 

considered whether the challenged law burdened conduct 

within the scope of the Second Amendment. Marzzarella, 614 

F.3d at 89. In examining this subject, we observed that “the 

right to bear arms was tied to the concept of a virtuous citizenry 

and that accordingly, the government could disarm ‘unvirtuous 

citizens[,]” including “any person who has committed a serious 
13

criminal offense, violent or nonviolent.”8

 Binderup, 836 F.3d 

at 348 (quoting United States v. Yancey, 621 F.3d 681, 684–85 

(7th Cir. 2010)); see also Heller, 554 U.S. at 626–27 & n.26. 

If the first step was met, we proceeded to the second step and 

assessed whether the regulation withstood means-end scrutiny. 

Marzzarella, 614 F.3d at 89.

Bruen, however, abrogated Binderup’s two-step inquiry 

and directed the federal courts, in a single step, to look to the 

Second Amendment’s text and “the Nation’s historical 

tradition of firearm regulation.” 142 S. Ct. at 2126, 2130; see 

also Frein v. Pa. State Police, 47 F.4th 247, 254, 256 (3d Cir. 

2022) (recognizing Bruen abrogated our two-step 

8 On that point, Judge Ambro’s three-judge plurality in 

Binderup was joined by the seven judges who signed onto 

Judge Fuentes’s partial concurrence and partial dissent. See 

Binderup, 836 F.3d at 348–49; id. at 387, 389–90 (Fuentes, J., 

concurring in part). Judge Hardiman, joined by four other 

judges, concurred in part and concurred in the judgment. Id. at 

357 (Hardiman, J., concurring in part). Judge Hardiman

reasoned that under “traditional limitations on the right to keep 

and bear arms” legislatures could disarm only individuals with 

a “demonstrated proclivity for violence.” Id.; see also Folajtar 

v. Att’y Gen., 980 F.3d 897, 912 (3d Cir. 2020) (Bibas, J., 

dissenting) (stating that “the historical limits on the Second 

Amendment” permitted legislatures to disarm felons “only if 

they are dangerous”), cert. denied sub nom. Folajtar v. 

Garland, 141 S. Ct. 2511 (2021).
14

framework).9

 “Only if a firearm regulation is consistent with 

this Nation’s historical tradition may a court conclude that the 

individual’s conduct falls outside the Second Amendment’s 

‘unqualified command.’” Bruen, 142 S. Ct. at 2126 (quoting 

Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)). 

Additionally, because “the Constitution presumptively protects 

[individual] conduct” covered by “the Second Amendment’s 

plain text,” the Court explained, the government has the burden 

of justifying its regulation of that conduct by demonstrating 

“not simply [] that the regulation promotes an important 

9 Given Bruen’s focus on history and tradition, Binderup’s 

multifactored seriousness inquiry no longer applies. In the 

context of a challenge based upon the challenger’s status postBinderup, Bruen requires consideration of whether there is a 

historical foundation for governmental restrictions on firearms 

possession based on the challenger’s specific status. If that 

status changes, then the law would no longer apply to that 

person. Thus, there is still room for “as-applied” challenges 

even after Bruen. 
15

interest,” but that “the regulation is consistent with this 

Nation’s historical tradition of firearm regulation.” Id.10 

Under Bruen, the question is whether the regulation at 

issue is “relevantly similar” to regulations at the Founding. Id.

at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 

106 Harv. L. Rev. 741, 773 (1993)). To make that 

determination, we must employ “analogical reasoning” and 

compare “how and why the regulations burden a law-abiding 

citizen’s right to armed self-defense.” Id. at 2132–33. 

Specifically, the government must “identify a well-established 

and representative historical analogue, not a historical twin.” 

Id. at 2133. “So even if a modern-day regulation is not a dead 

ringer for historical precursors, it still may be analogous 

enough to pass constitutional muster.” Id.

Bruen does not preclude our review of Range’s appeal 

on the record before us. Bruen did not address the substantive 

issues that we must now determine. Unlike the open-carry 

licensing regime in Bruen that created a conduct-based 

constraint on public carry, § 922(g)(1) imposes a status-based 

restriction—namely, a possession ban on those convicted of 

crimes punishable by more than one year in prison or by more 

10 In Binderup, we had imposed the burden at step one on the 

challenger, rather than on the government, 836 F.3d at 347, but 

after Bruen, we note that the government must now meet this 

burden in the district court, see 142 S. Ct. at 2126 (citing 

United States v. Boyd, 999 F.3d 171, 185 (3d Cir. 2021)). 

Because Bruen came down after the Government made its case 

in the District Court, we look to its filings in the District Court 

as well as its supplemental briefs on Bruen’s impact to find that 

it has met its burden. 
16

than two years in prison in the case of state law misdemeanors. 

See Eugene Volokh, Implementing the Right to Keep and Bear 

Arms for Self-Defense: An Analytical Framework and a 

Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009)

(distinguishing between “what,” “who,” “where,” “how,” and 

“when” firearm restrictions). Despite that difference, Bruen

still requires us to assess whether the Government has 

demonstrated through relevant historical analogues that 

§ 922(g)(1) “is consistent with this Nation’s historical tradition 

of firearm regulation.” 142 S. Ct. at 2134. As set forth below, 

the historical record shows that legislatures had broad 

discretion to prohibit those who did not respect the law from 

having firearms. Our assessment confirms that individuals like 

Range, who commit felonies and felony-equivalent offenses, 

are not part of “the people” whom the Second Amendment 

protects. Therefore, § 922(g)(1) as applied to Range is 

constitutional under the Second Amendment.

B. Scope of Second Amendment Rights in 

Historical Perspective

As instructed by Bruen, we begin our analysis with the 

text of the Second Amendment, which protects “the right of the 

people to keep and bear Arms,” U.S. Const. amend. II, and 

consider if Range, as a felon equivalent under 18 U.S.C. 

§ 921(a)(20)(B), is among those protected by the Amendment. 

Cf. Binderup, 836 F.3d at 357 (Hardiman, J., concurring in 

part) (“[T]he Founders understood that not everyone possessed 

Second Amendment rights. These appeals require us to decide 

who count among ‘the people’ entitled to keep and bear 

arms.”); United States v. Quiroz, No. 22-CR-00104, 2022 WL 

4352482, at *10 (W.D. Tex. Sept. 19, 2022) (explaining “this 
17

Nation does have a historical tradition of excluding specific 

groups from the rights and powers reserved to ‘the people’”).

