PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 14-4549 & 14-4550

________________

DANIEL BINDERUP

Appellant (No. 14-4550)

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;

DIRECTOR BUREAU OF ALCOHOL TOBACCO

FIREARMS & EXPLOSIVES

Appellants (No. 14-4549)

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 5-13-cv-06750)

District Judge: Honorable James Knoll Gardner

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2

Nos. 15-1975 & 15-1976

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JULIO SUAREZ

Appellant (No. 15-1976)

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;

DIRECTOR BUREAU OF ALCOHOL TOBACCO 

FIREARMS & EXPLOSIVES

Appellants (No. 15-1975)

________________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-14-cv-00968)

District Judge: Honorable William W. Caldwell

________________

Argued June 1, 2016

Before: McKEE, Chief Judge, AMBRO, FUENTES*, 

SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, 

GREENAWAY, Jr., VANASKIE, SHWARTZ, 

 * Judges Nygaard and Roth sat for the consolidated 

argument but participated as members of the en banc Court 
3

KRAUSE, RESTREPO, NYGAARD*

,

and ROTH*, Circuit Judges

(Opinion filed: September 7, 2016)

Benjamin C. Mizer, Esquire

 Principal Deputy Assistant Attorney General

Zane D. Memeger, Esquire

 United States Attorney

Mark B. Stern, Esquire

Michael S. Raab, Esquire

Patrick Nemeroff, Esquire (Argued)

Abby C. Wright, Esquire

United States Department of Justice, Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellants/Cross-Appellees

Attorney General United States of America;

Director Bureau of Alcohol Tobacco Firearms & 

Explosives

 

only in Nos. 14-4549 and 14-4550 pursuant to 3d Cir. I.O.P. 

9.6.4. Judge Sloviter participated in the panel argument and 

conference in Nos. 15-1975 and 15-1976, but assumed 

inactive status on April 4, 2016, before rehearing en banc and 

the filing of this opinion. Judge Fuentes assumed senior status 

on July 18, 2016, after rehearing en banc but before the filing 

of this opinion.
4

Alan Gura, Esquire (Argued)

Gura & Possessky, PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

Douglas Gould, Esquire

925 Glenbrook Avenue

Bryn Mawr, PA 19010

Counsel for Appellees/Cross-Appellants

Daniel Binderup, Julio Suarez

Stefan B. Tahmassebi, Esquire

National Rifle Association of America

11250 Waples Mill Road

Fairfax, VA 22309

Amicus Curiae Counsel

National Rifle Association of America

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge, announced the judgments of the 

Court and delivered the opinion for a unanimous Court with 

respect to Parts I and II, an opinion with respect to Parts III.A, 

III.B, III.C.1, III.C.2, and III.C.3.a, in which FUENTES,

SMITH, GREENAWAY, Jr., VANASKIE, KRAUSE, and 

ROTH, Circuit Judges, joined, and an opinion with respect to 

Parts III.C.3.b, III.D, and IV, in which SMITH and

GREENAWAY, Jr., Circuit Judges, joined. FUENTES, 

Circuit Judge, filed an opinion concurring in part, dissenting 

in part, and dissenting from the judgments, in which McKEE, 
5

Chief Judge, VANASKIE, SHWARTZ, KRAUSE, 

RESTREPO, and ROTH, Circuit Judges, joined. 

HARDIMAN, Circuit Judge, filed an opinion concurring in

part and concurring in the judgments, in which FISHER, 

CHAGARES, JORDAN, and NYGAARD, Circuit Judges, 

joined. 

TABLE OF CONTENTS

I. Background .........................................................................7

II. The Challengers’ Statutory Argument.............................10

III. The Challengers’ Constitutional Argument ...................13

A. The Second Amendment .............................................13

B. The Framework for As-Applied Second Amendment 

Challenges....................................................................18

C. Step One of the Marzzarella Framework ....................22

1. The Challengers Presumptively Lack Second 

Amendment Rights..................................................22

2. The Traditional Justification for Denying Felons the 

Right to Arms..........................................................23

3. The Challengers’ Circumstances..............................26

a. Distinguishing the Historically Barred Class.......26

b. Application to the Challengers.............................28

D. Step Two of the Marzzarella Framework ...................34

IV. Conclusion......................................................................40
6

Federal law generally prohibits the possession of 

firearms by any person convicted in any court of a “crime 

punishable by imprisonment for a term exceeding one year.”

18 U.S.C. § 922(g)(1). Excluded from the prohibition is “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.” Id. § 921(a)(20)(B). And there is also an 

exemption for “[a]ny conviction which has been expunged, or 

set aside or for which a person has been pardoned or has had 

civil rights restored,” where the grant of relief does not 

expressly preserve the firearms bar. Id. § 921(a)(20).

In United States v. Marzzarella we adopted a 

framework for deciding facial and as-applied Second 

Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in 

United States v. Barton we held that the prohibition of 

§ 922(g)(1) does not violate the Second Amendment on its 

face, but we stated that it remains subject to as-applied 

constitutional challenges. 633 F.3d 168 (3d Cir. 2011). 

Before us are two such challenges. In deciding them, 

we determine how a criminal law offender may rebut the 

presumption that he lacks Second Amendment rights. In 

particular, a majority of the Court concludes that Marzzarella, 

whose two-step test we reaffirm today, drives the analysis.1

 1 Parts III.A–C.3.a preserve the Marzzarella

framework for deciding Second Amendment challenges and 

overrule aspects of Barton that are inconsistent with it. Seven 

Judges join those Parts expressly. Chief Judge McKee and 

Judges Shwartz and Restrepo, who join Judge Fuentes’s 

opinion, agree that Marzzarella controls the Second 

Amendment analysis, but do not join any of Part III because 

they reject the notion that the Marzzarella framework can be 
7

Meanwhile, a separate majority holds that the two as-applied 

challenges before us succeed. Part IV of this opinion sets out

how, for purposes of future cases, to make sense of our 

fractured vote. 

I. Background

In 1996 Daniel Binderup began a consensual sexual 

relationship with a 17-year-old female employee at his 

bakery. Binderup was 41 years old at the time and was aware 

that his employee was a minor, though she was over the legal 

age of consent in Pennsylvania (16). Two years later, 

Binderup pled guilty in a Pennsylvania state court to 

corrupting a minor, a misdemeanor subject to possible 

imprisonment for up to five years. 18 Pa. Cons. Stat. 

§§ 6301(a)(1)(i), 1104. Despite this, Binderup’s sentence was 

the colloquial slap on the wrist: probation (three years) and a 

$300 fine plus court costs and restitution. His criminal record

shows no subsequent offenses.

In 1990 police stopped Julio Suarez on suspicion of 

driving while intoxicated. During the stop, police noticed that 

Suarez was carrying a .357 Magnum handgun, as well as two 

“speed loaders” (devices that allow one to load all chambers 

of a revolver mechanically rather than inserting bullets oneby-one). He had no permit for the gun. He later pled guilty in 

a Maryland state court to unlawfully carrying a handgun 

without a license, a misdemeanor subject to possible

imprisonment for “not less than 30 days and not [more than]

three years or a fine of not less than $250 and not [more than]

$2,500 or both.” Md. Code Ann. art. 27, § 36B(b) (1990) 

(now codified at Md. Code Ann. Crim. Law § 4-203). Suarez

 

reconciled with any aspect of Barton’s as-applied Second 

Amendment analysis, which they would overrule entirely.
8

nonetheless received a suspended sentence of 180 days’ 

imprisonment and a $500 fine, followed by a year of 

probation that he completed successfully. Eight years later, he

was convicted again in a Maryland state court, this time for 

the state-law misdemeanor of driving under the influence of 

alcohol. Only the first of the convictions was subject to

§ 922(g)(1). Suarez now lives in Pennsylvania and since 1998 

has led a life free of run-ins with the law. He holds a “Secret” 

federal government security clearance in connection with his 

job as a consultant for a government contractor. 

Pennsylvania law disqualified Binderup and Suarez

(collectively, the “Challengers”) from possessing firearms 

due to their convictions, but in 2009 they successfully 

petitioned the Pennsylvania courts to remove that prohibition. 

Federal law, however, continues to bar them from possessing 

firearms because their convictions have not been expunged or 

set aside, they have not been pardoned, and their civil rights 

have not been restored. See 18 U.S.C. § 921(a)(20); Logan v. 

United States, 552 U.S. 23, 37 (2007). Nor has the Attorney 

General granted them relief under 18 U.S.C. § 925(c), which 

allows her to remove the prohibition on a case-by-case basis

“if it is established to [her] satisfaction” that a barred 

individual “will not be likely to act in a manner dangerous to 

public safety and that the granting of the relief would not be 

contrary to the public interest.”

Binderup and Suarez want to obtain guns to defend 

themselves and their families within their homes, but they 

have not attempted to do so for fear of violating § 922(g)(1). 

As a result, each filed a complaint in federal District Court 

(Binderup in the Eastern District of Pennsylvania, Suarez in 

the Middle District of Pennsylvania) seeking declaratory and 

injunctive relief. They claim as a matter of statutory 

construction that § 922(g)(1) does not apply to their 

convictions and, if it does, the statute is unconstitutional as 
9

applied. The Government opposed the lawsuits, and the 

parties in both cases filed cross-motions for summary 

judgment. 

The District Courts rejected the Challengers’ statutory 

argument but held that § 922(g)(1) is unconstitutional as 

applied. The United States District Court for the Eastern 

District of Pennsylvania ruled that § 922(g)(1) is 

unconstitutional as applied to Binderup because he 

“distinguishe[d] himself from those individuals traditionally 

disarmed as the result of prior criminal conduct and 

demonstrate[d] that he poses no greater threat of future 

violent criminal activity than the average law-abiding 

citizen.” Binderup v. Holder, No. 13-cv-6750, 2014 WL 

4764424, at *1 (E.D. Pa. Sept. 25, 2014). The Court did not 

analyze the constitutionality of § 922(g)(1) under any form of 

means-ends scrutiny, meaning it did not evaluate the law to 

assess whether its purpose—the end sought—matches 

appropriately the means chosen to achieve it. Id. at *20–21. 

Depending on the importance of the rights involved and the 

nature of the burden on them, a law’s purpose may need to be 

only legitimate and the means to achieve it rational (called 

rational basis scrutiny); the purpose may need to be important 

and the means to achieve it substantially related (called 

intermediate scrutiny); or the purpose may need to be 

compelling and the means to achieve it narrowly tailored, that 

is, the least restrictive (called strict scrutiny). The latter two 

tests we refer to collectively as heightened scrutiny to 

distinguish them from the easily met rational basis test.

The United States District Court for the Middle 

District of Pennsylvania applied “a two[-]prong test for 

Second Amendment challenges” derived from our case law. 

Suarez v. Holder, --- F. Supp. 3d ----, No. 1:14-CV-968, 2015 

WL 685889, at *6–7 (M.D. Pa. Feb. 18, 2015). It found first 

that Suarez has Second Amendment rights notwithstanding 
10

his 1990 conviction because he demonstrated that “he is no 

more dangerous than a typical law-abiding citizen.” Id. at 

*10. Then the Court applied means-ends scrutiny (in that 

case, strict scrutiny) and determined that § 922(g)(1) is 

unconstitutional as applied to him due to the severity of the 

burden it imposes. Id. at *7 & n.9. 

The Government appealed the summary judgments, 

and the Challengers’ cross-appealed the District Courts’ 

interpretations of the dispossession statute. The District 

Courts had jurisdiction under 28 U.S.C. §§ 1331, 1343, 1346, 

2201, and 2202. We have appellate jurisdiction under 28 

U.S.C. § 1292(a)(1).

Separate panels heard the appeals, and the Court sua 

sponte consolidated them for rehearing en banc. Our review 

is plenary. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 

158 (3d Cir. 2003).

II. The Challengers’ Statutory Argument

Section 922(g)(1), as noted, does not cover state 

misdemeanors “punishable by a term of imprisonment of two 

years or less.” 18 U.S.C. § 921(a)(20)(B). The Challengers 

argue that the exception includes any state misdemeanor that, 

like theirs, could have been punished by less than two years’ 

imprisonment. 

We disagree. The exception in § 921(a)(20)(B) covers 

any crime that cannot be punished by more than two years’ 

imprisonment. It does not cover any crime that can be 

punished by more than two years in prison. In other words, 

§ 921(a)(20)(B)’s use of “punishable by” means “subject to a 

maximum penalty of.” Although we have never explicitly 

defined it this way, we have at least twice relied on that 

understanding in interpreting the relationship between 
11

§ 921(a)(20)(B) and § 922(g)(1). See United States v. Essig, 

10 F.3d 968, 969–71 (3d Cir. 1993) (relying on an 

understanding of “punishable” that refers to whether the 

maximum potential sentence for a state misdemeanor exceeds 

two years, not whether a lesser sentence might be imposed); 

United States v. Schoolcraft, 879 F.2d 64, 69–70 (3d Cir. 

1989) (explaining that a “misdemeanor punishable [by] up to

seven years in prison” was “not a misdemeanor subject to a 

sentence of two years or less”). The D.C. Circuit’s opinion in

Schrader v. Holder supports our decision, as it distinguishes 

crimes carrying a maximum term of imprisonment of more 

than two years from those “punishable by a term of 

imprisonment of two years or less” under § 921(a)(20)(B). 

704 F.3d 980, 986 (D.C. Cir. 2013). And the Supreme Court 

drew a similar distinction in Logan. See 552 U.S. at 34

(“[Section] 921(a)(20)(B) . . . places within [§ 922(g)(1)’s] 

reach state misdemeanor convictions punishable by more than 

two years’ imprisonment.” (emphasis added)). Although this

language is a dictum, “we should not idly ignore” its inclusion 

in the Supreme Court’s thorough discussion of 

§ 921(a)(20)(B). In re McDonald, 205 F.3d 606, 612 (3d Cir. 

2000).

Even if we were writing on a blank slate, we would 

reject the Challengers’ interpretation. When considering a 

crime’s potential punishment, we ordinarily refer only to the 

maximum punishment a court may impose. As the District

Court in Suarez perceptively observed, when a crime has 

maximum and minimum possible punishments, we describe it 

as being “punishable” by that specific range; and when a 

crime references only a maximum punishment, “we ordinarily 

identify only the upper boundary” of that range, as “[a]ll 

lower possible terms of imprisonment are included by 

implication.” 2015 WL 685889, at *3. That is why we would 

not describe a crime carrying a specified term of 

imprisonment of up to three years as one “punishable by a 
12

term of imprisonment of two years or less.” By contrast, a 

misdemeanor carrying a ceiling of 18 months’ imprisonment 

would properly be described in the criminal law context as a 

crime “punishable by a term of imprisonment of two years or 

less” and on its face would not trigger the bar on gun 

possession. Accordingly, “subject to a maximum possible 

penalty of” is the best reading of the phrase “punishable by” 

as used in § 921(a)(20)(B). 