The language of Bruen provides three insights into 

pertinent limits on “the people” whom the Second Amendment 

protects. First, the majority characterized the holders of 

Second Amendment rights as “law-abiding” citizens no fewer 

than fourteen times. Bruen, 142 S. Ct. at 2122, 2125, 2131, 

2133–34, 2135 n.8, 2138 & n.9, 2150, 2156; accord Heller, 

554 U.S. at 625, 635. These included its holding that the New 

York statute “violates the Fourteenth Amendment in that it 

prevents law-abiding citizens with ordinary self-defense needs 

from exercising their right to keep and bear arms,” Bruen, 142 

S. Ct. at 2156, its explanation that the Second Amendment 

“‘elevates above all other interests the right of law-abiding, 

responsible citizens to use arms’ for self-defense,” id. at 2131 

(quoting Heller, 554 U.S. at 635), and its instruction to identify 

historical analogues to modern firearm regulations by 

assessing “how and why the regulations burden a law-abiding 

citizen’s right to armed self-defense,” id. at 2133.11 The Court 

11 See also Bruen 142 S. Ct. at 2122 (“[T]he Second and 

Fourteenth Amendments protect the right of an ordinary, lawabiding citizen to possess a handgun in the home for selfdefense.”); id. (“[O]rdinary, law-abiding citizens have a 

similar right to carry handguns publicly for their selfdefense.”); id. at 2125 (explaining petitioners were “lawabiding, adult citizens”); id. at 2133 (describing New York’s 

argument that “sensitive places where the government may 

lawfully disarm law-abiding citizens include all places where 

people typically congregate” (quotations omitted)); id. at 2134 

(reiterating that petitioners are “two ordinary, law-abiding, 
18

also quoted nineteenth-century sources extending the right to 

keep and bear arms to “all loyal and well-disposed 

inhabitants,” and disarming any person who made “an 

improper or dangerous use of weapons.” Id. at 2152 (emphasis 

added) (quoting Cong. Globe, 39th Cong., 1st Sess., at 908–

909; and Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865).

Second, the Court clarified that, despite the infirmity of 

New York’s discretionary may-issue permitting regime, 

“nothing in our analysis should be interpreted to suggest the 

adult citizens”); id. at 2135 n.8 (“[I]n light of the text of the 

Second Amendment, along with the Nation’s history of firearm 

regulation, we conclude below that a State may not prevent 

law-abiding citizens from publicly carrying handguns because 

they have not demonstrated a special need for self-defense.”); 

id. at 2138 (“Nor is there any such historical tradition limiting

public carry only to those law-abiding citizens who 

demonstrate a special need for self-defense.”); id. at 2138 n.9 

(noting shall-issue public carry licensing laws “do not 

necessarily prevent ‘law-abiding, responsible citizens’ from 

exercising their Second Amendment right to public carry” but 

rather “are designed to ensure only that those bearing arms in 

the jurisdiction are, in fact, law-abiding, responsible citizens”

(quotation omitted)); id. at 2150 (observing “none [of the 

historical regulations surveyed] operated to prevent lawabiding citizens with ordinary self-defense needs from carrying 

arms in public for that purpose”); id. at 2156 (“Nor, subject to 

a few late-in-time outliers, have American governments 

required law-abiding, responsible citizens to demonstrate a 

special need for self-protection distinguishable from that of the 

general community in order to carry arms in public.” 

(quotations omitted)).
19

unconstitutionality of the 43 States’ ‘shall-issue’ licensing 

regimes . . . [,] which often require applicants to undergo a 

[criminal] background check” and “are designed to ensure only 

that those bearing arms in the jurisdiction are, in fact ‘lawabiding, responsible citizens.’” Id. at 2138 n.9 (quoting Heller, 

554 U.S. at 635). These criminal background checks that the 

Court indicated are constitutional are not limited to violent 

offenses; shall-issue statutes typically disqualify any person 

“prohibited from possessing a firearm under federal law.” 

Wash. Rev. Code Ann. § 9.41.070(1)(a) (2021); accord Colo. 

Rev. Stat. Ann. § 18-12-203(1)(c) (2021); Kan. Stat. Ann. § 

75-7c04(a)(2) (2021); Miss. Code. Ann. § 45-9-101(2)(d) 

(2022); N.H. Rev. Stat. Ann. § 159:6(I)(a) (2021); N.C. Gen. 

Stat. Ann. § 14-415.12(b)(1) (2022).

Third, neither Bruen nor either of the Court’s earlier 

explanations of the individual right to keep and bear arms casts 

doubt on § 922(g)(1). To the contrary, Justice Scalia’s 

majority opinion in Heller twice described “prohibitions on the 

possession of firearms by felons” as both “longstanding” and 
20

“presumptively lawful[.]” 554 U.S. 626–27 & n.26.12 Writing 

for the McDonald plurality, Justice Alito “repeat[ed] those 

assurances.” 561 U.S. at 786. In Bruen, Justice Thomas’s 

majority opinion acknowledged that the right to keep and bear 

arms is “subject to certain reasonable, well-defined 

restrictions,” Bruen, 142 S. Ct. at 2156 (citing Heller, 554 U.S. 

at 581), and the concurrences by Justices Alito and Kavanaugh, 

the latter joined by the Chief Justice, echoed the Court’s 

assertions in Heller and McDonald. Id. at 2162 (Kavanaugh, 

J., concurring) (quoting Heller, 554 U.S. at 626–27 & n.26); 

id. at 2157 (Alito, J., concurring); see also United States v. 

Coombes, No. 22-CR-00189, 2022 WL 4367056, at *9 (N.D. 

Okla. Sept. 21, 2022) (“[T]he Bruen majority did not abrogate 

its prior statements in Heller and McDonald.”).

Thus, although the Supreme Court has not provided an 

“exhaustive historical analysis . . . of the full scope of the 

Second Amendment,” Bruen, 142 S. Ct. at 2128; Heller, 554 

U.S. at 626, Heller, McDonald, and Bruen provide a window 

12 We note that Congress enacted the federal felon-inpossession statute in 1938 and extended it to non-violent 

offenses in 1961. See United States v. Booker, 644 F.3d 12, 24 

(1st Cir. 2011); cf. Freedom from Religion Found., Inc. v. 

County of Lehigh, 933 F.3d 275, 283 (3d Cir. 2019) (describing 

a 75-year-old religious symbol as part of “our Nation’s public 

tradition” and therefore “entitled . . . to a ‘strong presumption 

of constitutionality’” under the First Amendment (quoting Am. 

Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2085 (2019))). 

As explained below, however, the history and tradition of 

disarming those who have committed offenses demonstrating

disrespect for the rule of law dates back to at least the 

seventeenth century.
21

into the Court’s view of the status-based disarmament of 

criminals: that this group falls outside “the people”—whether 

or not their crimes involved violence—and that § 922(g)(1) is 

well-rooted in the nation’s history and tradition of firearm 

regulation.13

Our Court’s own review of the historical record 

supports the Supreme Court’s understanding: Those whose 

criminal records evince disrespect for the law are outside the 

community of law-abiding citizens entitled to keep and bear 

arms.14 Our previous decisions, endorsed by several sister 

courts of appeals, have expressed a related view in terms of the 

13 It remains the case, of course, that the executive branch also 

has authority to impose firearms-related directives and 

regulations consistent with the history and tradition, e.g., in the 

form of executive orders or through ATF or local executive 

agencies. 14 By no means do we suggest that legislatures have carte 

blanche to disarm anyone who commits any crime. Rather, we 

decide only that the disarmament of individuals convicted of 

felony and felony-equivalent offenses comports with the 

Second Amendment.
22

theory of “civic virtue.”15 See, e.g., Folajtar v. Att’y Gen., 980 

F.3d 897, 902 (3d Cir. 2020); Binderup, 836 F.3d at 348; 

United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir. 

2012); United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 

2010); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 

2010). Moreover, as detailed below, the pertinent historical 

periods were replete with laws “relevantly similar” to the 

modern prohibition on felon firearm possession because they 

categorically disqualified people from possessing firearms 

15 Numerous works of legal scholarship have espoused the 

civic virtue theory of the Second Amendment. See, e.g., Don 

B. Kates & Clayton E. Cramer, Second Amendment Limitations 

and Criminological Considerations, 60 Hastings L.J. 1339, 

1360 (2008); Saul Cornell & Nathan DeDino, A Well 

Regulated Right: The Early American Origins of Gun Control, 

73 Fordham L. Rev. 487, 492 (2004); Saul Cornell, “Don’t 

Know Much About History”: The Current Crisis in Second 

Amendment Scholarship, 29 N. Ky. L. Rev. 657, 672 (2002) 

[hereinafter Cornell, Don’t Know Much About History]; David 

Yassky, The Second Amendment: Structure, History, and 

Constitutional Change, 99 Mich. L. Rev. 588, 626 (2000); 

Glenn Harlan Reynolds, A Critical Guide to the Second 

Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates, 

Jr., The Second Amendment: A Dialogue, 49 L. & Contemp. 

Probs. 143, 146 (1986); Anthony J. Zarillo III, Comment, 

Going off Half-Cocked: Opposing as-Applied Challenges to 

the “Felon-in-Possession” Prohibition of 18 U.S.C. § 

922(g)(1), 126 Penn St. L. Rev. 211, 238 (2021). We concur 

with the civic virtue theory inasmuch as a person’s lack of 

virtue in the eyes of the community served as a proxy for 

willingness to disobey the law.
23

based on a judgment that certain individuals were 

untrustworthy parties to the nation’s social compact.

16 

The Bruen Court warned that “not all history is created 

equal” and catalogued the sources that are most probative of 

the right’s original meaning. 142 S. Ct. at 2136. Emphasizing 

that the right codified in the Second Amendment was a “preexisting right,” the Court saw particular relevance in “English 

history dating from the late 1600s, along with American 

colonial views leading up to the founding.” Id. at 2127 (citing 

Heller, 554 U.S. at 595).

17 The Court made this same point in 

Heller. 554 U.S. at 592. The Bruen Court also found highly 

relevant post-ratification practices from the late eighteenth and 

early nineteenth centuries. See Bruen, 142 S. Ct. at 2136. In 

contrast, although the Court considered history from 

Reconstruction to the late nineteenth century, it underscored 

that it did so merely to confirm its conclusions and that 

evidence from this period is less informative. See id. at 2137.

16 See Folajtar, 980 F.3d at 911 (“Legislatures have always 

regulated the right to bear arms.”). 

17 When assessing Founding-era precedents, we must assume 

they derive from a coherent understanding of the right to keep 

and bear arms shared among the American populace. See 

Heller, 554 U.S. at 604–05 (“[T]hat different people of the 

founding period had vastly different conceptions of the right to 

keep and bear arms . . . simply does not comport with our 

longstanding view that the Bill of Rights codified venerable, 

widely understood liberties.”).
24

1. England’s Restoration and Glorious 

Revolution

We begin with the late seventeenth century, when the 

English government repeatedly disarmed individuals whose 

conduct indicated a disrespect for the sovereign and its 

dictates. Also, the advent of the English Bill of Rights during 

this period confirmed Parliament’s authority to delineate which 

members of the community could “have arms . . . by Law.” 1 

W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689).

In the contentious period following the English Civil 

War, the restored Stuart monarchs disarmed nonconformist 

(i.e., non-Anglican) Protestants. See Joyce Lee Malcolm, To 

Keep and Bear Arms: The Origins of an Anglo-American Right

45 (1994) (describing how Charles II “totally disarmed . . . 

religious dissenters”); Amicus Br. 6 (“Leading up to the 

Glorious Revolution of 1688, . . . nonAnglican [sic] Protestants 

were often disarmed.”). The reason the Crown seized 

nonconformists’ weapons, according to Amici, is that nonAnglican Protestants were dangerous. But the notion that 

every disarmed nonconformist was dangerous defies common 

sense. Moreover, Amici’s resort to dangerousness as the sole 

explanation for this measure ignores Anglicans’ welldocumented concern that nonconformists would not obey the 

King and abide by the law. 

By definition, nonconformists refused to participate in 

the Church of England, an institution headed by the King as a 

matter of English law. See Church of England, BBC (June 30, 

2011),

https://www.bbc.co.uk/religion/religions/christianity/cofe/cof
25

e_1.shtml (describing “the Act of Supremacy” enacted during 

the reign of Henry VIII). Indeed, many refused to take 

mandatory oaths recognizing the King’s sovereign authority 

over matters of religion. See Frederick B. Jonassen, “So Help 

Me?”: Religious Expression and Artifacts in the Oath of Office 

and the Courtroom Oath, 12 Cardozo Pub. L., Pol’y & Ethics 

J. 303, 322 (2014) (describing Charles II’s reinstation of the 

Oath of Supremacy); Caroline Robbins, Selden’s Pills: State 

Oaths in England, 1558–1714, 35 Huntington Lib. Q. 303, 

314–15 (1972) (discussing nonconformists’ refusal to take 

such oaths). Anglicans, in turn, accused nonconformists of 

believing that their faith exempted them from obedience to the 

law. See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ 

v. ‘Antinomians’ in Restoration England, 67 J. Ecclesiastical 

Hist. 325, 326, 334 (2016). In short, the historical record 

suggests nonconformists as a group were disarmed because 

their religious status was viewed as a proxy for disobedience 

to the Crown’s sovereign authority and disrespect for the law, 

placing them outside the civic community of law-abiding 

citizens. 

Even when Protestants’ right to keep arms was restored, 

it was expressly made subject to the discretion of Parliament. 

One year after the Glorious Revolution of 1688 replaced the 

Catholic King James II with William of Orange and Mary, 

James’s Protestant daughter, see Alice Ristroph, The Second 

Amendment in a Carceral State, 116 Nw. U. L. Rev. 203, 228 

(2021), Parliament enacted the English Bill of Rights, which 

declared: “Subjects which are Protestants, may have Arms for 

their Defence suitable to their Conditions, and as allowed by 

Law,” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis 

added). Thus, this declaration, which the Supreme Court has 

described as the “predecessor to our Second Amendment,” 
26

Bruen, 142 S. Ct. at 2141 (quoting Heller, 554 U.S. at 593), 

reveals the “historical understanding,” id. at 2131, that the 

legislature—Parliament—had the power and discretion to 

determine who was sufficiently loyal and law-abiding to 

exercise the right to bear arms. Cf. Lois G. Schwoerer, To Hold 

and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 

27, 47–48 (2000) (explaining how the English Bill of Rights 

preserved Parliament’s authority to limit who could bear arms).

In 1689, Parliament enacted a status-based restriction 

forbidding Catholics who refused to take an oath renouncing 

their faith from owning firearms, except as necessary for selfdefense. An Act for the Better Securing the Government by 

Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, 

ch. 15 (Eng. 1688); see Malcolm, supra, at 123. Proponents of 

the view that disarmament depended exclusively on 

dangerousness have argued that Catholics categorically posed 

a threat of violence at this time. See Kanter v. Barr, 919 F.3d 

437, 457 (7th Cir. 2019) (Barrett, J., dissenting); C. Kevin 

Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. 