Our interpretation also makes sense in light of similar 

language in the United States Sentencing Guidelines. They 

provide three distinct grades of probation and supervised 

release violations—Grades A, B, and C—with Grade A 

violations treated most severely and Grade C least severely. 

See U.S.S.G. §§ 7B1.1(a), 7B1.4(a). The Challengers’ 

interpretation of the phrase “punishable by” would erode 

those distinctions. Since Grade C applies only to offenses 

“punishable by a term of imprisonment of one year or less,” 

U.S.S.G. § 7B1.1(a)(3), the Challengers’ interpretation would 

render offenses punishable by more than a year (Grade B), as 

well as even more serious offenses described as Grade A,

eligible for Grade C treatment. This would be an absurd 

result.

In a last-ditch effort, the Challengers argue that 

§ 921(a)(20)(B)’s use of “punishable” merits application of 

the rule of lenity (that ambiguous criminal laws be construed

in favor of defendants) or the constitutional avoidance 

doctrine (that ambiguous statutory language be construed to 

avoid serious constitutional doubts). Both of these principles

require ambiguity in the statute. See Voisine v. United States, 

579 U.S. ___, 136 S. Ct. 2272, 2282 n.6 (2016). As there isn’t 

any here, they give no plausible defense. 

In sum, the Challengers’ argument that their

convictions fall within § 921(a)(20)(B)’s exception to 
13

§ 922(g)(1) has no traction. Their misdemeanor convictions

were punishable by more than two years’ imprisonment. 

Hence they cannot seek refuge in § 921(a)(20)(B) and are

subject to the bar of § 922(g)(1).

III. The Challengers’ Constitutional Argument

A. The Second Amendment

The Challengers contend that, notwithstanding how we 

rule on their statutory argument, § 922(g)(1) is 

unconstitutional as applied to them. The Second Amendment

states: “A well regulated Militia, being necessary to the 

security of a free State, the right of the people to keep and 

bear Arms, shall not be infringed.” U.S. Const. amend. II. In 

District of Columbia v. Heller, the Supreme Court invalidated 

a law that “totally ban[ned] handgun possession in the home”

and “require[d] that any lawful firearm in the home be 

disassembled or bound by a trigger lock at all times, 

rendering it inoperable.” 554 U.S. 570, 628 (2008). In so 

doing, the Court held the Second Amendment protects an 

individual’s right to possess a firearm “unconnected with 

militia service.” Id. at 582. At the “core” of the Second 

Amendment is the right of “law-abiding, responsible citizens 

to use arms in defense of hearth and home.” Id. at 634–35; 

Barton, 633 F.3d at 170–71; Marzzarella, 614 F.3d at 89. 

Two years after Heller, in McDonald v. City of Chicago, the 

Court held that the Fourteenth Amendment “incorporates the 

Second Amendment right recognized in Heller” because the 

right is “fundamental” to “our system of ordered liberty.” 561 

U.S. 742, 778, 791 (2010).

Although the Second Amendment guarantees an 

individual right, it is “not unlimited.” Heller, 554 U.S. at 626; 

see United States v. Huitron-Guizar, 678 F.3d 1164, 1166 

(10th Cir. 2012); Eugene Volokh, Implementing the Right to 
14

Keep and Bear Arms for Self-Defense: An Analytical 

Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 

1443 (2009).

2 Heller catalogued a non-exhaustive list of 

“presumptively lawful regulatory measures” that have 

historically constrained the scope of the right. 554 U.S. at 

626–27 & n.26; see Marzzarella, 614 F.3d at 91 (treating the 

“presumptively lawful regulatory measures” listed in Heller

as “exceptions to the right to bear arms”). They include, but 

are not limited to, “longstanding prohibitions on the 

possession of firearms by felons and the mentally ill, [] laws 

forbidding the carrying of firearms in sensitive places such as 

schools and government buildings, [and] laws imposing 

conditions and qualifications on the commercial sale of 

arms.” Heller, 554 U.S. at 626–27; see McDonald, 561 U.S. 

at 786. These measures comport with the Second Amendment 

 2 Professor Volokh’s taxonomy of possible gun 

regulations divides them into 

[(1)]“what” restrictions (such as bans on machine 

guns, so-called “assault weapons,” or unpersonalized 

handguns), [(2)] “who” restrictions (such as bans on 

possession by felons, misdemeanants, noncitizens, or 

[juveniles]), [(3)] “where” restrictions (such as bans on 

carrying in public, in places that serve alcohol, or in 

parks, or bans on possessing [guns] in public housing 

projects), [(4)] “how” restrictions (such as storage 

regulations), [(5)] “when” restrictions (such as waiting 

periods), [(6)] “who knows” regulations (such as 

licensing or registration requirements), and [(7)] taxes 

and other expenses.

Volokh, 56 UCLA L. Rev. at 1443. 
15

because they affect individuals or conduct unprotected by the 

right to keep and bear arms. See Heller, 554 U.S. at 631, 635 

(suggesting that one is “disqualified from the exercise of 

Second Amendment rights” if he is “a felon” or “insane”).

For example, bans on “weapons not typically possessed by 

law-abiding citizens for lawful purposes, such as shortbarreled shotguns,” are permissible because those weapons 

fall outside the historical “scope of the right.” Id. at 625; see 

United States v. One (1) Palmetto State Armory PA-15 

Machinegun Receiver/Frame, Unknown Caliber Serial No. 

LW001804, 822 F.3d 136, 141–44 (3d Cir. 2016); 

Marzzarella, 614 F.3d at 91–93. 

As to cases involving burdens on Second Amendment 

rights, Heller did not announce which level of scrutiny 

applies but cautioned that challenges based on those rights are 

not beaten back by the Government supplying a rational basis 

for limiting them. 554 U.S. at 628 n.27 (“If all that was 

required to overcome the right to keep and bear arms was a 

rational basis, the Second Amendment would be redundant 

with the separate constitutional prohibitions on irrational 

laws, and would have no effect.”).

Some judges—including Judge Hardiman and those

colleagues who join his opinion concurring in the 

judgments—and commentators have interpreted Heller to 

mean that any law barring persons with Second Amendment 

rights from possessing lawful firearms in the home even for 

self-defense is per se unconstitutional; that is, no scrutiny is 

needed. See Hardiman Op. Typescript at 13–19; Heller v. 

District of Columbia, 670 F.3d 1244, 1272–73 (D.C. Cir. 

2011) (Kavanaugh, J., dissenting); Volokh, 56 UCLA L. Rev. 

at 1462; Joseph Blocher, Categoricalism and Balancing in 

First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 

375, 377, 380 (2009); see also United States v. McCane, 573 

F.3d 1037, 1047–50 (10th Cir. 2009) (Tymkovich, J., 
16

concurring). But neither the Supreme Court nor any court of 

appeals has held that laws burdening Second Amendment 

rights evade constitutional scrutiny. Rather, when faced with 

an as-applied Second Amendment challenge, they agree that 

some form of heightened scrutiny is appropriate after it has 

been determined that the law in question burdens protected 

conduct. See, e.g., Marzzarella, 614 F.3d at 97–101 (applying 

intermediate scrutiny and, in the alternative, strict scrutiny to 

§ 922(k)’s prohibition on possession of any firearm with a 

destroyed serial number); United States v. Williams, 616 F.3d 

685, 692–93 (7th Cir. 2010) (applying intermediate scrutiny 

to § 922(g)(1)); United States v. Chovan, 735 F.3d 1127, 

1141–42 (9th Cir. 2013) (same with respect to § 922(g)(9)’s 

disarmament of a domestic-violence misdemeanant); United 

States v. Chester, 628 F.3d 673, 682–83 (4th Cir. 2010) 

(same); United States v. Reese, 627 F.3d 792, 802–05 (10th 

Cir. 2010) (same with respect to § 922(g)(8)’s dispossession 

of certain persons subject to a domestic restraining order);

Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308, 326–29 

(6th Cir. 2014) (applying strict scrutiny to § 922(g)(4)’s 

dispossession of any person “who has been committed to a 

mental institution”), reh’g en banc granted, opinion vacated

(Apr. 21, 2015).

That individuals with Second Amendment rights may 

nonetheless be denied possession of a firearm is hardly 

illogical. It is no different than saying that the Government 

may prevent an individual with First Amendment rights from 

engaging in First Amendment conduct—even conduct at the 

core of the First Amendment—if it makes the showing

necessary to surmount heightened scrutiny. See, e.g., FEC v. 

Wis. Right to Life, 551 U.S. 449, 464–65 (2007) (applying 

strict scrutiny to a statute prohibiting political speech at the 

core of the First Amendment); United Pub. Workers of Am. v. 

Mitchell, 330 U.S. 75, 102–03 (1947) (upholding the 

constitutionality of prohibitions on certain political activities 
17

by federal employees notwithstanding the First Amendment).

Thus burdens on Second Amendment rights are subject to 

scrutiny in much the way that burdens on First Amendment 

rights are. Drake v. Filko, 724 F.3d 426, 434–36 (3d Cir. 

2013); see NRA Amicus Br. at 13–15 (asserting that burdens 

on core Second Amendment rights should be subject to strict 

scrutiny). Far from subjecting the Second Amendment to an 

“entirely different body of rules than the other Bill of Rights 

guarantees,” McDonald, 561 U.S. at 780 (plurality opinion), 

this view uses “the structure of First Amendment doctrine [to] 

inform our analysis of the Second Amendment,” Marzzarella, 

614 F.3d at 89 n.4; see id. (“Heller itself repeatedly invokes 

the First Amendment in establishing principles governing the 

Second Amendment.”).

Even if a law that “completely eviscerates the Second 

Amendment right” would be per se unconstitutional under 

Heller, Hardiman Op. Typescript at 18, § 922(g)(1) is no such 

law. Notwithstanding that provision (and as already noted),

persons convicted of disqualifying offenses may under some 

circumstances possess handguns if (1) their convictions are 

expunged or set aside, (2) they receive pardons, or (3) they 

have their civil rights restored. 18 U.S.C. § 921(a)(20). And 

were Congress to fund 18 U.S.C. § 925(c), they could ask the

Attorney General to lift the ban in their particular cases.

Though some of these statutory avenues for relief are closed 

to Binderup and Suarez, see infra Part III.D, the remaining 

opportunities for them to overcome the ban contrast starkly 

with the District of Columbia law in Heller that made it a 

crime to carry an unregistered firearm and prohibited entirely

the registration of handguns by individuals; there was nothing 

Mr. Heller could do to possess a handgun lawfully while 

outside his job as a District of Columbia special police officer 

guarding the Federal Judicial Center (in other words, he 

guarded judges). See 554 U.S. at 574 (citing D.C. Code §§ 7-

2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001)); Parker 
18

v. District of Columbia, 478 F.3d 370, 373–74 (D.C. Cir. 

2007); cf. United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 

2010) (en banc) (noting that disarmament under § 922(g)(9) is 

ordinarily not “perpetual” because of exceptions similar to 

those under § 922(g)(1)); Chovan, 735 F.3d at 1138 (same).

To say that § 922(g)(1) is per se unconstitutional as 

applied to anyone with Second Amendment rights 

notwithstanding the statute’s escape hatches is a bridge too 

far. For starters, that would condemn without exception all 

laws and regulations containing preconditions for the 

possession of firearms by individuals with Second 

Amendment rights. By that reasoning, any law prohibiting an 

individual from possessing a handgun unless he passes a 

physical examination (to show he is capable of handling a 

firearm safely) or completes firearm training (to show he 

knows how to handle a firearm safely) would similarly be per 

se unconstitutional, even if it is the least restrictive means of 

achieving a compelling government interest. There is no 

precedent for crippling the Government’s ability to regulate

gun ownership in this manner. And to guarantee absolutely 

the ability to keep and bear arms even in cases where 

disarmament would survive heightened scrutiny would be a 

radical departure from our post-Heller jurisprudence and risk 

undermining many commonplace constitutional gun 

regulations.

B. The Framework for As-Applied Second 

Amendment Challenges

Unlike a facial challenge, an as-applied challenge 

“does not contend that a law is unconstitutional as written but 

that its application to a particular person under particular 

circumstances deprived that person of a constitutional right.” 

United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011)

(quoting United States v. Marcavage, 609 F.3d 264, 273 (3d 
19

Cir. 2010)); see Ayotte v. Planned Parenthood of N. New 

England, 546 U.S. 320, 329 (2006) (“It is axiomatic that a 

statute may be invalid as applied to one state of facts and yet 

valid as applied to another.” (internal quotation marks 

omitted)). Accordingly, our review of Binderup’s and 

Suarez’s as-applied challenges requires us to consider 

whether their particular circumstances remove them from the 

constitutional sweep of § 922(g)(1).

Two of our precedents—Marzzarella and Barton—

have guided how we approach as-applied Second Amendment 

challenges. The former involved an as-applied challenge to 18 

U.S.C. § 922(k), which bars the possession of any firearm

with an obliterated serial number. It derived from Heller a 

“two-pronged approach to Second Amendment challenges” to 

firearm restrictions. 614 F.3d at 89. We first consider 

“whether the challenged law imposes a burden on conduct 

falling within the scope of the Second Amendment’s 

guarantee.” Id. If not, the challenged law must stand. But if 

the law burdens protected conduct, the proper course is to 

“evaluate the law under some form of means-end scrutiny,” 

id., that form in Marzzarella being intermediate scrutiny, id.

at 97. “If the law passes muster under [the] standard 

[applied], it is constitutional. If it fails, it is invalid.” Id. at 89.

As to § 922(k), we held that the law withstood intermediate 

scrutiny “even if it burden[ed] protected conduct” by fitting 

reasonably with the important “law enforcement interest in 

enabling the tracing of weapons via their serial numbers.” Id.

at 95, 98. (We also noted in a dictum that the law would 

survive strict scrutiny, were that the test, because the 

provision serves a compelling interest through the leastrestrictive means. Id. at 99–101.)

Nearly every court of appeals has cited Marzzarella

favorably. See, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v. 