J.L. & Pub. Pol’y 695, 723 (2009). Again, however, this 

interpretation not only rests on the implausible premise that all 

Catholics were violent, but also ignores the more likely 

historical reason for disarming this entire group: their 

perceived disrespect for and disobedience to the Crown and 

English law. That is manifest in the statute’s oath requirement. 

When individuals swore that they rejected the tenets of 

Catholicism, their right to own weapons was restored. An Act 

for the Better Securing the Government by Disarming Papists 

and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688).

 

Disavowal of religious tenets hardly demonstrated that 

the swearing individual no longer had the capacity to commit 
27

violence; rather, the oath was a gesture of allegiance to the 

English government and an assurance of conformity to its laws. 

Likewise, contemporaneous arguments against tolerating 

Catholicism contended that Catholics’ faith subverted the rule 

of law by placing the dictates of a “foreign power,” i.e., the 

Pope, before English legal commands. See Diego Lucci, John 

Locke on Atheism, Catholicism, Antinomianism, and Deism, 20 

Etica & Politica/Ethics & Pol. 201, 228–29 (2018). The 

disarmament of Catholics in 1689 thus provides another 

example of the seizure of weapons from individuals whose 

status demonstrated, not a proclivity for violence, but rather a 

disregard for the legally binding decrees of the sovereign.

2. Colonial America

The earliest firearm legislation in colonial America 

prohibited Native Americans, Black people, and indentured 

servants from owning firearms.18 See Michael A. Bellesiles, 

Gun Laws in Early America: The Regulation of Firearms 

Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 578–79 

(1998). Amici contend that these restrictions affected 

individuals outside the political community and so cannot 

serve as analogues to contemporary restraints on citizens like 

18 The status-based regulations of this period are repugnant (not 

to mention unconstitutional), and we categorically reject the 

notion that distinctions based on race, class, and religion 

correlate with disrespect for the law or dangerousness. We cite 

these statutes only to demonstrate legislatures had the power 

and discretion to use status as a basis for disarmament, and to 

show that status-based bans did not historically distinguish 

between violent and non-violent members of disarmed groups.
28

Range. Amicus Br. 30–31; see also Carpio-Leon, 701 F.3d at 

978 n.1 (concluding such individuals may not have been part 

of “the people” at the Founding). But even accepting Amici’s 

argument, colonial history furnishes numerous examples in 

which full-fledged members of the political community as it 

then existed—i.e., free, Christian, white men—were disarmed 

due to conduct evincing inadequate faithfulness to the 

sovereign and its laws.
29

During the late 1630s, for example, an outspoken 

preacher in Boston named Anne Hutchinson challenged the 

Massachusetts Bay government’s authority over spiritual 

matters and instead advocated personal relationships with the 

divine. See Edmund S. Morgan, The Case Against Anne 

Hutchinson, 10 New Eng. Q. 635, 637–38, 644 (1937). 

Governor John Winthrop accused Hutchinson and her 

followers of being Antinomians, those who viewed their 

salvation as exempting them from the law, and banished her. 

Id. at 648; Ann Fairfax Withington & Jack Schwartz, The 

Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226 

(1978). The colonial government also disarmed at least fiftyeight of Hutchinson’s supporters, not because those supporters 

had demonstrated a propensity for violence, but “to embarrass 

the offenders,” as they were forced to personally deliver their 

arms to the authorities in an act of public submission. James 

F. Cooper, Jr., Anne Hutchinson and the “Lay Rebellion”

Against the Clergy, 61 New Eng. Q. 381, 391 (1988). 

Disarming Hutchinson’s supporters, in other words, served to 

shame colonists whose disavowal of the rule of law placed 

them outside the Puritan’s civic community and obedience to 

the commands of the government. Cf. John Felipe Acevedo, 

Dignity Takings in the Criminal Law of Seventeenth-Century 

England and the Massachusetts Bay Colony, 92 Chi.-Kent L. 

Rev. 743, 761 (2017) (describing other shaming punishments 

used at the time, including scarlet letters). 

Likewise, Catholics in the American colonies (as in 

Britain) were subject to disarmament without demonstrating a 

proclivity for violence. It is telling that, notwithstanding 

Maryland’s genesis as a haven for persecuted English 

Catholics, see Michael W. McConnell, The Origins and 

Historical Understanding of Free Exercise of Religion, 103 
30

Harv. L. Rev. 1409, 1424 (1990), Maryland—as well as

Virginia and Pennsylvania—confiscated firearms from their 

Catholic residents during the Seven Years’ War, see Bellesiles, 

supra, at 574; Joseph G.S. Greenlee, The Historical 

Justification for Prohibiting Dangerous Persons from 

Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). That 

decision was not in response to violence; to the contrary, 

Catholics had remained peaceable even when the colony’s 

Anglican Protestants took control of its government and 

required Catholics to take oaths recognizing the legal authority 

of the Crown, rather than the Pope, over matters of religion. 

See Michael Graham, S.J., Popish Plots: Protestant Fears in 

Early Colonial Maryland, 1676–1689, 79 Cath. Hist. Rev. 197, 

197 (1993) (“[L]ittle sustained opposition to [the Anglican 

leadership] crystallized within the colony. What the Protestant 

Associators had done . . . was widely accepted.”); Denis M. 

Moran, Anti-Catholicism in Early Maryland Politics: The 

Protestant Revolution, 61 Am. Cath. Hist. Soc’y 213, 235 

(1950) (explaining how the oaths “asserted the king’s 

supremacy in spiritual as well as in temporal matters”). In sum, 

Protestants in the colonies—as in England—disarmed 

Catholics not because they uniformly posed a threat of armed 

resistance, but rather because the Protestant majorities in those 

colonies viewed Catholics as defying sovereign authority and 

communal values.

3. Revolutionary War

Revolutionary-era history furnishes other examples of 

legislatures disarming non-violent individuals because their 
31

actions evinced an unwillingness to comply with the legal 

norms of the nascent social compact.19

John Locke—whose views profoundly influenced the 

American revolutionaries20—argued that the replacement of 

individual judgments of what behavior is transgressive with 

communal norms is an essential characteristic of the social 

contract. See John Locke, Two Treatises of Government § 163 

(Thomas I. Cook, ed., Hafner Press 1947) (reasoning “there 

only is political society where every one of the members hath 

quitted his natural power [to judge transgressions and] resigned 

it up into the hands of the community”). Members of a social 

compact, he explained, have a civic obligation to comply with 

communal judgments regarding proper behavior.21 

19 Again, we cite the repugnant, status-based regulations of an 

earlier period—disarming individuals on the basis of political 

affiliation or non-affiliation—merely to demonstrate the 

Nation’s tradition of imposing categorical, status-based bans

on firearm possession.

20 See Thad W. Tate, The Social Contract in America, 1774–

1787: Revolutionary Theory as a Conservative Instrument, 22 

Wm. & Mary Q. 375, 376 (1965); see also Gundy v. United 

States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting) 

(observing “John Locke [was] one of the thinkers who most 

influenced the framers[]”). 21 Locke based this duty on the consent of those within the 

political society; however, he contended that mere presence in 

a territory constituted tacit consent to the laws of the reigning 

sovereign. See Locke, supra, § 119 (“[I]t is to be considered 

what shall be understood to be a sufficient declaration of a 

man’s consent to make him subject to the laws of any 
32

In the newly proclaimed states, compliance with that 

civic obligation translated to entitlement to keep and bear arms, 

with many of the newly independent states enacting statutes 

that required individuals, as a condition of keeping their arms, 

to commit to the incipient social compact by swearing fidelity 

to the revolutionary regime.22 See Robert H. Churchill, Gun 

Regulation, the Police Power, and the Right to Keep Arms in 

Early America: The Legal Context of the Second Amendment, 

25 Law & Hist. Rev. 139, 158 (2007). 

In Connecticut, for example, as hostilities with Britain 

worsened, colonists denounced loyalists’ dereliction of their 

duties to the civic community. The people of Coventry passed 

government. There is a common distinction of an express and 

a tacit consent which will concern our present case. . . . [E]very 

man that hath any possessions or enjoyment of any part of the 

dominions of any government doth thereby give his tacit 

consent and is as far forth obliged to obedience to the laws of 

that government, during such enjoyment, as any one under it; 

whether this his possession be of land to him and his heirs for 

ever, or a lodging only for a week, or whether it be barely 

travelling freely on the highway; and, in effect, it reaches as far

as the very being of anyone within the territories of that 

government.”).

22 We cite these laws as evidence of the original understanding 

of the Second Amendment and the traditions concerning 

firearms regulation in historical context. Of course, our social 

and political awareness has obviously evolved significantly 

since that time, and by today’s standards, the concept of 

restricting fundamental rights based on political affiliation 

would be repugnant to the Constitution, including the First 

Amendment.
33

a resolution in 1774 stating loyalists were “unworthy of that 

friendship and esteem which constitutes the bond of social 

happiness, and ought to be treated with contempt and total 

neglect.” G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. 

Rev. 273, 280 (1899) (describing this resolution as “a fair 

sample of most of the others passed at this time”). 

“Committees of Inspection” publicized the names and 

addresses of suspected loyalists in local newspapers, 

describing them as “persons held up to public view as enemies 

to their country,” id. at 280–81, and in 1775, this stigmatization 

of individuals suspected of infidelity to the inchoate United 

States culminated in a statute prohibiting anyone who defamed 

resolutions of the Continental Congress from keeping arms, 

voting, or serving as a civil official, see id. at 282. 

Pennsylvania likewise disarmed non-violent individuals 

who were unwilling to abide by the newly sovereign state’s 

legal norms. The legislature enacted a statute in 1777 requiring 

all white male inhabitants above the age of eighteen to swear 

to “be faithful and bear true allegiance to the commonwealth 

of Pennsylvania as a free and independent state,” Act of June 

13, 1777, § 1 (1777), 9 The Statutes at Large of Pennsylvania 

from 1652–1801 110, 111 (William Stanley Ray ed., 1903), 

and providing that those who failed to take the oath—without 

regard to dangerousness or propensity for physical violence—

“shall be disarmed” by the local authorities, id. at 112–13, § 3. 

This statute is particularly instructive because 

Pennsylvania’s 1776 state constitution protected the people’s 

right to bear arms. See Cornell, Don’t Know Much About 

History, supra, at 670–71; Marshall, supra, at 724. Yet 

Pennsylvania’s loyalty oath law deprived sizable numbers of 

pacifists of that right because oath-taking violated the religious 
34

convictions of Quakers, Mennonites, Moravians, and other 

groups. Jim Wedeking, Quaker State: Pennsylvania’s Guide

to Reducing the Friction for Religious Outsiders Under the 

Establishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006); 

see also Thomas C. McHugh, Moravian Opposition to the 

Pennsylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965) 

(M.A. thesis, Lehigh University) (on file with the Leigh 

Preserve Institutional Repository). So while Amici contend 

that individuals disarmed under loyalty oath statutes “posed a 

grave danger and were often violent,” Amicus Br. 12, 

Pennsylvania’s disarmament of this sizable portion of the 

state’s populace cannot be explained on that ground. See

Heller, 554 U.S. at 590 (“Quakers opposed the use of arms not 

just for militia service, but for any violent purpose whatsoever. 

. . .”); cf. Folajtar, 980 F.3d at 908 n.11 (explaining “[r]efusing 

to swear an oath” does not “qualify as dangerous”).

Instead, the Pennsylvania legislature forbade Quakers 

and other religious minorities from keeping arms because their 

refusal to swear allegiance demonstrated that they would not 

submit to communal judgments embodied in law when it 

conflicted with personal conviction. See Wedeking, supra, at 

51–52 (describing how Quakers were “penal[ized] for 

allegiance to their religious scruples over the new 

government”). The act, in other words, was “an effort by 

Pennsylvania’s Constitutionalist party to restrictively define 

citizenship”—i.e., what eventually became “the people”—“to 

those capable of displaying the requisite virtue.” Cornell, 

Don’t Know Much About History, supra, at 671.

Exercising its broad authority to disarm individuals who 

disrespected the rule of law, Virginia’s General Assembly also 

passed a loyalty oath statute in 1777. An Act to Oblige the 
35

Free Male Inhabitants of this State Above a Certain Age to 

Give Assurance of Allegiances to the Same, and for Other 

Purposes ch. III (1777), 9 Statutes at Large; Being a Collection 

of All the Laws of Virginia, from the First Session of the 

Legislature in the Year 1619 281, 281 (William W. Hening ed.,

1821). That law disarmed “all free born male inhabitants of 

this state, above the age of sixteen years, except imported 

servants during the time of their service” who refused to swear 

their “allegiance and fidelity” to the state. Id. But these 

individuals could not have been considered dangerous spies or 

threats of violence: the statute still required disarmed 

individuals to attend militia trainings and run drills without 

weapons, id. at 282—an indignity previously inflicted upon 

free Black men, Churchill, supra, at 160. Instead, this use of 

disarmament as a method of public humiliation reveals the 

statute’s true social function: distinguishing those unwilling to 

follow the dictates of the new government from law-abiding 

members of the civic community.

In sum, the “how and why,” Bruen, 142 S. Ct. at 2133, 

of these oath statutes’ burden on the right to bear arms teaches 

us two things about the historical understanding of status-based 

prohibitions. First, in keeping with Locke’s view that 

compliance with communal judgment is an inextricable feature 

of political society, these laws “defined membership of the 

body politic” by disarming individuals whose refusal to take 

these oaths evinced not necessarily a propensity for violence, 

but rather a disrespect for the rule of law and the norms of the

civic community. Churchill, supra, at 158. Second, 

legislatures were understood to have the authority and broad 

discretion to decide when disobedience with the law was 

sufficiently grave to exclude even a non-violent offender from 

the people entitled to keep and bear arms. Cf. Dru Stevenson, 
36

In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 

1573, 1586 (2022) (“[T]he founders thought the legislature 

should decide which groups pose a threat to the social order or 

the community.”).