Cuomo, 804 F.3d 242, 254 n.49 (2d Cir. 2015); Chovan, 735 
20

F.3d at 1136–37; Nat’l Rifle Ass’n of Am., Inc. v. Bureau of 

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 

194–96 (5th Cir. 2012); GeorgiaCarry.org, Inc. v. Georgia, 

687 F.3d 1244, 1260 n.34 (11th Cir. 2012); United States v. 

Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller, 670 F.3d 

at 1252–53; Ezell v. City of Chicago, 651 F.3d 684, 701–04 

(7th Cir. 2011); Chester, 628 F.3d at 680–83; Reese, 627 F.3d 

at 800–05. Indeed, it has escaped disparagement by any 

circuit court.

A year after Marzzarella we decided Barton, which 

involved a felon convicted under the provision now before 

us—§ 922(g)(1). Barton raised facial and as-applied Second 

Amendment challenges to the firearm ban. After dispensing 

with his facial challenge and confirming the availability of asapplied challenges under the Second Amendment, we ruled 

that “the common law right to keep and bear arms did not 

extend to those who were likely to commit violent offenses.” 

633 F.3d at 173. Because Barton’s prior convictions for 

possession of cocaine with intent to distribute and for receipt 

of a stolen firearm (as well as his illegal post-conviction sale 

of a firearm with an obliterated serial number) were “closely 

related to violent crime,” we concluded that he lacked Second 

Amendment rights. Id. at 174. Put another way, Barton did 

not present “facts about himself and his background that 

distinguish[ed] his circumstances from those of persons 

historically barred from Second Amendment protections,” id.,

so he was “disqualified from the exercise of Second 

Amendment rights,” id. at 174 (quoting Heller, 554 U.S. at 

635), and his as-applied challenge could not succeed. 

Read together, Marzzarella and Barton lay out a 

framework for deciding as-applied challenges to gun 

regulations. At step one of the Marzzarella decision tree, a 

challenger must prove, per Barton, that a presumptively 

lawful regulation burdens his Second Amendment rights. This 
21

requires a challenger to clear two hurdles: he must (1) 

identify the traditional justifications for excluding from 

Second Amendment protections the class of which he appears 

to be a member, id. at 173, and then (2) present facts about 

himself and his background that distinguish his circumstances 

from those of persons in the historically barred class, id. at 

174.

No doubt a challenger cannot prevail merely on his 

say-so. Courts must find the facts to determine whether he has 

adequately distinguished his circumstances from those of 

persons historically excluded from Second Amendment 

protections. Not only is the burden on the challenger to rebut 

the presumptive lawfulness of the exclusion at Marzzarella’s 

step one, but the challenger’s showing must also be strong. 

That’s no small task. And in cases where a statute by its terms 

only burdens matters (e.g., individuals, conduct, or weapons)

outside the scope of the right to arms, it is an impossible one. 

But if the challenger succeeds at step one, the burden shifts to 

the Government to demonstrate that the regulation satisfies 

some form of heightened scrutiny, discussed further below, at 

step two of the Marzzarella analysis. 

The Challengers, the District Court in Binderup, and 

some of our colleagues claim that Marzzarella and Barton set 

standards for different types of as-applied Second 

Amendment challenges and that only Barton controls 

challenges to § 922(g)(1); Marzzarella has no role in the 

analysis. Our view is that, at least in pertinent part, each 

complements the other for an as-applied Second Amendment 

challenge to a presumptively lawful regulatory measure like 

§ 922(g)(1). Barton identifies the two hurdles that an 

individual presumed to lack Second Amendment rights must 

overcome to rebut the presumption at step one of the 
22

Marzzarella framework.3 Rebutting it permits testing the law 

or regulation under heightened scrutiny at step two. With this 

understanding, Marzzarella and Barton are neither wholly 

distinct nor incompatible.

 C. Step One of the Marzzarella Framework

1. The Challengers Presumptively Lack Second 

Amendment Rights

Heller teaches that “longstanding prohibitions on the 

possession of firearms by felons” are “presumptively lawful.”

554 U.S. at 626 & 627 n.26. Traditionally, “felons” are 

people who have been convicted of any crime “that is 

punishable by death or imprisonment for more than one 

year.” 1 Wayne R. LaFave, Substantive Criminal Law § 1.6 

(2d ed. 2015); cf. Carachuri-Rosendo v. Holder, 560 U.S. 

563, 567 (2010) (quoting 18 U.S.C. § 3559(a)).

Section 922(g)(1) bars the possession of firearms by 

anyone convicted of “a crime punishable by imprisonment for 

a term exceeding one year.” This means that its prohibition 

extends to anyone convicted of a crime meeting the 

 3 Though Barton clarifies the types of showings that a 

challenger must make at step one of the Marzzarella

framework, it defines too narrowly the traditional justification 

for why a criminal conviction may destroy the right to arms 

(i.e., it limits felon disarmament to only those criminals likely 

to commit a violent crime in the future) and, by extension, 

defines too broadly the class of offenders who may bring 

successful as-applied Second Amendment challenges to 

§ 922(g)(1) (i.e., it allows people convicted of serious crimes 

to regain their right to arms). See infra Parts III.C.1–3.a.
23

traditional definition of a felony, though Congress excluded 

anyone convicted of a “State offense classified by the laws of 

the State as a misdemeanor” unless it is punishable by more 

than two years’ imprisonment. 18 U.S.C. § 921(a)(20)(B).

Binderup and Suarez were each convicted of a 

misdemeanor subject to § 922(g)(1): Binderup’s was 

punishable by up to five years’ imprisonment; Suarez’s by up 

to three years in prison. The Pennsylvania and Maryland 

legislatures classify their respective offenses as 

misdemeanors. However, based on their maximum possible 

punishments, they meet the traditional definition of a felony,

and Congress treats them as felonies for purposes of 

§ 922(g)(1). As a result, Binderup and Suarez are subject to a 

firearm ban that is, per Heller, “presumptively lawful.” 

2. The Traditional Justification for Denying

Felons the Right to Arms

Turning to the first hurdle of step one, we look to the 

historical justification for stripping felons, including those 

convicted of offenses meeting the traditional definition of a 

felony, of their Second Amendment rights. “[M]ost scholars 

of the Second Amendment agree that the right to bear arms 

was tied to the concept of a virtuous citizenry and that, 

accordingly, the government could disarm ‘unvirtuous 

citizens.’” United States v. Yancey, 621 F.3d 681, 684–85 

(7th Cir. 2010); see, e.g., Saul Cornell & Nathan DeDino, A 

Well Regulated Right: The Early American Origins of Gun 

Control, 73 Fordham L. Rev. 487, 491–92 (2004); Saul 

Cornell, “Don’t Know Much about History”: The Current 

Crisis in Second Amendment Scholarship, 29 N. Ky. L Rev. 

657, 679 (2002); David Yassky, The Second Amendment: 

Structure, History, and Constitutional Change, 99 Mich. L. 

Rev. 588, 626–27 (2000); Glenn Harlan Reynolds, A Critical 

Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 
24

(1995); Don B. Kates, Jr., The Second Amendment: A 

Dialogue, Law & Contemp. Probs., Winter 1986, at 143, 146; 

Don B. Kates, Jr., Handgun Prohibition and the Original 

Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 

266 (1983). Several of our sister circuits endorse the 

“virtuous citizen” justification for excluding felons and felonequivalents from the Second Amendment’s ambit. See, e.g.,

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

2012) (“[F]elons were excluded from the right to arms 

because they were deemed unvirtuous.” (internal quotation 

marks omitted)); Yancey, 621 F.3d at 684–85; United States 

v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (“[T]he right 

to bear arms does not preclude laws disarming . . . unvirtuous 

citizens (i.e., criminals).” (quoting Kates, Jr., 49 Law & 

Contemp Probs. at 146)); United States v. Rene E., 583 F.3d 

8, 15 (1st Cir. 2009) (“In the parlance of the republican 

politics of the time, these limitations were sometimes 

expressed as efforts to disarm the ‘unvirtuous.’”). 

People who have committed or are likely to commit 

“violent offenses”—crimes “in which violence (actual or 

attempted) is an element of the offense,” Skoien, 614 F.3d at

642; see Voisine, 136 S. Ct. at 2280—undoubtedly qualify as 

“unvirtuous citizens” who lack Second Amendment rights. 

Barton, 633 F.3d at 173–74; see United States v. Bena, 664 

F.3d 1180, 1184 (8th Cir. 2011) (recognizing “a common-law 

tradition that the right to bear arms is limited to peaceable or 

virtuous citizens”); C. Kevin Marshall, Why Can’t Martha 

Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 727–

28 (2009). But Heller recognized “longstanding prohibitions

on the possession of firearms by felons,” not just violent 

felons. 554 U.S. at 626. The category of “unvirtuous citizens” 

is thus broader than violent criminals; it covers any person 

who has committed a serious criminal offense, violent or nonviolent. See Skoien, 614 F.3d at 640–41; United States v. 

Everist, 368 F.3d 517, 519 (5th Cir. 2004); Don B. Kates & 
25

Clayton E. Cramer, Second Amendment Limitations & 

Criminological Considerations, 60 Hastings L.J. 1339, 1363–

64 (2009); see also Vongxay, 594 F.3d at 1115 (“[F]elons are 

categorically different from the individuals who have a 

fundamental right to bear arms.”). To the extent Barton

suggests that people who commit serious crimes retain or 

regain their Second Amendment rights if they are not likely to 

commit a violent crime, 633 F.3d at 174, it is overruled. See 

infra Part III.C.3.a.

The view that anyone who commits a serious crime

loses the right to keep and bear arms dates back to our

founding era. “Heller identified . . . as a ‘highly influential’ 

‘precursor’ to the Second Amendment the Address and 

Reasons of Dissent of the Minority of the Convention of the 

State of Pennsylvania to Their Constituents.” Skoien, 614 

F.3d at 640 (quoting Heller, 554 U.S. at 604). That report 

“asserted that citizens have a personal right to bear arms 

‘unless for crimes committed, or real danger of public 

injury.’” Id. (emphasis added) (quoting 2 Bernard Schwartz, 

The Bill of Rights: A Documentary History 662, 665 (1971)). 

“[C]rimes committed”—violent or not—were thus an 

independent ground for exclusion from the right to keep and 

bear arms. And there is reason to believe that felon 

disarmament has roots that are even more ancient. See Kates,

Jr., 82 Mich. L. Rev. at 266 (“Felons simply did not fall 

within the benefits of the common law right to possess 

arms.”).

The takeaway: persons who have committed serious 

crimes forfeit the right to possess firearms much the way they 

“forfeit other civil liberties, including fundamental 

constitutional rights.” Barton, 633 F.3d at 175.
26

 3. The Challengers’ Circumstances 

a. Distinguishing the Historically Barred 

Class

Having identified the traditional justification for 

denying some criminal offenders the right to arms—that they

are “unvirtuous” because they committed serious crimes—we 

turn to how other criminal offenders may distinguish their 

circumstances from those of people who historically lacked 

the right to keep and bear arms. Barton suggests two ways to 

satisfy this second hurdle of step one: the first is that a 

challenger may show that he never lost his Second 

Amendment rights because he was not convicted of a serious 

crime; the second is that a challenger who once lost his 

Second Amendment rights by committing a serious crime 

may regain them if his “crime of conviction is decades-old” 

and a court finds that he “poses no continuing threat to 

society.” 633 F.3d at 174.

We agree with Barton only insofar as it stands for the 

unremarkable proposition that a person who did not commit a 

serious crime retains his Second Amendment rights. Setting 

aside what makes a crime “serious” in the Second 

Amendment context and whether § 922(g)(1) covers any nonserious crimes—issues we address in Part III.C.3.b and on 

which there is disagreement, see Fuentes Op. Typescript at 

19–20—being convicted of a non-serious crime does not 

demonstrate a lack of “virtue” that disqualifies an offender 

from exercising those rights.

But our agreement with Barton ends there. We reject 

its claim that the passage of time or evidence of rehabilitation 

will restore the Second Amendment rights of people who 

committed serious crimes. That view stems from Barton’s 

misplaced focus at Marzzarella’s step one on the probability 
27

of violent recidivism and is inconsistent with the true 

justification for the disarmament of people who commit 

serious crimes: they are “unvirtuous.” See supra Part III.C.2. 

A challenger’s risk of violent recidivism tells us nothing 

about whether he was convicted of a serious crime, and the 

seriousness of the purportedly disqualifying offense is our 

sole focus throughout Marzzarella’s first step.

There is no historical support for the view that the 

passage of time or evidence of rehabilitation can restore

Second Amendment rights that were forfeited. To the extent 

Congress affords such a remedy in 18 U.S.C. § 921(a)(20) or

18 U.S.C. § 925(c), that is a matter of legislative grace; the 

Second Amendment does not require that those who commit 

serious crimes be given an opportunity to regain their right to 

keep and bear arms in that fashion. Indeed, the Supreme 

Court and our Court have recognized in the Second 

Amendment context that the Judicial Branch is not 

“institutionally equipped” to conduct “a neutral, wide-ranging 

investigation” into post-conviction assertions of rehabilitation

or to predict whether particular offenders are likely to commit 

violent crimes in the future. United States v. Bean, 537 U.S. 

71, 77 (2002); see Pontarelli v. U.S. Dep’t of the Treasury, 

285 F.3d 216, 230–31 (3d Cir. 2002) (en banc); cf. S. Rep. 

102-353, at 19 (1992) (doubting that even the Executive 

Branch could feasibly grant individualized exceptions to 

§ 922(g)(1) based on an offender’s supposed rehabilitation 

because doing so is “a very difficult and subjective task” that 

“could have devastating consequences for innocent citizens if 

the wrong decision is made”). 

In short, only the seriousness of the purportedly 

disqualifying offense determines the constitutional sweep of 

statutes like § 922(g)(1) at step one. To the extent Barton

holds that people convicted of serious crimes may regain their 
28

lost Second Amendment rights after not posing a threat to 

society for a period of time, it is overruled.

b. Application to the Challengers

We now consider whether the Challengers have shown 

that their crimes are not serious. As a preliminary matter, we 

note that Judge Fuentes, those colleagues joining his opinion

dissenting from the judgment, and the Government deny the 

possibility of successful as-applied Second Amendment 

challenges to § 922(g)(1). See, e.g., Gov’t Binderup Br. at 14; 

Gov’t Suarez Br. at 15; Fuentes Op. Typescript at 18–40. In 

their view, § 922(g)(1), at least in its current form, is 

constitutional in all its applications because it does not burden 

the Second Amendment rights of felons or felon-equivalents

who, because of their convictions, lack Second Amendment 

rights. Put another way, they believe that all crimes subject to 

§ 922(g)(1) are disqualifying because their maximum possible 

punishments are conclusive proof they are serious.