4. Ratification Debates

The ensuing deliberations over whether to ratify the 

Constitution similarly illustrate the Founding generation’s 

understanding of legislatures’ power and discretion over 

disarmament of those not considered law-abiding.

In Pennsylvania, debates between the Federalists and 

Anti-Federalists “were among the most influential and widely 

distributed of any essays published during ratification.” Saul 

Cornell, Commonplace or Anachronism: The Standard Model, 

the Second Amendment, and the Problem of History in 

Contemporary Constitutional Theory, 16 Const. Comment.

221, 227 (1999). Those essays included “The Dissent of the 

Minority,” which was published by the state’s Anti-Federalist 

delegates, id. at 232–33, and which the Supreme Court has 

viewed as “highly influential” to the adoption of the Second 

Amendment, Heller, 554 U.S. at 604. The amendment 

proposed by the Dissent of the Minority stated: 

[T]he people have a right to bear 

arms for the defence of themselves 

and their own State or the United 

States, or for the purpose of killing 

game; and no law shall be passed 

for disarming the people or any of 

them unless for crimes committed, 
37

or real danger of public injury from 

individuals.

2 Bernard Schwartz, The Bill of Rights: A Documentary 

History 665 (1971) (emphasis added). 

As the Dissent of the Minority’s proposal makes clear, 

members of the Founding generation viewed “[c]rimes 

committed—violent or not—[as] . . . an independent ground 

for exclusion from the right to keep and bear arms.” Binderup, 

836 F.3d at 349 (quotation omitted); see also Folajtar, 980 

F.3d at 908–09. Amici insist that the proposal’s crime and 

danger clauses must be read together as authorizing the 

disarmament of dangerous criminals only. See Amicus Br. 16; 

see also Greenlee, supra at 267; Binderup, 836 F.3d at 367 

(Hardiman, J., concurring in part). But the Dissent of the 

Minority’s use of the disjunctive “or” refutes this 

counterargument: The dissenters distinguished between 

criminal convictions and dangerousness, and provided that 

either could support disarmament. See, e.g., United States v. 

Woods, 571 U.S. 31, 45–46 (2013) (explaining the “ordinary 

use” of “or” “is almost always disjunctive”—i.e., “the words 

that it connects are to ‘be given separate meanings’”) (quoting 

Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)).

The Dissent of the Minority therefore comports with the 

longstanding tradition in English and American law of

disarming even non-violent individuals whose actions 

demonstrated a disrespect for the rule of law as embodied in 

the sovereign’s binding norms.
38

5. Other Non-Violent Offenses

Punishments meted out for a variety of non-violent 

offenses between the seventeenth and nineteenth centuries 

provide additional support for legislatures’ authority to disarm 

even non-violent offenders.

Historically, several non-violent felonies were 

punishable by death and forfeiture of the perpetrator’s entire 

estate. See Folajtar, 980 F.3d at 904–05. As the Government 

observes, those offenses included larceny, repeated forgery, 

and false pretenses—all of which involve deceit or the 

wrongful deprivation of another’s property and closely 

resemble Range’s welfare fraud offense. Appellees’ Supp. Br. 

7–8.23 A fortiori, given the draconian punishments that 

traditionally could be imposed for these types of non-violent 

felonies, the comparatively lenient consequence of 

disarmament under 18 U.S.C. § 922(g)(1) is permissible.24

23 See Answering Br. 15 (citing 1 Wayne R. LaFave, 

Substantive Criminal Law § 2.1(b) (3d ed. 2017); Francis 

Bacon, Preparation for the Union of Laws of England and 

Scotland, in 2 The Works of Francis Bacon 160, 163–64 (Basil 

Montagu ed., Cary & Hart 1844); and 2 Jens David Olin, 

Wharton’s Criminal Law § 28:2 (16th ed. 2021)). 

24 The Kanter dissent takes issue with this analysis in part 

because the death penalty was not always imposed. 919 F.3d 

at 458–62 (Barrett, J., dissenting). How punishments were 

meted out is beside the point. What matters is the exposure. 

See id. at 459 (“[M]any crimes remained eligible for the death 

penalty . . . .”).
39

Additionally, legislatures in the American colonies and 

United States authorized the seizure of firearms from 

individuals who committed non-violent, misdemeanor hunting 

offenses.25 In 1652, New Netherlands passed an ordinance that 

forbid “firing within the jurisdiction of this city [of New 

Amsterdam] or about the Fort, with any guns at Partridges or 

other Game that may by chance fly within the city, on pain of 

forfeiting the Gun . . . .” 1652 N.Y. Laws 138. A 1745 North 

Carolina law prohibited nonresidents from hunting deer in “the 

King’s Wast” and stated that any violator “shall forfeit his gun” 

to the authorities. Act of Apr. 20, ch. III (1745), 23 Acts of the 

North Carolina General Assembly 218, 219 (1805). New 

Jersey enacted a statute “for the preservation of deer, and other 

game” in 1771 that punished non-residents caught trespassing 

with a firearm by seizing the individuals’ guns. 1771 N.J. 

Laws 19–20. 

State legislatures continued to enact such laws after the 

Revolution. To protect the sheep of Naushon Island, 

Massachusetts passed a statute requiring armed trespassers on 

25 We appreciate that these laws involved the isolated 

disarmament of the firearm involved in the offense, not a ban 

on possession as in the other laws we discuss above. 

Nevertheless, they support the notion that legislatures’ power 

to strip citizens of their arms was not limited to cases involving 

violent persons or offenses.
40

the island to forfeit their guns.26 An Act for the Protection and 

Security of the Sheep and Other Stock on Tarpaulin Cove 

Island, Otherwise Called Naushon Island, and on 

Nennemessett Island, and Several Small Islands Contiguous, 

Situated in the County of Dukes County § 2 (1790), 1 Private 

and Special Statutes of the Commonwealth of Massachusetts 

258, 259 (Manning & Loring ed., 1805). Virginia and 

Maryland punished individuals who hunted wild fowl on rivers 

at night by seizing their guns. 1832 Va. Acts 70; 1838 Md. 

Laws 291–92. And Delaware law required non-residents who 

hunted wild geese on the state’s waterways to forfeit their guns, 

even though the statute specified that this hunting offense was 

a misdemeanor. 12 Del. Laws 365 (1863).

As these centuries of hunting statutes show, legislatures 

repeatedly exercised their authority to decide when non-violent 

26 A plaintiff suing the trespasser could alternatively seek the 

value of the trespasser’s firearms. An Act for the Protection 

and Security of the Sheep and Other Stock on Tarpaulin Cove 

Island, Otherwise Called Naushon Island, and on 

Nennemessett Island, and Several Small Islands Contiguous, 

Situated in the County of Dukes County § 2 (1790), 1 Private 

and Special Statutes of the Commonwealth of Massachusetts 

258, 259 (Manning & Loring ed., 1805).
41

offenses were sufficiently grave transgressions to justify 

limiting violators’ ability to keep and bear arms.27

* * * * *

We draw three critical lessons from the historical record 

examined above. First, legislatures traditionally used statusbased restrictions to disqualify categories of persons from 

possessing firearms. Second, they did so not merely based on 

an individual’s demonstrated propensity for violence, but 

rather to address the threat purportedly posed by entire 

categories of people to an orderly society and compliance with 

its legal norms. Third, legislatures had, as a matter of separated 

powers, both authority and broad discretion to determine when 

27 We note that history and tradition may indicate that 

pretextual disarmament is inconsistent with the Second 

Amendment. Cf. 1 William Blackstone, Commentaries app. 

*300 (St. George Tucker ed., Birch & Small 1803) (decrying 

how “[i]n England, the people have been disarmed, generally, 

under the specious pretext of preserving the game”); 

Drummond v. Robinson Twp., 9 F.4th 217, 227–29 (3d Cir. 

2021). Range does not claim his conviction was pretextual, 

however, so we leave the issue for another day.
42

individuals’ status or conduct evinced such a threat sufficient 

to warrant disarmament.28

28 Deference to state legislatures not only accords with 

longstanding national tradition, but also respects state 

legislatures’ unique ability to channel local concerns and 

values into criminal law. See Joshua M. Divine, Statutory 

Federalism and Criminal Law, 106 Va. L. Rev. 127, 188 

(2020) (“[F]ederal reliance on state law disturbs uniformity by 

baking into federal law variations in state law. But far from 

being a downside, regional disparity is an asset.”); see also

Paul H. Robinson & Tyler Scot Williams, Mapping American 

Criminal Law: Variations Across the 50 States 4 (2018) 

(surveying state variation in the incorporation of desert, 

deterrence, and incapacitation norms into their criminal laws). 

There is good reason that the criminal codes of arid states like 

Nevada and Colorado include offenses like diverting irrigation 

water, Nev. Rev. Stat. § 207.225 (2021), and causing prairie 

fires, Colo. Rev. Stat. § 18-13-109 (2022), which the code of a 

state like Maryland does not.

In addition to preserving federalism and the separation 

of powers, upholding legislative determinations of when 

crimes are sufficiently serious to warrant disarmament avoids 

forcing “judges to ‘make difficult empirical judgments’ about 

‘the costs and benefits of firearms restrictions,’ especially 

given their ‘lack [of] experience’ in the field.” Bruen, 142 S. 

Ct. at 2130 (quoting McDonald, 561 U.S. at 790–91). And as 

explained above, judicial determinations of when a crime is 

sufficiently violent have proven infeasible to apply in other 

contexts. See Binderup, 836 F.3d at 410 (Fuentes, J., 

concurring in part).
43

IV. Range’s Claims

Having identified the appropriate test and reviewed the 

historical evidence in this area, we now turn to Range’s claims. 

Range committed an offense that Pennsylvania has 

classified as a misdemeanor punishable by more than two 

years’ imprisonment, 62 Pa. Cons. Stat. § 481(a), and Congress 

has concluded is sufficiently serious to exclude Range from the 

body of law-abiding, responsible citizens entitled to keep and 

bear arms, see 18 U.S.C. §§ 921(a)(20)(B), 922(g)(1).29 That 

determination fits comfortably within the longstanding 

tradition of legislation disarming individuals whose actions 

29 Some of our esteemed colleagues have expressed concerns 

about the breadth of state offenses that trigger disarmament 

under 18 U.S.C. § 922(g)(1). Binderup, 836 F.3d at 372 n.20 

(Hardiman, J., concurring in part); Folajtar, 980 F.3d at 921 

(Bibas, J., dissenting). But we do not perceive any inherent 

absurdity in a state’s interest in punishing drug offenders, see

Ariz. Rev. Stat. Ann. § 13–3405, or individuals who abuse 

public services like recycling programs, see Mich. Comp. 

Laws Ann. § 445.574a(1)(d), or libraries, see 18 Pa. Cons. Stat. 

Ann. § 3929.1. Indeed, enforcement of the laws cited by our 

colleagues illustrates why legislatures have chosen to designate 

them as felonies. Cf. United States v. Bocook, 59 F.3d 167, 

167 (4th Cir. 1995) (describing a prosecution for uttering 

obscene language by means of radio communication when a 

defendant “broadcast[s] unauthorized radio messages to 

aircraft and air traffic controllers” in which he “used obscene 

language, harassed a female air traffic controller, made threats 

to shoot down aircraft, and transmitted recorded music, 

weather reports, and warnings about his own activities”).
44

evince a disrespect for the rule of law. Interpreting the text of 

the Second Amendment in light of the right’s “historical 

background,” Bruen, 142 S. Ct. at 2127 (quoting Heller, 554 

U.S. at 592), we conclude that Range’s criminal conviction 

placed him beyond the ambit of “the people” protected by the 

Second Amendment. 

Range asserts that “[t]he Government has failed to meet 

its burden of proving that the plaintiff’s conviction places him 

outside the scope of those entitled to Second Amendment 

rights based on the historical analysis of those who can be 

disarmed.”30 Appellant’s Supp. Br. 1. Notwithstanding the 

30 Moreover, in his supplemental brief, Range appears to raise 

the issue that a permanent ban on firearm possession lacks a 

historical basis. See Appellant’s Supp. Br. 3–4. As to 

arguments concerning the duration of a ban, Congress has 

addressed it in two ways. First, Congress has exempted any 

person whose conviction “has been expunged, or set aside or 

for which a person has been pardoned or has had civil rights 

restored” from disarmament. § 921(a)(20). Second, Congress 

also permitted the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF) to restore individuals’ ability to possess 

firearms upon consideration of their personal circumstances, 

criminal record, and the public interest. 18 U.S.C. § 925(c). 

But these assessments proved so resource intensive for ATF 

that Congress has refused to fund the program since 1992. See 

Logan v. United States, 552 U.S. 23, 28 n.1 (2007); S. Rep. No. 

102-353 (1992). As we previously noted, “[i]f [the petitioner] 

and others in his position wish to seek recourse, it is to the 

legislature, and not to the judiciary, that efforts should be 

directed.” Folajtar, 980 F.3d at 911; Binderup, 836 F.3d at 

402-03 (Fuentes, J., concurring in part and dissenting in part).
45

historical evidence surveyed above, Range contends that his 

disarmament is inconsistent with the nation’s tradition of 

firearm regulation “because he is not dangerous.” Opening Br. 

28. Echoing positions expressed by some judges, Amici agree, 

arguing “English and American tradition support firearm 

prohibitions on dangerous persons” but “[t]here is no tradition 

of disarming peaceable citizens.” Amicus Br. 2; see Folajtar, 

980 F.3d at 912 (Bibas, J., dissenting); Kanter, 919 F.3d at 451 

(Barrett, J., dissenting); Binderup, 836 F.3d at 369 (Hardiman, 

J., concurring in part). Our review of the historical record 

convinces us otherwise. Non-violent individuals were 

repeatedly disarmed between the seventeenth and nineteenth 

centuries because legislatures determined that those 

individuals lacked respect for the rule of law and thus fell 

outside the community of law-abiding citizens. That 

longstanding tradition refutes Range’s constrictive account of 

Anglo-American history as prohibiting the government from 

disarming non-violent individuals.

Amici offer a few statutes that purportedly prove 

legislatures’ inability to disarm non-violent offenders, but 

these laws confirm our view. Specifically, Amici cite a 1785 

Massachusetts law that forbid tax collectors and sheriffs from 

embezzling tax revenue. Amicus Br. 32 (citing 1785 Mass. 