But that view puts the rabbit in the hat by concluding

that all felons and misdemeanants with potential punishments 

past a certain threshold lack the right to keep and bear arms 

when, despite their maximum possible punishment, some 

offenses may be “so tame and technical as to be insufficient 

to justify the ban.” United States v. Torres-Rosario, 658 F.3d 

110, 113 (1st Cir. 2011). Heller confirms such a showing is 

possible, as it describes prohibitions on the possession of 

firearms by felons as only “presumptively lawful.” 554 U.S. 

at 626–27 & n.26. Unless flagged as irrebutable, 

presumptions are rebuttable. See Barton, 633 F.3d at 173;

Williams, 616 F.3d at 692. Indeed, under the approach of 

Judge Fuentes and those colleagues who join his opinion

dissenting from the judgments, the Government could make 

an end-run around the Second Amendment and undermine the 

right to keep and bear arms in contravention of Heller. A 
29

crime’s maximum possible punishment is “purely a matter of 

legislative prerogative,” Rummel v. Estelle, 445 U.S. 263, 274 

(1980), subject only to “constitutional prohibitions on 

irrational laws,” Heller, 554 U.S. at 628 n.27; see United 

States v. Walker, 473 F.3d 71, 79 (3d Cir. 2007). Yet Heller

teaches that the Government needs more than a rational basis 

“to overcome the right to keep and bear arms.” 554 U.S. at 

628 n.27; see Marzzarella, 614 F.3d at 95–96. Therefore, to 

determine whether the Challengers are shorn of their Second 

Amendment rights, Heller requires us to consider the 

maximum possible punishment but not to defer blindly to it.

At the same time, there are no fixed criteria for 

determining whether crimes are serious enough to destroy 

Second Amendment rights. Unlike the “historically 

unprotected categories of speech” that are First Amendment

exceptions “long familiar to the bar,” United States v. 

Stevens, 559 U.S. 460, 468, 470 (2010), the category of 

serious crimes changes over time as legislative judgments 

regarding virtue evolve. For example, though only a few 

exceedingly serious crimes were “felonies” at early common 

law, by the time of our country’s founding “many new 

felonies were added by English statute.” 1 Wharton’s 

Criminal Law § 17 (15th ed. 2015); see, e.g., 4 William 

Blackstone, Commentaries *18 (“[N]o less than a[ ] hundred 

and sixty [actions] have been declared by act of parliament to 

be felonies without benefit of clergy; or, in other words, to be 

worthy of instant death.”); Francis Bacon, Preparation for the 

Union of Laws of England and Scotland, in 2 The Works of 

Francis Bacon, Lord Chancellor of England 163–64 (1841) 

(listing dozens of felonies, including “[w]here a man stealeth 

certain kinds of hawks” or “invocates wicked spirits”). The 

upshot is that “exclusions need not mirror limits that were on 

the books in 1791” to comport with the Second Amendment. 

Skoien, 614 F.3d at 641. Rather, we will presume the 

judgment of the legislature is correct and treat any crime 
30

subject to § 922(g)(1) as disqualifying unless there is a strong 

reason to do otherwise. 

Here, upon close examination of the Challengers’ 

apparently disqualifying convictions, we conclude that their

offenses were not serious enough to strip them of their 

Second Amendment rights. For starters, though the 

Challengers’ crimes meet the generic definition of a felony 

and Congress’s definition of a felony for purposes of 

§ 922(g)(1), the Pennsylvania and Maryland legislatures 

enacted them as misdemeanors. Misdemeanors are, and 

traditionally have been, considered less serious than felonies. 

See Baldwin v. New York, 399 U.S. 66, 70 (1970);

misdemeanor, Black’s Law Dictionary (10th ed. 2014); 1 

LaFave, Substantive Criminal Law § 1.6. Congress tried to 

ensure that only serious crimes would trigger disarmament 

under § 922(g)(1) by exempting from the ban any state-law 

misdemeanant whose crime was punishable by less than two 

years’ imprisonment. 18 U.S.C. § 921(a)(20)(B). But we 

believe that accommodation still paints with too broad a 

brush, for a state legislature’s classification of an offense as a 

misdemeanor is a powerful expression of its belief that the 

offense is not serious enough to be disqualifying.

This is not to say that state misdemeanors cannot be 

serious. No doubt “some misdemeanors are . . . ‘serious’ 

offenses,” Baldwin, 399 U.S. at 70, and “numerous 

misdemeanors involve conduct more dangerous than many 

felonies,” Tennessee v. Garner, 471 U.S. 1, 14 (1985). See 

Johnson v. United States, 559 U.S. 133, 149–50 (2010) 

(Alito, J., dissenting) (“At common law . . . many very 

serious crimes, such as kidnapping and assault with the intent 

to murder or rape, were categorized as misdemeanors.”). And 

the maximum possible punishment is certainly probative of a 

misdemeanor’s seriousness. But Congress may not overlook 
31

so generally the misdemeanor label, which, in the Second 

Amendment context, is also important. 

Other considerations, however, confirm our belief that 

the Challengers’ crimes were not serious. As explained 

above, violent criminal conduct—meaning a crime “in which 

violence (actual or attempted) is an element of the offense,” 

Skoien, 614 F.3d at 642; see Voisine, 136 S. Ct. at 2280—is

disqualifying. See Part III.C.2. But neither Challenger’s

offense had the use or attempted use of force as an element.4

Though, as explained, it is possible for non-violent crimes to 

be serious, the lack of a violence element is a relevant 

consideration. 

Also important is that each Challenger received a 

minor sentence by any measure: Binderup was sentenced to 

three years’ probation (a condition of which was to avoid 

contact with his employee) and a $300 fine plus court costs 

and restitution, while Suarez received a suspended sentence 

of 180 days’ imprisonment and a $500 fine. That is because

severe punishments are typically reserved for serious crimes. 

 4 Though we look only to a crime’s elements rather 

than to the way it actually was committed, we note as an aside 

that the District Court in Binderup explained that “[t]here is 

simply nothing in the record here which would support a 

reasonable inference that [Binderup] used any violence, force, 

or threat of force to initiate or maintain the sexual relationship 

with his seventeen-year-old employee” or “that he even 

engaged in any violent or threatening conduct.” 2014 WL 

4764424, at *22. Similarly, the District Court in Suarez 

described Suarez’s misdemeanor as “minor and non-violent.”

2015 WL 685889, at *9.
32

Additionally, punishments are selected by judges who have

firsthand knowledge of the facts and circumstances of the 

cases and who likely have the benefit of pre-sentence reports

prepared by trained professionals. With not a single day of 

jail time, the punishments here reflect the sentencing judges’ 

assessment of how minor the violations were. 

Finally, there is no cross-jurisdictional consensus 

regarding the seriousness of the Challengers’ crimes. Some

states treat consensual sexual relationships between 41 and 17 

year olds as serious crimes, see Gov’t Binderup Br. at 17–19 

& n.4, but the vast majority of states do not, see Asaph 

Glosser et al., Statutory Rape: A Guide to State Laws and 

Reporting Requirements 6–7 (Dec. 15, 2004), available at 

https://aspe.hhs.gov/sites/default/files/pdf/75531/report.pdf

(last visited Aug. 25, 2016). Binderup’s conduct arguably 

would have been criminal in a few other states because his 

17-year-old sexual partner was his employee, yet it still 

would have been legal in many states. Similarly, though some

states punish the unlicensed carrying of a concealed weapon

as a serious crime, see Gov’t Suarez Br. at 16-17 n.5, more 

than half prescribe a maximum sentence that does not meet 

the threshold of a traditional felony (more than one year in 

prison) and others do not even require a specific credential to 

carry a concealed weapon, see Thomson Reuters, 50 State 

Survey: Right to Carry a Concealed Weapon (Statutes)

(October 2015); U.S. Gov’t Accountability Off., States’ Laws 

and Requirements for Concealed Carry Permits Vary Across 

Nation 73–74 (2012), available at

http://www.gao.gov/assets/600/592552.pdf (last visited Aug. 

25, 2016); Law Ctr. to Prevent Gun Violence, Concealed 

Weapons Permitting, http://smartgunlaws.org/gunlaws/policy-areas/firearms-in-public-places/concealedweapons-permitting/ (last visited Aug. 25, 2016). Were the 

Challengers unable to show that so many states consider their 

crimes to be non-serious, it would be difficult for them to 
33

carry their burden at step one. But because they have shown 

that there is no consensus regarding the seriousness of their 

crimes, their showing at step one is that much more 

compelling.

5

In sum, the Challengers have carried their burden of 

showing that their misdemeanors were not serious offenses 

despite their maximum possible punishment.6 This leads us to 

 5 Judge Fuentes and those colleagues who join his

opinion dissenting from the judgments caution that this 

approach is not “workable” and “places an extraordinary 

administrative burden on district courts,” Fuentes Op. 

Typescript at 2, 71, but the criteria we use to assess the 

seriousness of a misdemeanor subject to § 922(g)(1)—the 

elements of the offense, the actual sentence, and the state of 

the law—are easily administrable. These objective indications 

of seriousness are well within the ambit of judgment 

exercised daily by judges. Courts are also well suited to the 

task of identifying serious crimes in the Second Amendment 

context, as in other constitutional contexts the Judicial Branch 

is charged with discerning “objective criteria reflecting the 

seriousness with which society regards [an] offense.” 

Baldwin, 399 U.S. at 68; see, e.g., Blanton v. City of North 

Las Vegas, 489 U.S. 538, 543–44 (1989) (Sixth Amendment); 

Welsh v. Wisconsin, 466 U.S. 740, 753 (1985) (Fourth 

Amendment); Smith v. United States, 360 U.S. 1, 9 (1959) 

(Fifth Amendment).

6 Our decision is limited to the cases before us, which 

involve state-law misdemeanants bringing as-applied Second 

Amendment challenges to § 922(g)(1). This is important 

because when a legislature chooses to call a crime a 
34

conclude that Binderup and Suarez have distinguished their 

circumstances from those of persons historically excluded 

from the right to arms. That, in turn, requires the Government 

to meet some form of heightened scrutiny at the second step 

of the Marzzarella framework.

 D. Step Two of the Marzzarella Framework

Next, we consider whether § 922(g)(1) survives 

heightened scrutiny as applied. On this record, it does not. No 

doubt § 922(g)(1) is intended to further the government 

interest of promoting public safety by “preventing armed 

mayhem,” Skoien, 614 F.3d at 642, an interest that is both 

important and compelling. But whether we apply intermediate 

scrutiny or strict scrutiny—and we continue to follow the lead 

of Marzzarella in choosing intermediate scrutiny, 614 F.3d at 

97—the Government bears the burden of proof on the 

appropriateness of the means it employs to further its interest. 

See, e.g., Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 

 

misdemeanor, we have an indication of non-seriousness that 

is lacking when it opts instead to use the felony label. We are 

not confronted with whether an as-applied Second 

Amendment challenge can succeed where the purportedly 

disqualifying offense is considered a felony by the authority 

that created the crime. On the one hand, it is possible to read 

Heller to leave open the possibility, however remote, of a 

successful as-applied challenge by someone convicted of such 

an offense. At the same time, even if that were so, the 

individual’s burden would be extraordinarily high—and 

perhaps even insurmountable. In any event, given that neither 

Challenger fits that description, we need not decide the 

question.
35

469, 480 (1989); Johnson v. California, 543 U.S. 499, 505, 

506 n.1 (2005).

Here the Government falls well short of satisfying its 

burden—even under intermediate scrutiny. The record before 

us consists of evidence about the Challengers’ backgrounds, 

including the time that has passed since they last broke the 

law. It contains no evidence explaining why banning people 

like them (i.e., people who decades ago committed similar 

misdemeanors) from possessing firearms promotes public 

safety. The Government claims that someone like Suarez is 

“particularly likely to misuse firearms” because he belongs to 

a category of “potentially irresponsible persons,” Gov’t 

Suarez Br. at 27–28, and that someone like Binderup is 

“particularly likely to commit additional crimes in the future,” 

Gov’t Binderup Br. at 35. But it must “present some 

meaningful evidence, not mere assertions, to justify its 

predictive [and here conclusory] judgments.” Heller, 670 

F.3d at 1259. In these cases neither the evidence in the record 

nor common sense supports those assertions.

The Government relies on a number of off-point

statistical studies to argue that it is reasonable to disarm the 

Challengers because of their convictions. It notes that felons 

generally commit violent crimes more frequently than nonfelons, see Bureau of Justice Statistics, U.S. Dep’t of Justice, 

Recidivism of Prisoners Released in 1994, at 6 (2002), and 

that the “denial of handgun purchases [to convicted felons] is 

associated with a reduction in risk for later criminal activity 

of approximately 20–30%,” Mona A. Wright et al., 

Effectiveness of Denial of Handgun Purchase to Persons 

Believed to Be at High Risk for Firearm Violence, 89 Am. J. 

of Pub. Health 88, 89 (1999). But these studies estimate the 

likelihood that incarcerated felons will reoffend after their 

release from prison. The Challengers were not incarcerated 

and are not felons under state law; they are state-law 
36

misdemeanants who spent no time in jail. The Government 

cannot draw any reasonable conclusions about the risk posed 

by their possession of firearms from such obviously 

distinguishable studies. It claims that even criminals placed 

on probation rather than sent to prison have a heightened risk 

of recidivism, but the study it cites found that, “[g]enerally, 

the risk of recidivism was highest during the first year after 

admission to probation,” and that “[a]s released prisoners and 

probationers age, they tend to exhibit lower rates of 

recidivism.” Iowa Div. of Crim. & Juvenile Justice Planning, 

Recidivism Among Iowa Probationers 2 (July 2005), 

available at http://publications.iowa.gov/15032/ (last visited 

Aug. 25, 2016). Binderup’s and Suarez’s offenses are 20 and 

26 years old, respectively, so that study tells us little, if 

anything, about the risk of recidivism in these cases.

7

 7 As discussed, evidence of how individuals have lived 

their lives since committing crimes is irrelevant under 

Marrzarella’s first step, as there is no historical support for 

rehabilitation being a consideration in determining whether 

someone has Second Amendment rights. However, at step 

two of the analysis the question is no longer whether the 

Challengers fall within the Second Amendment’s protections. 

They do. Our task now is to decide whether the Government 

can disarm them despite these protections. Whereas our 

obligation at step one is to draw constitutional lines—

separating those who have Second Amendment rights from 

those who do not—at step two we must ask whether the 

Government has made a strong enough case for disarming a 

person found after step one to be eligible to assert an asapplied challenge. This turns in part on the likelihood that the 

Challengers will commit crimes in the future. Thus, under the 
37

The Government also claims to have studies of 

particular relevance to each Challenger’s situation, but this 

argument too misses the mark. As to Binderup, the 

Government cites studies from several states that it contends

would classify him as a sex offender on account of his 

criminal conduct. See Gov’t Binderup Br. at 33–34; see also 

id. at 28 n.8 (citing a Pennsylvania study showing that 

individuals convicted of certain sexual offenses have a 50–

60% chance of rearrest within three years of release from 

prison). Binderup unsurprisingly disputes that label. We need 

not delve into the weeds here, as, much like the more general 

studies discussed above, the sex-offender specific studies 

focus on people who were incarcerated. It is not helpful to 

draw inferences about the usefulness of disarming Binderup 

from those off-point studies.

As to Suarez, the Government emphasizes that persons 

arrested for “weapons offenses” are rearrested at high rates, 

Gov’t Suarez Br. at 30 & nn.10–11 (citing studies), and relies 

on a study indicating that California handgun purchasers in 

1977 “who had prior convictions for nonviolent firearmrelated offenses such as carrying concealed firearms in public, 

but none for violent offenses,” were more likely than people 

with no criminal histories to be charged later with a violent 

crime, see Garen J. Wintemute et al., Prior Misdemeanor 

Convictions as a Risk Factor for Later Violent and FirearmRelated Criminal Activity Among Authorized Purchasers of 

Handguns, 280 Am. Med. Ass’n 2083, 2086 (1998). Yet that 

study only addresses the risk of recidivism within 15 years of 

a conviction for an unspecified “nonviolent firearm-related 

offense[].” Id. at 2086. Common sense tells us that recidivism 

 

right circumstances the passage of time since a conviction can 

be a relevant consideration in assessing recidivism risks. 
38

rates would change with the passage of an additional 11 years 

(Suarez was convicted 26 years ago) and vary based on the 

circumstances of the prior conviction. 

This is not to say that empirical studies are irrelevant 

to as-applied Second Amendment challenges. Parties may use 

statistics to show that people who commit certain crimes have 

a high (or low) likelihood of recidivism that warrants (or does 

not warrant) disarmament, even decades after a conviction. In 

these cases, empirical studies could have demonstrated an

appropriate fit between the Challengers’ total disarmament 

and the promotion of public safety if they contained reliable 

statistical evidence that people with the Challengers’ 

backgrounds were more likely to misuse firearms or were

otherwise irresponsible or dangerous. The Government 

simply presented no such evidence.8

Additionally, that federal law gives Binderup and 

Suarez opportunities to escape the effect of § 922(g)(1) does 

not save the statute from unconstitutionality under the 

 8 Judge Fuentes and those colleagues who join his 

opinion dissenting from the judgments suggest that our 

heightened scrutiny analysis boils down to the Challengers 

asking us to trust that they will not misuse firearms because 

we cannot make predictive judgments about the need to 

disarm the Challengers “with any degree of confidence.” 

Fuentes Op. Typescript at 55. We disagree. Under either form 

of heightened scrutiny it is the Government’s burden to prove 

that the restriction is appropriately tailored. The problem in 

our cases is that because the Government’s evidence sweeps 

so broadly, it does not establish that the restriction serves an 

important interest even as applied to people like the 

Challengers, let alone to the Challengers themselves. 
39

circumstances. For starters, several avenues are closed to 

them altogether: they may not apply for relief under § 925(c) 

because that provision has been unfunded for years, see 

Logan, 552 U.S. at 28 n.1; and Suarez is ineligible for 

expungement or the restoration of his civil rights, see Md. 

Code, Crim. P., § 10-105; Logan, 552 U.S. at 31–32. Those 

avenues that remain open to them do not satisfy even 

intermediate scrutiny. Binderup’s record may be expunged 

only after he reaches age 70 (or is dead for three years), 18 

Pa. Cons. Stat. § 9122(b), but as there is no evidence showing 

it is reasonable to ban Binderup from possessing a firearm 

today, there is certainly no evidence to show that it is 

reasonable to keep that ban in place until his 70th birthday. 

The only remaining option is for Binderup and Suarez to 

receive pardons from the Governors of Pennsylvania and 

Maryland, respectively. (Pardons are, as already noted, an

independent ground for relief from the firearm disability in 

§ 922(g)(1), and Binderup must receive a pardon to restore 

his civil rights. See 42 Pa. Cons. Stat. § 4502(a)(3).) But the 

Government has presented no evidence or explanation as to 

why a Governor’s decisions about pardons—“a classic

example of unreviewable executive discretion,” Bowens v. 

Quinn, 561 F.3d 671, 676 (7th Cir. 2009)—are reasonably 

related to the risk posed by the Challengers’ possession of 

firearms. Though a pardon would reflect well on Binderup 

and Suarez, it is hardly reasonable to treat the absence of a 

pardon—rare by any measure—as adequate proof of a 

continuing need to disarm them indefinitely.

The Challengers’ isolated, decades-old, non-violent 

misdemeanors do not permit the inference that disarming 

people like them will promote the responsible use of firearms. 

Nor is there any evidence in the record to show why people 

like them remain potentially irresponsible after many years of 

apparently responsible behavior. Without more, there is not a 

substantial fit between the continuing disarmament of the 
40

Challengers and an important government interest. Thus,

§ 922(g)(1) is unconstitutional as applied to them.

IV. Conclusion

When sorting out a fractured decision of the Court, the

goal is “to find a single legal standard” that “produce[s] 

results with which a majority of the [Court] in the case 

articulating the standard would agree.” United States v. 

Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (quoting Planned 

Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 

(3d Cir. 1991), modified on other grounds, 505 U.S. 833 

(1992)). We have at times “looked to the votes of dissenting 

[judges] if they, combined with votes from plurality or 

concurring opinions, establish a majority view on the relevant 

issue.” Id. And when no single rationale explaining the result 

enjoys the support of a majority of the Court, its holding 

“may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.” Marks 

v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. 

Georgia, 428 U.S. 153, 69 n.15 (1976) (plurality opinion)).

Applying those interpretive tools here, the following is 

the law of our Circuit: (1) the two-step Marzzarella

framework controls all Second Amendment challenges, 

including as-applied challenges to § 922(g)(1); (2) a

challenger will satisfy the first step of that framework only if 

he proves that the law or regulation at issue burdens conduct 

protected by the Second Amendment; (3) to satisfy step one 

in the context of an as-applied challenge to § 922(g)(1), a 

challenger must prove that he was not previously convicted of 

a serious crime; (4) evidence of a challenger’s rehabilitation 

or his likelihood of recidivism is not relevant to the step-one

analysis; (5) as the narrowest ground supporting the Court’s 

judgments for Binderup and Suarez, the considerations

discussed above will determine whether crimes are serious 
41

(i.e., disqualifying) at step one; and (6) if a challenger makes 

the necessary step-one showing, the burden shifts to the 

Government at step two to prove that the regulation at issue 

survives intermediate scrutiny.

In the cases before us, though Binderup and Suarez fail 

to show that their misdemeanor offenses are not subject to 

§ 922(g)(1), they have rebutted the presumption that they lack 

Second Amendment rights by distinguishing their crimes of 

conviction from those that historically led to exclusion from 

Second Amendment protections. This meets the first-step test 

of Marzzarella. At step two, the Government has failed to 

present sufficient evidence to demonstrate under even 

intermediate scrutiny that it may, consistent with the Second 

Amendment, apply § 922(g)(1) to bar Binderup and Suarez

from possessing a firearm in their homes. Accordingly, we 

affirm the judgments of the District Courts.
Daniel Binderup v. Attorney General of the United States; 

Director Bureau of Alcohol Tobacco Firearms & Explosives

Nos. 14-4550, 14-4549

Julio Suarez v. Attorney General of the United States; 

Director Bureau of Alcohol Tobacco Firearms & Explosives

Nos. 15-1975, 15-1976

HARDIMAN, Circuit Judge, concurring in part and 

concurring in the judgments, joined by FISHER, 

CHAGARES, JORDAN, and NYGAARD, Circuit Judges. 

The Second Amendment secures an individual “right 

of the people” to keep and bear arms unconnected to service 

in the militia. District of Columbia v. Heller, 554 U.S. 570, 

595 (2008). This “pre-existing” right was included in the Bill 

of Rights in light of the troubles the colonists experienced

under British rule and the Founders’ appreciation of the 

considerable power that was transferred to the new federal 

government. Without a specific guarantee in our fundamental 

charter, it was feared that “the people” might one day be 

disarmed. See id. at 598–99. At the same time, the 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. 

The laws of the United States prohibit felons and 

certain misdemeanants from possessing firearms. 18 U.S.C. 

§ 922(g)(1). Guided by the Supreme Court’s characterization 

of felon dispossession as “presumptively lawful” in Heller, 

we held in United States v. Barton that this prohibition does 

not on its face violate the Second Amendment. 633 F.3d 168 

(3d Cir. 2011). In doing so we stated that § 922(g)(1) remains 

subject to as-applied constitutional challenges. Id. at 172–75. 
2

These consolidated appeals present two such challenges. 

Daniel Binderup and Julio Suarez—each permanently barred 

from possessing firearms because of prior misdemeanor 

convictions—contend that § 922(g)(1) is unconstitutional as 

applied to them. 

It is. The most cogent principle that can be drawn from 

traditional limitations on the right to keep and bear arms is 

that dangerous persons likely to use firearms for illicit 

purposes were not understood to be protected by the Second 

Amendment. And because Binderup and Suarez have 

demonstrated that their crimes of conviction were nonviolent 

and that their personal circumstances are distinguishable from 

those of persons who do not enjoy Second Amendment rights 

because of their demonstrated proclivity for violence, the 

judgments of the District Courts must be affirmed. 

I

We agree with all our colleagues that Binderup and 

Suarez are subject to disarmament under the plain terms of 18 

U.S.C. § 922(g)(1).1 We also agree with Judges Ambro, 

Smith, and Greenaway that the District Court correctly held 

 1 Given the Court’s universal agreement that 

§ 922(g)(1) is unambiguous as to whom it covers and what it 

criminalizes, we have trouble comprehending the Dissent’s 

fears that our approach for assessing the statute’s as-applied 

constitutionality under the Second Amendment (set forth 

infra) puts it at risk of being declared unconstitutionally 

vague under the Due Process Clause. See Dissent at 71–74. 

Our view is simply that certain applications of this pellucid 

statute might be unconstitutional.
3

that § 922(g)(1) is unconstitutional as applied to Binderup and 

Suarez. But we perceive flaws in Judge Ambro’s opinion.2

To begin with, our colleagues misapprehend the 

traditional justifications underlying felon dispossession, 

substituting a vague “virtue” requirement that is belied by the 

historical record. Then, under the guise of “reaffirm[ing]” the 

two-step test of United States v. Marzzarella, Ambro Op. 6, 

they actually expand that test—and along with it, the judicial 

power. For our colleagues hold that even with respect to 

persons entitled to Second Amendment rights, judges may 

pick and choose whom the government may permanently 

disarm if the judges approve of the legislature’s interest 

balancing. Despite Binderup’s and Suarez’s success today, 

our colleagues have retained “the power to decide on a caseby-case basis whether the [Second Amendment] right is 

really worth insisting upon.” Heller, 554 U.S. at 634. This is 

demonstrated by the fact that all but three of our dissenting 

colleagues—who have concluded that all as-applied 

challenges to § 922(g)(1) must fail—join the bulk of Judge 

Ambro’s constitutional analysis. By contrast, we would 

hold—consistent with Heller—that non-dangerous persons 

convicted of offenses unassociated with violence may rebut 

the presumed constitutionality of § 922(g)(1) on an as-applied 

basis, and that when a law eviscerates the core of the Second 

 2 Although a majority of the Court joins two portions 

of Judge Ambro’s opinion and a plurality joins others, the 

outcome-determinative sections are supported by only three 

judges. To minimize confusion, we will refer to the opinion 

as “Judge Ambro’s opinion” and will indicate whether the 

relevant portion thereof was backed by a majority or not 

where necessary. 
4

Amendment right to keep and bear arms (as § 922(g)(1) does 

by criminalizing exercise of the right entirely), it is 

categorically unconstitutional. 

A

The Second Amendment provides: “A well regulated 

Militia, being necessary to the security of a free State, the 

right of the people to keep and bear Arms, shall not be 

infringed.” U.S. Const. amend. II. In Heller, the Supreme 

Court held the Second Amendment protects an individual 

right to possess a firearm unconnected to service in a militia, 

and to use that weapon for traditionally lawful purposes, such 

as self-defense within the home. 554 U.S. at 595. The Second 

Amendment “elevates above all other interests the right of 

law-abiding, responsible citizens to use arms in defense of 

hearth and home”—a right that is at the “core” of the Second 

Amendment. Id. at 635 (emphasis added). Two years after 

Heller, in McDonald v. City of Chicago, the Court held the 

Fourteenth Amendment “incorporates the Second 

Amendment right recognized in Heller,” explaining that the

right is “fundamental” to “our system of ordered liberty.” 561 

U.S. 742, 778 (2010).

Although the Second Amendment is an enumerated 

fundamental right, it is “not unlimited.” Heller, 554 U.S. at 

626. “No fundamental right—not even the First 

Amendment—is absolute.” McDonald, 561 U.S. at 802 

(Scalia, J., concurring). A range of “who,” “what,” “where,” 

“when,” and “how” restrictions relating to firearms are 

permitted—many based on the scope of the Second 

Amendment and others based on their satisfaction of some

level of heightened scrutiny. See Eugene Volokh, 

Implementing the Right to Keep and Bear Arms for Self-
5

Defense: An Analytical Framework and A Research Agenda, 

56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between 

“‘what’ restrictions (such as bans on machine guns, so-called 

‘assault weapons,’ or unpersonalized handguns), ‘who’ 

restrictions (such as bans on possession by felons, 

misdemeanants, noncitizens, or 18-to-20-year-olds), ‘where’ 

restrictions (such as bans on carrying in public, in places that 

serve alcohol, or in parks, or bans on possessing [guns] in 

public housing projects), ‘how’ restrictions (such as storage 

regulations), [and] ‘when’ restrictions (such as waiting 

periods)”); United States v. Huitron-Guizar, 678 F.3d 1164, 

1166 (10th Cir. 2012) (applying the same heuristic). 