Laws 516).31 Although the statute permitted estate sales to 

recover embezzled funds, “the necessities of life—including 

firearms—could not be sold.” Id. Likewise, Amici discuss a 

1650 Connecticut law exempting weapons from execution in 

civil actions and four statutes providing similar protections for 

31 We note that Amici cited to a 1786 Massachusetts law, but 

the language Amici references comes from Chapter 46 of the 

1785 Act of Massachusetts. 
46

militia arms. Id. at 33 (citing The Public Records of the Colony 

of Connecticut, Prior to the Union with New Haven Colony, 

May 1665, at 537 (J. Hammond Trumbull ed., 1850); 1 Stat. 

271, § 1 (1792); Archives of Maryland Proceedings and Acts 

of the General Assembly of Maryland, at 557 (William Hand 

Browne ed., 1894); An Act for Settling the Militia ch. XXIV 

(1705), 3 Statutes at Large: Being a Collection of all the Laws 

of Virginia from the First Session of the Legislature, in the 

Year 1619 335, 339 (William W. Hening ed., 1823); An Act 

for the Settling and Better Regulation of the Militia ch. II 

(1723), 4 Statutes at Large: Being a Collection of all the Laws 

of Virginia from the First Session of the Legislature, in the 

Year 1619 118, 121 (William W. Hening ed., 1820). But Amici 

place more weight on those laws than they can rightly bear. 

The fact that legislatures did not always exercise their authority 

to seize the arms of individuals who violated the law does not 

show that legislatures never could do so. Rather, these laws 

underscore legislatures’ power and discretion to determine 

when disarmament is warranted. And, as detailed above, 

Range and Amici’s contention that legislatures lacked the 

authority to disarm non-violent individuals “flatly misreads the 

historical record.” Heller, 554 U.S. at 603.

We believe the Supreme Court’s repeated 

characterization of Second Amendment rights as belonging to 

“law-abiding” citizens supports our conclusion that individuals 

convicted of felony-equivalent crimes, like Range, fall outside 
47

“the people” entitled to keep and bear arms.32 See, e.g., Bruen, 

142 S. Ct. at 2122; Heller, 554 U.S. at 635. As Judge 

Hardiman explained in his Binderup concurrence, Second 

Amendment challenges to § 922(g)(1) “require us to decide 

who count among ‘the people’ entitled to keep and bear arms” 

because “the Founders understood that not everyone possessed 

Second Amendment rights.” 836 F.3d at 357 (Hardiman, J., 

concurring in part); see also Oral Arg. at 49:54 (Amici

discussing which individuals fall outside “the people”). 

32 A concern with which district courts have wrestled when 

assessing the constitutionality of 18 U.S.C. § 922(g)(1) after 

Bruen is that interpreting “the people” in the Second 

Amendment to exclude individuals convicted of offenses 

would deviate from that phrase’s meaning in the First and 

Fourth Amendments. Cf. Collette, 22-CR-141, 2022 WL 

4476790, at *8 (“[T]his Nation has a longstanding tradition of 

exercising its right—as a free society—to exclude from ‘the 

people’ those who squander their rights for crimes and 

violence.”), with Coombes, No. 22-CR-189, 2022 WL 

4367056, at *4 (“[T]he court declines to carve out felons from 

the scope of the Second Amendment’s protection of ‘the 

people.’”). But Justice Stevens’s dissent leveled that very 

criticism against the Heller majority: “[T]he Court limits the 

protected class to ‘law-abiding, responsible citizens.’ But the 

class of persons protected by the First and Fourth Amendments 

is not so limited; for even felons (and presumably irresponsible 

citizens as well) may invoke the protections of those 

constitutional provisions.” 554 U.S. at 644 (Stevens, J., 

dissenting). However, our reasoning applies solely to the 

Second Amendment and does not imply any limitation on the 

rights of individuals convicted of felony and felony-equivalent 

offenses under other provisions of the Constitution.
48

Focusing our inquiry on the meaning of “the people” also 

comports with the Lockean principles that animated Foundingera disarmaments of individuals whose unwillingness to abide 

by communal norms placed them outside political society. Cf. 

Heller, 554 U.S. at 580 (suggesting “the people” refers to “all 

members of the political community” (emphasis added)); 

Cornell, Don’t Know Much About History, supra, at 671 

(contending the right to keep and bear arms was historically 

“limited to those members of the polity who were deemed 

capable of exercising it in a virtuous manner”). 

But even if we were to adopt the contrary view, treating 

Range as covered by “the Second Amendment’s plain text[,]” 

Bruen, 142 S. Ct. at 2126, would “yield the same result,” 

Kanter, 919 F.3d at 452 (Barrett, J., dissenting). Bruen

requires the Government to (1) provide relevant historical 

analogues demonstrating a traditional basis for disarming those 

who commit felonies and felony-equivalent crimes, and (2) 

show that the challenger was convicted of a felony or felonyequivalent offense. Cf. Charles, No. 22-CR-154, 2022 WL 

4913900, at *9 (“[R]eading Bruen robotically would require 

the Government in an as-applied challenge[] to find an analogy 

specific to the crime charged. . . . That’s absurd.”). 
49

The Government has satisfied its burden on both 

prongs. First, as discussed above, our Nation’s tradition of 

firearm regulation permits the disarmament of those who 

committed felony or felony-equivalent offenses. See

Holloway, 948 F.3d at 172 (“We ‘presume the judgment of the 

legislature is correct and treat any crime subject to § 922(g)(1)

as disqualifying unless there is a strong reason to do 

otherwise.’” (quoting Binderup, 836 F.3d at 351)). The 

Government has established as much through its detailed 

discussion of our pre-Bruen jurisprudence concerning the “the 

historical justification for stripping felons [of Second 

Amendment rights], including those convicted of offenses 

meeting the traditional definition of a felony.” Appellees’

Supp. Br. 2–3, 7 (quoting Binderup, 836 F. 3d at 348); see also 

Answering Br. 11–12.

The Government has also shown that Range was 

convicted of a felony or felony-equivalent offense. Range 

pleaded guilty to welfare fraud in violation of 62 Pa. Cons. Stat.

§ 481(a), a misdemeanor punishable by up to five years’ 

imprisonment. Range’s conviction therefore qualifies as a 

felony-equivalent offense under both federal law, 18 U.S.C. 

§ 921(a)(20)(B), and traditional legal principles, see Felony, 

Black’s Law Dictionary (11th ed. 2019). Accordingly, Range 

may be disarmed consistent with the Second Amendment. See 

Answering Br. at 16 (citing Hamilton v. Pallozzi, 848 F.3d 614, 

627 (4th Cir. 2017))

V. Conclusion

We have conducted a historical review as required by 

Bruen and we conclude that Range, by illicitly taking welfare 

money through fraudulent misrepresentation of his income, has 
50

demonstrated a rejection of the interests of the state and of the 

community. He has committed an offense evincing disrespect 

for the rule of law. As such, his disarmament under 18 U.S.C. 

§ 922(g)(1) is consistent with the Nation’s history and tradition 

of firearm regulation. 

For the above reasons, we will affirm the judgment of 

the District Court.