For instance, the right is “not a right to keep and carry 

any weapon whatsoever in any manner whatsoever and for 

whatever purpose.” Heller, 554 U.S. at 626. Likewise, the 

Supreme Court has acknowledged the “historical tradition of 

prohibiting the carrying of dangerous and unusual weapons.” 

Id. (internal quotation marks omitted). In addition, Heller 

catalogued a non-exhaustive list of “presumptively lawful 

regulatory measures” that have historically constrained the 

parameters of the right. Id. at 627 n.26. These include 

“longstanding prohibitions on the possession of firearms by 

felons and the mentally ill, . . . laws forbidding the carrying of 

firearms in sensitive places such as schools and government 

buildings, [and] laws imposing conditions and qualifications 

on the commercial sale of arms.”3 Id. at 626–27. Critically, 

 3 At least one of our sister courts has characterized 

Heller’s list of “presumptively lawful” regulations as dicta. 

See United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 

2010). But “[c]ourts often limit the scope of their holdings, 

and such limitations are integral to those holdings.” United 
6

such “traditional restrictions go to show the scope of the right, 

not its lack of fundamental character.” McDonald, 561 U.S. at 

802 (Scalia, J., concurring) (emphasis added). The reason, for 

example, that the Second Amendment “does not protect those 

weapons not typically possessed by law-abiding citizens for 

lawful purposes, such as short-barreled shotguns,” is that they 

fall outside the historical “scope of the right”—not that the 

right yields to some important or compelling government 

interest. Heller, 554 U.S. at 625; see also United States v. 

Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).

The Supreme Court has not yet heard an as-applied 

Second Amendment challenge to a presumptively lawful ban 

on firearms possession. But that fact makes Heller and 

McDonald no less binding on our inquiry here. 

B

1

Two of our decisions pertain to Binderup’s and 

Suarez’s as-applied challenges in these appeals. United States

 

States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010)

(treating Heller’s “presumptively lawful” language as 

binding); see also United States v. Rozier, 598 F.3d 768, 771 

(11th Cir. 2010) (“[T]o the extent that this portion of Heller

limits the Court’s opinion to possession of firearms by lawabiding and qualified individuals, it is not dicta.”). Moreover, 

the Court doubled down on this language in McDonald. See 

561 U.S. at 786. Hence, we have concluded that Heller’s list 

constitutes a limitation on the scope of its holding and does 

not qualify as dicta. See Barton, 633 F.3d at 171; United 

States v. Huet, 665 F.3d 588, 600 (3d Cir. 2012).
7

v. Marzzarella involved an as-applied challenge to a 

conviction under 18 U.S.C. § 922(k), which prohibits the 

possession of a handgun with an obliterated serial number—a 

“what” restriction limiting possession of a certain category of 

firearms. 614 F.3d at 87. Because this statute was not 

included in Heller’s list of presumptively lawful firearm 

regulations, we gleaned from Heller a “two-pronged approach 

to Second Amendment challenges.” Id. at 89. We first 

consider “whether the challenged law imposes a burden on 

conduct falling within the scope of the Second Amendment’s 

guarantee.” Id. If the conduct lies outside the Second 

Amendment’s scope, the right does not apply and the 

challenged law must stand. But if the law burdens protected 

conduct, we determined that the proper course is to “evaluate 

the law under some form of means-end scrutiny.” Id. “If the 

law passes muster under that standard, it is constitutional. If it 

fails, it is invalid.” Id.

Applying that test to § 922(k)’s ban on the possession 

of firearms with obliterated serial numbers, we held that the 

law “would pass constitutional muster even if it burdens 

protected conduct.” Id. at 95. In other words, we skipped the 

first step and proceeded to apply means-ends scrutiny. We 

chose intermediate scrutiny4 because “[t]he burden imposed 

by the law does not severely limit the possession of firearms” 

and does not bar possession of an entire class of firearms. Id.

 4 Intermediate scrutiny “require[s] the asserted 

governmental end to be more than just legitimate, either 

‘significant,’ ‘substantial,’ or ‘important,’” and requires “the 

fit between the regulation and the asserted objective be 

reasonable, not perfect.” Marzzarella, 614 F.3d at 98 

(citations omitted).
8

at 97. Under that standard, we concluded that the law is 

constitutional because it fits reasonably with the substantial or 

important “law enforcement interest in enabling the tracing of 

weapons via their serial numbers.” Id. at 98. We also opined 

that the law would pass strict scrutiny5 because it serves a 

compelling government interest through the “least-restrictive” 

means. Id. at 100.

A year after Marzzarella we decided Barton, which 

involved facial and as-applied challenges to the very law in 

question here: § 922(g)(1). Unlike the law at issue in 

Marzzarella—the “what” restriction codified in § 922(k)—

the statute at issue in Barton (and in these appeals) was a 

presumptively lawful “who” restriction that prohibits certain 

people from possessing guns because of their membership in 

a criminal class. Barton was a felon who had been convicted 

of possessing firearms and ammunition in violation of 

§ 922(g)(1). Barton, 633 F.3d at 169. We readily concluded 

that his facial challenge “must fail” in light of Heller’s list of 

presumptively lawful firearm regulations. Id. at 172. We 

reasoned that since a facial challenge requires a showing that 

the challenged law “is unconstitutional in all of its 

applications,” Heller foreclosed a facial challenge to 

§ 922(g)(1) because it is “presumptively lawful,” meaning 

that, “under most circumstances, [it] regulate[s] conduct 

which is unprotected by the Second Amendment.” Id.

Most relevant to these appeals is our analysis of 

Barton’s as-applied challenge to § 922(g)(1). In that regard, 

 5 “Strict scrutiny asks whether the law is narrowly 

tailored to serve a compelling government interest.” 

Marzzarella, 614 F.3d at 96 n.14
9

we first determined that “Heller’s statement regarding the 

presumptive validity of felon gun dispossession statutes does 

not foreclose” an as-applied challenge. Id. at 173. We 

reasoned that “[b]y describing the felon disarmament ban as 

presumptively lawful, the Supreme Court implied that the 

presumption may be rebutted.”6 Id. at 173 (internal citation 

and quotation marks omitted). 

 6 At times, the Government seems to reject even the 

possibility of an as-applied Second Amendment challenge to 

a presumptively lawful regulation. See, e.g., Gov’t Suarez Br. 

15 (“In recognizing section 922(g)(1) as a ‘presumptively 

lawful regulatory measure[],’ the Supreme Court did not 

suggest that the statute nonetheless could be subject to a 

successful as-applied constitutional challenge.” (internal 

citation omitted)); Gov’t Binderup Br. 14 (same, verbatim). 

The Government retreated from that proposition somewhat at 

oral argument, reframing its position as an objection merely 

to as-applied challenges that rely on individualized review of 

whether a law is unconstitutional in light of the challenger’s 

particular circumstances. But some degree of individualized 

assessment is part and parcel of all as-applied challenges. See, 

e.g., United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 

2010) (explaining that an as-applied challenge “does not 

contend that a law is unconstitutional as written but that its 

application to a particular person under particular 

circumstances deprived that person of a constitutional right”

(emphases added)).

And our determination in Barton that § 922(g)(1) is 

subject to as-applied challenges is by no means an outlier. 

Several of our sister courts have either accepted or allowed

the possibility of as-applied Second Amendment challenges 
10

 

to presumptively lawful regulations. See, e.g., United States v. 

Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“Heller referred 

to felon disarmament bans only as ‘presumptively lawful,’ 

which, by implication, means that there must exist the 

possibility that the ban could be unconstitutional in the face

of an as-applied challenge.”); United States v. Carpio-Leon, 

701 F.3d 974, 981 (4th Cir. 2012) (“The Heller Court’s 

holding that defines the core right to bear arms by lawabiding, responsible citizens does not preclude some future 

determination that persons who commit some offenses might 

nonetheless remain in the protected class of ‘law-abiding, 

responsible’ persons.”); Schrader v. Holder, 704 F.3d 980,

991 (D.C. Cir. 2013) (indicating willingness to consider an 

as-applied Second Amendment challenge to § 922(g)(1) but 

concluding it had not been raised properly).

Although the Dissent rests its conclusion on its 

determination that all persons covered by § 922(g)(1) fall 

outside the scope of the Second Amendment, it too expresses 

doubt as to the availability of as-applied constitutional 

challenges to this “presumptively lawful” statute. See Dissent 

at 21 (stating that Marzzarella “concluded that the ‘better 

reading’ of Heller was that [the list of presumptively lawful]

measures were complete ‘exceptions to the right to bear 

arms’”) (quoting Marzzarella, 614 F.3d at 91 and adding 

emphasis). Marzzarella held no such thing (indeed, it did not 

even involve a challenge to one of the presumptively lawful 

longstanding regulations identified by Heller). Rather, its 

examination of Heller’s list was geared toward determining 

whether such regulations were “presumptively lawful” based 

on the step-one question (the scope of the Second 

Amendment) or the step-two question (means-end scrutiny). 

Its conclusion that the former is the correct understanding of 
11

Next, we explained what was required to mount a 

successful as-applied Second Amendment challenge to 

 

Heller meant that “these longstanding limitations are 

exceptions to the right to bear arms.” Marzzarella, 614 F.3d 

at 91. Barton’s characterization mirrored Marzzarella’s: it 

stated that a “lawful” longstanding regulation “regulates 

conduct ‘fall[ing outside] the scope of the Second 

Amendment’s guarantee.’” Barton, 633 F.3d at 172 (quoting

Marzzarella, 614 F.3d at 91). But neither Marzzarella nor any 

other of our precedents has ever implied that Heller’s 

incomplete list of “presumptively lawful” firearm regulations 

“‘under any and all circumstances do not offend the Second 

Amendment.’” Dissent at 10 (quoting United States v. Rozier, 

598 F.3d 768, 771 (11th Cir. 2010) and adding emphasis). To 

so hold would ignore the meaning of the word “presumption.” 

A presumption of constitutionality “is a presumption . . .

[about] the existence of factual conditions supporting the 

legislation. As such it is a rebuttable presumption.” Borden’s 

Farm Products Co. v. Baldwin, 293 U.S. 194, 209 (1934)

(emphasis added). We do not disagree that the Heller Court 

included this “presumptively lawful” language to provide 

some “assurance[]” that its decision “did not provide a basis 

for future litigants to upend any and all restrictions on the 

right to bear arms.” Dissent at 36. Indeed, we have concluded 

that § 922(g)(1) is facially valid for this very reason. See 

Barton, 633 F.3d at 172. But we doubt the Supreme Court 

couched its first definitive characterization of the nature of 

the Second Amendment right so as to completely immunize 

this statute from any constitutional challenge whatsoever. Put 

simply, we take the Supreme Court at its word that felon 

dispossession is “presumptively lawful.” Heller, 554 U.S. at 

627 n.26 (emphasis added).
12

§ 922(g)(1). We looked to the “historical pedigree” of the 

statute to ascertain “whether the traditional justifications 

underlying the statute support a finding of permanent 

disability in this case.” Id; see also id. at 175 (noting that the 

constitutionality of the felon dispossession statute under the 

Second Amendment right depends “upon whom the right was 

intended to protect”) (emphasis in original). Our analysis 

revealed that although persons convicted of violent crimes 

have been barred from firearm possession since 1931, it 

wasn’t until thirty years later that Congress dispossessed 

nonviolent felons. Id. at 173. The historical record 

demonstrated that “the common law right to keep and bear 

arms did not extend to those who were likely to commit 

violent offenses.” Id. Accordingly, we determined that the 

exclusion of felons and other criminals from the scope of the 

Second Amendment’s protections was tethered to the timehonored practice of keeping firearms out of the hands of those 

likely to commit violent crimes. Id.

For the reasons discussed, we concluded that “[t]o 

raise a successful as-applied challenge, [one] must present 

facts about himself and his background that distinguish his 

circumstances from those of persons historically barred from 

Second Amendment protections.” Id. at 174. We explained 

further:

For instance, a felon convicted of a minor, nonviolent crime might show that he is no more 

dangerous than a typical law-abiding citizen. 

Similarly, a court might find that a felon whose 

crime of conviction is decades-old poses no 

continuing threat to society. 

Id. (internal citation omitted).
13

We had no trouble concluding that Barton failed to 

make this showing because he could not demonstrate that he 

was “no more likely than the typical citizen to commit a 

crime of violence.” Id. To begin with, his prior disqualifying 

convictions were for possession of cocaine with intent to 

distribute and for receipt of a stolen firearm. Id. As we 

explained, “[c]ourts have held in a number of contexts that 

offenses relating to drug trafficking and receiving stolen 

weapons are closely related to violent crime”—again, the 

relevant historical justification for excluding the class of 

which Barton was a member from the Second Amendment’s 

protections. Id. The record also indicated that Barton had not 

been rehabilitated such that he was “no more dangerous than 

a typical law-abiding citizen.” Id. Indeed, he had recently 

admitted to selling a firearm with an obliterated serial number 

to a police informant. Id. For those reasons, we rejected 

Barton’s as-applied challenge because he had failed “to 

demonstrate that his circumstances place him outside the 

intended scope of § 922(g)(1).” Id.

2

Our decisions in Marzzarella and Barton show that the 

threshold question in a Second Amendment challenge is one 

of scope: whether the Second Amendment protects the 

person, the weapon, or the activity in the first place. This 

requires an inquiry into “text and history.” Heller, 554 U.S. at 

595. “Constitutional rights are enshrined with the scope they 

were understood to have when the people adopted them, 

whether or not future legislatures or (yes) even future judges 

think that scope too broad.” Id. at 634–35. The “critical tool 

of constitutional interpretation” in this area is “examination of 

a variety of legal and other sources to determine the public 

understanding of a legal text in the period after its enactment 
14

or ratification.” Id. at 605 (emphasis in original); see also

Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) 

(“Heller suggests that some federal gun laws will survive 

Second Amendment challenge because they regulate activity 

falling outside the scope of the right as publicly understood 

when the Bill of Rights was ratified; McDonald confirms that 

if the claim concerns a state or local law, the ‘scope’ question 

asks how the right was publicly understood when the 

Fourteenth Amendment was proposed and ratified.”). Hence, 

the scope of the right is discerned with reference to the 

“historical justifications” underlying traditional limits on the 

right’s coverage. Heller, 554 U.S. at 635. The test we 

enunciated in Barton was directed at this very question. See 

Barton, 633 F.3d at 173 (“[T]o evaluate [an] as-applied 

challenge [to § 922(g)(1)], we look to [its] historical pedigree 

. . . to determine whether the traditional justifications 

underlying the statute support a finding of permanent 

disability in this case.”). 

The fact that Barton speaks to scope does not mean, as 

our colleagues and the Government insist, that it requires 

application of means-end scrutiny once it is determined that a 

presumptively lawful regulation has dispossessed someone

who falls within the protection of the Second Amendment. It 

is true that courts typically apply some form of means-end 

scrutiny to as-applied challenges once it has been determined 

that the law in question burdens protected conduct. But when, 

as in these appeals, it comes to an as-applied challenge to a 

presumptively lawful regulation that entirely bars the 

challenger from exercising the core Second Amendment 

right, any resort to means-end scrutiny is inappropriate once it 

has been determined that the challenger’s circumstances 

distinguish him from the historical justifications supporting 
15

the regulation. This is because such laws are categorically 

invalid as applied to persons entitled to Second Amendment 

protection—a matter of scope. 

This principle is based on Heller itself. That decision 

invalidated a municipal law that banned handgun possession 

in the home and required any lawful firearm to be kept 

disassembled and bound by a trigger lock at all times, 

rendering it inoperable.7 Heller, 554 U.S. at 628. Especially 

significant for these appeals, the Court eschewed means-end 

scrutiny in assessing the constitutionality of the ban. Because 

the law precluded individuals from possessing an important 

class of firearms in the home even for self-defense (the right 

at the “core” of the Second Amendment) and required that all 

firearms within the home be rendered inoperable, it was 

unconstitutional without regard to governmental interests 

supporting the law or their overall “fit” with the regulation. 

See Heller, 554 U.S. at 629–30.

Heller’s reasoning bears this out. Specifically, with 

respect to the District of Columbia’s requirement that all 

firearms in the home be “kept inoperable at all times,” the 

Court said: “[t]his makes it impossible for citizens to use 

them for the core lawful purpose of self-defense and is hence 

unconstitutional.” Id. at 630 (emphasis added). 

Conspicuously absent from the Court’s analysis is any 

mention of means-end scrutiny. Instead, the Court reasoned 

 7 McDonald involved a similar handgun ban, but the 

Court limited its analysis to the incorporation question and 

remanded the case. 561 U.S. at 791. The City of Chicago 

subsequently lifted the ban and replaced it with a less 

restrictive ordinance. See Ezell, 651 F.3d at 689.
16

categorically: (1) the regulation entirely deprives protected 

persons from exercising the core of the Second Amendment 

right; (2) it’s therefore unconstitutional. The same went for 

the District of Columbia’s handgun ban. After concluding that 

the Second Amendment includes handguns, the Court didn’t 

mince words: “[w]hatever the reason, handguns are the most 

popular weapon chosen by Americans for self-defense in the 

home, and a complete prohibition of their use is invalid.” Id.

at 629 (emphasis added). A nineteenth century authority 

quoted by the Supreme Court in the paragraph preceding this 

conclusion should eliminate any doubt regarding the Court’s 

categorical approach: “A statute which, under the pretence of 

regulating, amounts to a destruction of the right, or which 

requires arms to be so borne as to render them wholly useless 

for the purpose of defence, would be clearly 

unconstitutional.” Id. (quoting State v. Reid, 1 Ala. 612, 616–

617 (1840)) (emphases added); see also Bliss v. Com., 12 Ky. 

90, 91 (1822) (suggesting that a regulation that “import[s] an 

entire destruction of the right of the citizens to bear arms in 

defense of themselves and the state” would be plainly 

unconstitutional). Hence, a law that burdens persons, arms, or 

conduct protected by the Second Amendment and that does so 

with the effect that the core of the right is eviscerated is 

unconstitutional.8

 8 The Heller Court declined to detail which form of 

scrutiny might apply in cases involving less severe burdens 

on Second Amendment rights but cautioned that rational basis 

scrutiny would never apply. Id. at 629 n.27. “If all that was 

required to overcome the right to keep and bear arms was a 

rational basis,” the Court explained, “the Second Amendment 
17

We are not the first to recognize this categorical rule. 

As the Seventh Circuit has explained, “[b]oth Heller and 

McDonald suggest that broadly prohibitory laws restricting 

the core Second Amendment right—like the handgun bans at 

issue in those cases, which prohibited handgun possession 

even in the home—are categorically unconstitutional.” Ezell, 

651 F.3d at 703; see also Joseph Blocher, Categoricalism and 

Balancing in First and Second Amendment Analysis, 84 

N.Y.U. L. Rev. 375, 380 (2009) (“Rather than adopting one 

of the First Amendment’s many Frankfurter-inspired 

balancing approaches, the majority endorsed a categorical test 

under which some types of ‘Arms’ and arms-usage are 

protected absolutely from bans and some types of ‘Arms’ and 

people are excluded entirely from constitutional coverage.”); 

Heller v. D.C., 670 F.3d 1244, 1272–73 (D.C. Cir. 2011) 

(Kavanaugh, J., dissenting) (“As to the ban on handguns[,] 

. . . the Supreme Court in Heller never asked whether the law 

was narrowly tailored to serve a compelling government 

interest (strict scrutiny) or substantially related to an 

important government interest (intermediate scrutiny). If the 

Supreme Court had meant to adopt one of those tests, it could 

have said so in Heller and measured D.C.’s handgun ban 

against the relevant standard. But the Court did not do so; it 

instead determined that handguns had not traditionally been 

banned and were in common use—and thus that D.C.’s 

handgun ban was unconstitutional.”); Peruta v. Cnty. of San 

Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) (“[T]he rare law 

that ‘destroys’ the [core Second Amendment] right” requires 

“Heller-style per se invalidation.”) (O’Scannlain, J.), rev’d on 

reh’g en banc, 2016 WL 3194315 (9th Cir. June 9, 2016).

 

would be redundant with the separate constitutional 

prohibitions on irrational laws, and would have no effect.” Id. 
18

Although we suspect that most firearm regulations 

probably will not trigger this categorical rule, § 922(g)(1) 

certainly does. As applied to someone who falls within the 

protective scope of the Second Amendment, § 922(g)(1) goes 

even further than the “severe restriction” struck down in 

Heller: it completely eviscerates the Second Amendment 

right.9 Cf. United States v. McCane, 573 F.3d 1037, 1049 

(10th Cir. 2009) (Tymkovich, J., concurring) (recognizing 

that “the broad scope of 18 U.S.C. § 922(g)(1)—which 

permanently disqualifies all felons from possessing 

firearms—would conflict with the ‘core’ self-defense right 

embodied in the Second Amendment” to the extent that its 

presumptive validity does not attach) (emphasis in original). 

Indeed, the Government’s contention that one can fall within 

the protective scope of the Second Amendment yet 

nevertheless be permanently deprived of the right transforms 

what it means to possess a “right.” Boiled down to its 

essence, the Government’s position goes something like this: 

“You have the right to keep and bear arms, but you may never 

exercise that right because we have supplied good reasons.” 

This understanding of the Second Amendment is too 

 9 The Government wrongly asserts that we have 

recognized that “even laws that actually burden Second 

Amendment rights must only have a ‘reasonable, not perfect,’ 

fit with an important government interest.” Gov’t Br. 26 

(quoting Marzzarella, 614 F.3d at 98). The Dissent agrees 

that intermediate scrutiny is the appropriate standard here. See 

Dissent at 41–45. But Marzzarella applied intermediate 

scrutiny (before going on to apply strict scrutiny, just in case) 

because the law under attack did not even “come close” to a 

ban on the possession of firearms in the home. Marzzarella, 

614 F.3d at 97. 
19

parsimonious a view of a constitutional right because a

“right” that entitles its holder to nothing whatsoever “is no 

constitutional guarantee at all.” Heller, 554 U.S. at 634. 

When the Second Amendment applies, its core guarantee 

cannot be withdrawn by the legislature or balanced away by 

the courts.10 Rather, “[t]he very enumeration of the right takes 

out of the hands of government—even the Third Branch of 

Government—the power to decide on a case-by-case basis 

whether the right is really worth insisting upon.” Id. at 634.11

 10 See Crawford v. Washington, 541 U.S. 36, 67–68 

(2004) (“By replacing categorical constitutional guarantees 

with open-ended balancing tests, we do violence to their 

design. Vague standards are manipulable . . . .”).

11 Judges Ambro and Fuentes deny that § 922(g)(1) 

eviscerates the right to keep and bear arms. In Judge Ambro’s 

view, because “persons convicted of disqualifying offenses 

may possess handguns if (1) their convictions are expunged 

or set aside, (2) they receive pardons, or (3) they have their 

civil rights restored,” the statute is akin to run-of-the-mill 

regulations imposing “preconditions” to firearm possession 

by individuals with Second Amendment rights, such as safety 

training requirements. Ambro Op. 17–18. Far from it. To 

begin with, the “only . . . option” available to Binderup and 

Suarez to satisfy the so-called “precondition” imposed by 

§ 922(g)(1) is to receive pardons. Id. at 39. To frame this 

moonshot as a mere condition precedent to arms possession 

not unlike a training-course requirement strains credulity. 

Section 922(g)(1) is a ban on firearms possession subject to a 

few statutory exceptions, not a mere regulatory proviso that 

simply conditions exercise of the right on the completion of a 

background check or safety class. 
20

3

For the reasons stated, Barton alone provides the 

standard for an as-applied Second Amendment challenge to a 

presumptively lawful regulatory measure (like § 922(g)(1)) 

 

Indeed, Heller itself shows the “precondition” 

characterization of § 922(g)(1) to be unavailing. The handgun 

ban and disassembly ordinance struck down in that case 

likewise had exceptions that could be abstractly framed as 

“conditions precedent” to exercise of the Second Amendment 

right: the handgun ban was subject to an exception that the 

Chief of Police could issue one-year handgun licenses at his 

discretion and the disassembly ordinance allowed residents to 

keep lawful firearms in the home so long as they were 

rendered inoperable. See Heller, 554 U.S. at 574–75. But the 

Supreme Court did not understand the licensing exception as 

a condition precedent to handgun possession or the 

disassembly rule as a mere precondition on keeping firearms 

in the home; it viewed these carve-outs as “minor exceptions” 

and struck down both ordinances as unconstitutional 

destructions of the Second Amendment right. Id. at 575 n.1, 

629–30. The Dissent’s retort that Heller is distinguishable 

because there the “core ‘right of law-abiding, responsible 

citizens to use arms in defense of hearth and home’” was 

implicated and here it is not because Binderup and Suarez’s 

misdemeanors place them outside of that class puts the rabbit 

in the hat. Dissent at 45 (quoting Heller, 554 U.S. at 635). If 

Binderup’s and Suarez’s offenses are not of the type that 

were historically understood to remove them from the class of 

persons entitled to Second Amendment rights, § 922(g)(1) 

effects the same type of untenable “conditions” that were 

deemed unconstitutional in Heller. 
21

that denies a core Second Amendment right to a certain class 

of persons. And our opinion in that case explains the two 

things an individual must do to mount a successful as-applied 

challenge. First, he must identify the traditional justifications 

for excluding from Second Amendment protections the class 

of which he is a member. See Barton, 633 F.3d at 172. Only 

justifications with “historical pedigree” are relevant for 

regulations imposing a permanent disability. Id. Second, he 

must present facts about himself and his background that 

distinguish his circumstances from those of persons in the 

historically barred class. Id. at 174. These facts must speak to 

the traditional justifications that legitimize the class’s 

disability. In Barton we noted at least two ways of doing this: 

(1) “a felon convicted of a minor, non-violent crime might 

show that he is no more dangerous than a typical law-abiding 

citizen,” or (2) “a court might find that a felon whose crime of 

conviction is decades-old poses no continuing threat to 

society.”12 Id.

This does not mean, of course, that a dispossessed 

individual can win an as-applied challenge by promising to 

 12 Our colleagues reject Barton’s mention of the 

possibility that “the passage of time or evidence of 

rehabilitation [might] restore the Second Amendment rights 

of people who committed serious crimes.” Ambro Op. 26. We 

have not been presented with historical evidence one way or 

another whether this might be a route to restoration of the 

right to keep and bear arms in at least some cases, so we 

would leave for another day the determination whether that 

turns out to be the case. 
22

behave well in the future.

13 Courts must diligently inquire 

into the facts to determine whether a challenger has 

 13 The Government’s and the Dissent’s repeated 

citations on this point to Pontarelli v. U.S. Department of 

Treasury are inapposite. That case involved an appropriations 

ban that suspended the ability of the Bureau of Alcohol, 

Tobacco, and Firearms (ATF) to consider petitions from 

convicted felons for restoration of their firearms privileges 

under 18 U.S.C. § 925(c), a statute that also gives federal 

district courts jurisdiction to review applications denied by 

ATF. 285 F.3d 216, 217 (3d Cir. 2002). We concluded that 

“because the appropriations ban suspends ATF’s ability to 

issue the ‘denial’ that § 925(c) makes a prerequisite, it 

effectively suspends that statute’s jurisdictional grant.” Id.

Given that “[e]valuating a § 925(c) application requires a 

detailed investigation of the felon’s background and recent 

conduct,” which includes “interviewing a wide array of 

people, including the felon, his family, his friends, the 

persons whom he lists as character references, members of 

the community where he lives, his current and former 

employers, his coworkers, and his former parole officers,” we 

noted as a “[p]olicy [c]onsideration[]” that without prior ATF 

involvement and an adversarial process, “courts are without 

the tools necessary to conduct a systematic inquiry into an 

applicant’s background.” Id. If courts “reviewed applications 

de novo,” we reasoned, “they would be forced to rely 

primarily—if not exclusively—on information provided by 

the felon,” which “would be dangerously one-sided.” Id.

(internal quotation marks and citation omitted). Contrary to 

the Government’s and the Dissent’s characterizations, a 

constitutional inquiry into a presumptively lawful statute is 

distinct from the one-sided, fact-intensive inquiry that would 
23

adequately distinguished his own circumstances from those of 

persons historically barred from Second Amendment 

protections. Heller and Barton place the burden on the 

challenger to rebut the presumptive lawfulness of § 922(g)(1). 

See Barton, 633 F.3d at 174. That’s no easy task. Government 

evidence regarding one’s criminal history will require the 

challenger to make a strong showing to distinguish himself 

from others with criminal records. But to deny one even the 

opportunity to “develop [a] factual basis” in support of his 

constitutional claim would run afoul of both Supreme Court 

guidance regarding the scope of the Second Amendment and 

the concept of an as-applied challenge. Id. at 174.

II

A

We agree with the District Courts that § 922(g)(1) is 

unconstitutional as applied to Binderup and Suarez. As far as 

the historical justification for felon dispossession goes, we 

explained it in Barton: the time-honored principle that the 

right to keep and bear arms does not extend to those likely to 

commit violent offenses. Because the Supreme Court 

declined to “expound upon the historical justifications” for 

 

have been called for were courts required to assess § 925(c) 

petitions in the first instance. Reviewing an as-applied 

constitutional challenge based on facts alleged by a 

challenger and weighing those facts against competing 

evidence proffered by the Government is not only something 

courts are equipped to do, it is our constitutional duty. See

U.S. Const. arts. III and VI, cl. 2; Marbury v. Madison, 5 U.S. 

(1 Cranch) 137, 178 (1803). 
24

the list of presumptively lawful firearm exclusions in Heller, 

554 U.S. at 627 n.26, 635—leaving that task to us—Barton’s 

rationale warrants further explication. As stated, Heller

instructs that the public understanding of the scope of the 

right to keep and bear arms at the time of the Second 

Amendment’s enactment dictates the scope of the right today. 

Id. at 605. In undertaking this inquiry, we are reminded that

“[h]istorical analysis can be difficult; it sometimes requires 

resolving threshold questions, and making nuanced judgments 

about which evidence to consult and how to interpret it.” 

McDonald, 561 U.S. at 803–04 (Scalia, J., concurring). 

The most germane evidence available directly supports 

the conclusion that the founding generation did not 

understand the right to keep and bear arms to extend to 

certain categories of people deemed too dangerous to possess 

firearms. At the Pennsylvania ratifying convention, 

Constitutionalists and other opponents of the Federalists 

proposed language stating that “no law shall be passed for 

disarming the people or any of them unless for crimes 

committed, or real danger of public injury from individuals.” 

The Address and Reasons of Dissent of the Minority of the 

Convention of Pennsylvania to their Constituents, reprinted 

in Bernard Schwartz, 2 The Bill of Rights: A Documentary 

History 662, 665 (1971) (emphasis added). Likewise, at the 

Massachusetts ratifying convention just months later, Samuel 

Adams offered a proposal that the “Constitution be never 

construed to authorize Congress . . . to prevent the people of 

the United States, who are peaceable citizens, from keeping 

their own arms.” Journal of Convention: Wednesday 

February 6, 1788, reprinted in Debates and Proceedings in 

the Convention of the Commonwealth of Massachusetts Held 

in the Year 1788, at 86 (Boston, William White 1856) 
25

(emphasis added). And the New Hampshire convention 

proposed that “Congress shall never disarm any Citizen 

unless such as are or have been in Actual Rebellion.” 

Schwartz, 2 The Bill of Rights: A Documentary History at 

761. 

These proposals show that there was broad consensus 

between Federalists and their opponents on the existence and 

nature of the “natural right” to keep and bear arms for 

defensive purposes; what was controversial was whether the 

Constitution required a Bill of Rights to ensure the right to 

keep and bear arms (as so-called Anti-Federalists contended) 

or whether such an explicit guarantee was unnecessary in 

light of Congress’s limited delegated powers and might in 

fact backfire by minimizing other, unenumerated liberties (as 

Federalists argued). See Stephen P. Halbrook, The Founders’ 

Second Amendment 190–215 (surveying the debates at the 

ratifying conventions and highlighting the commonplace 

understanding that “dangerous persons could be disarmed”). 

Indeed, it is telling that in the crucibles of the ratifying 

conventions, such public declarations of the scope of the right 

to keep and bear arms did not provoke any apparent 

disagreement. See id. As we summarized in Barton, the 

“[d]ebates from the Pennsylvania, Massachusetts and New 

Hampshire ratifying conventions, which were considered 

‘highly influential’ by the Supreme Court in Heller . . . 

confirm that the common law right to keep and bear arms did 

not extend to those who were likely to commit violent 

offenses.” 633 F.3d at 174. Hence, the best evidence we have 

indicates that the right to keep and bear arms was understood 

to exclude those who presented a danger to the public.

A number of firearms restrictions from the founding 

and pre-founding era support this conclusion. Aside from 
26

“complete bans on gun ownership by free blacks, slaves, 

Native Americans, and those of mixed race” (each of which 

today would be plainly unconstitutional), the founding 

generation also disarmed those who refused to pledge their 

loyalty to the Revolution, state, or nation. Adam Winkler, 

Heller’s Catch-22, 56 UCLA L. Rev. 1551, 1562 (2009). As 

the Fifth Circuit has explained, “[a]lthough these Loyalists 

were neither criminals nor traitors, American legislators had 

determined that permitting these persons to keep and bear 

arms posed a potential danger.” Nat’l Rifle Ass’n of Am., Inc. 

v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 

F.3d 185, 200 (5th Cir. 2012); see also United States v. 

Carpio-Leon, 701 F.3d 974, 980 (4th Cir. 2012) (noting that 

Massachusetts required participants in Shays’ Rebellion to 

obtain a pardon for taking up arms against the state, to swear 

allegiance to the state, and to give up their firearms for three 

years). This principle had some roots in the English arms 

tradition, wherein the Crown had the authority “to disarm not 

only papists, but dangerous and disaffected persons as well.” 

Patrick J. Charles, “Arms for Their Defence”?: An Historical, 

Legal, and Textual Analysis of the English Right to Have 

Arms and Whether the Second Amendment Should Be 

Incorporated in McDonald v. City of Chicago, 57 Clev. St. L. 

Rev. 351, 382 (2009); cf. Robert H. Churchill, Gun 

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

Early America: The Legal Context of the Second Amendment, 

25 L. & Hist. Rev. 139, 164 (2007) (noting that although 

“English law supplied ample precedent” to disarm 

“‘dangerous’ citizens,” the power was rarely practiced by 

early American governments). In short, “from time 

immemorial, various jurisdictions recognizing a right to arms 

have . . . taken the step of forbidding suspect groups from 

having arms,” and “American legislators at the time of the 
27

Bill of Rights seem to have been aware of this tradition.” Don 

B. Kates & Clayton E. Cramer, Second Amendment 

Limitations and Criminological Considerations, 60 Hastings 

L.J. 1339, 1360 (2009); see also Marshall, 32 Harv. J.L. & 

Pub. Pol’y at 711–12 (examining later laws (upheld in courts) 

barring possession of firearms while intoxicated and 

possession of firearms by “tramps” (roaming beggars) and 

construing them in terms of the “present danger” of 

misconduct presented by such persons were they to carry 

firearms). 

Although the debates from the ratifying conventions 

point strongly toward a limit on Second Amendment rights 

centered on dangerousness, dispossessory regulations enacted 

to that end were few and far between in the first century of 

our Republic. Consequently, some have reckoned that “[t]he 

historical evidence” regarding the scope of the Second 

Amendment “is inconclusive at best.” United States v. Skoien, 

614 F.3d 638, 650 (7th Cir. 2010) (en banc) (Sykes, J., 

dissenting). We disagree. Even though “[t]he Founding 

generation had no laws . . . denying the right [to keep and 

bear arms] to people convicted of crimes,” Winkler, 56 

UCLA L. Rev. at 1563, novelty does not mean 

unconstitutionality. After all, “[t]he paucity of eighteenth 

century gun control laws might have reflected a lack of 

political demand rather than constitutional limitations.” 

Nelson Lund, The Second Amendment, Heller, and 

Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1354 

(2009).

Thus, a common thread running through the words and 

actions of the Founders gives us a distinct principle to inform 

our understanding of the original public meaning of the text 

of the Second Amendment. See, e.g., Marshall, 32 Harv. J.L. 
28

& Pub. Pol’y at 698 (“[A]ctual ‘longstanding’ precedent in 

America and pre-Founding England suggests that a firearms 

disability can be consistent with the Second Amendment to 

the extent that . . . its basis credibly indicates a present danger 

that one will misuse arms against others and the disability 

redresses that danger.”); id. at 727–28 (“[T]o the extent that 

one can distill any guidance from the English disability and 

the Revolutionary disarmament, it would seem at most to be 

that persons who by their actions—not just their thoughts—

betray a likelihood of violence against the state may be 

disarmed.”); Stephen P. Halbrook, What the Framers 

Intended: A Linguistic Analysis of the Right to ‘Bear Arms’, 

49 Law & Contemp. Probs. 151, 161 (1986) (concluding that 

“violent criminals, children, and those of unsound mind may 

be deprived of firearms” (emphasis added)). In sum, the 

historical record leads us to conclude that the public 

understanding of the scope of the Second Amendment was 

tethered to the principle that the Constitution permitted the 

dispossession of persons who demonstrated that they would 

present a danger to the public if armed.14

 14 In arguing generally that all persons with criminal 

records are not entitled to Second Amendment rights, the 

Government and the Dissent emphasize the fact that “[w]e as 

a society require persons convicted of crimes to forfeit any 

number of rights and privileges, including the right to sit on a 

jury, the right to hold elective office, and the right to vote.” 

Dissent at 2. But these forfeitable rights have different 

histories and different constitutional dimensions. Consider the 

right to vote, which like the right to keep and bear arms has 

been declared fundamental by the Supreme Court. See 

Reynolds v. Sims, 377 U.S. 533, 561–62 (1964). Although the 
29

 

Supreme Court has concluded that the Fourteenth 

Amendment’s Equal Protection Clause does not require states 

to advance a compelling interest before denying citizens who 

have been convicted of crimes the right to vote, Richardson v. 

Ramirez, 418 U.S. 24, 54 (1974), that result was demanded by 

the Constitution’s text. Specifically, the Court relied on the 

“understanding of those who adopted the Fourteenth 

Amendment, as reflected in [ ] express language” of Section 2 

of the Fourteenth Amendment that affirmatively contemplates

criminal disenfranchisement, despite Section 1’s guarantee of 

equal protection of the laws. Id. Accordingly, felons fall 

outside the scope of the fundamental right to vote. See Wesley 

v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (“[T]he right 

of felons to vote is not fundamental.”). Probably due to the 

breadth of this exclusion from the right to vote, the Supreme 

Court has not indicated that a disenfranchised criminal might 

succeed in demonstrating that such disenfranchisement is 

unconstitutional as applied to him in light of the historical 

understanding of the right. Rather, a challenger’s only option 

is to show that a particular disenfranchisement provision is 

either irrational or discriminatory. Richardson, 418 U.S. at 

56; Hunter v. Underwood, 471 U.S. 222, 233 (1985). Thus, 

the scope of the right to vote is historically and textually 

distinct from the Second Amendment right.

Nor do limits on jury service or eligibility for public 

office offer any insight into the scope of the Second 

Amendment, not least because they are not fundamental 

rights. See Carter v. Jury Comm’n of Greene Cnty., 396 U.S. 

320, 332 (1970) (“The States remain free to confine the 

selection to citizens, to persons meeting specified 

qualifications of age and educational attainment, and to those 

possessing good intelligence, sound judgment, and fair 
30

Section 922(g)(1) sweeps much more broadly than this 

traditional ground for disarmament. See Barton, 633 F.3d at 

173 (“Although 18 U.S.C. § 922(g) was meant to keep 

firearms out of the hands of presumptively risky people, 

Congress did not bar non-violent felons from possessing guns 

until 1961.”) (internal quotation marks and citation omitted); 

United States v. Booker, 644 F.3d 12, 24 & n.14 (1st Cir. 

2011) (“[I]n covering only those with a record of violent 

crime, § 922(g)(9) [(dispossession of domestic violence 

misdemeanants)] is arguably more consistent with the 

historical regulation of firearms than § 922(g)(1),” which 

“applies to all individuals convicted of a federal felony, thus 

encompassing individuals convicted of crimes as disparate as 

tax evasion and bank robbery. This breadth, and particularly 

the inclusion of nonviolent offenses, constitutes a significant 

departure from earlier understandings of a ‘felony.’ At 

common law, for example, ‘[o]nly the most serious crimes’ 

were considered to be felonies.” (internal citations omitted)); 

supra n.14. The upshot of all this is that the as-applied 

 

character.”); James M. Binnall, Sixteen Million Angry Men: 

Reviving A Dead Doctrine to Challenge the Constitutionality 

of Excluding Felons from Jury Service, 17 Va. J. Soc. Pol’y & 

L. 1, 3 (2009) (“The Supreme Court does not recognize the 

right to sit on a jury as fundamental.”); Lindsay v. Bowen, 750 

F.3d 1061, 1064 (9th Cir. 2014) (noting that there is no 

“fundamental right to run for public office”); U.S. Const. art. 

I, § 2, cl. 1; U.S. Const. amend. X. 

These defeasible civil rights cannot be invoked to 

justify disarming Binderup and Suarez. They are different 

rights, with different histories and scopes, subject to different 

constitutional analyses. 
31

constitutionality of § 922(g)(1) is tied to its historical 

justification: people who have demonstrated that they are 

likely to commit violent crimes have no constitutional right to 

keep and bear arms.15

B

The Government’s divergent reading of the historical 

scope of the Second Amendment—also adopted in different 

ways by Judges Ambro and Fuentes—is unconvincing. 

Relying on the republican notion of “civic virtue,” the 

Government maintains that Binderup’s and Suarez’s 

misdemeanor convictions place them outside the class of 

“those members of the polity who were deemed capable of 

exercising [the right to keep and bear arms] in a virtuous 

manner.” Gov’t Suarez Br. 14 (quoting Saul Cornell, “Don’t 

Know Much about History”: The Current Crisis in Second 

Amendment Scholarship, 29 N. Ky. L Rev. 657, 679 (2002)).

To be sure, “[s]ome scholarship suggests that at the time of 

the nation’s founding, the right to bear arms was not 

understood to extend to those convicted of a felony, either 

because they were not believed to be among ‘the people’ 

whose right to bear arms was protected, or because they 

 15 This rationale is consonant with the governmental

interest usually offered today as justification for 

dispossession: public safety. But the traditional principle that 

constrained the class of persons not entitled to keep and bear 

arms still governs. See Heller, 554 U.S. at 634–35 

(“Constitutional rights are enshrined with the scope they were 

understood to have when the people adopted them, whether or 

not future legislatures or (yes) even future judges think that 

scope too broad.”).
32

lacked the requisite ‘virtue’ necessary for firearm 

possession.” Alexander C. Barrett, Note, Taking Aim at 

Felony Possession, 93 B.U. L. Rev. 163, 194–95 & n.197 

(2013) (citing Don B. Kates, Jr., The Second Amendment: A 

Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986) (offering 

that the right to keep and bear arms was tied to the idea of the 

“virtuous citizen,” such that “the right to arms does not 

preclude laws disarming the unvirtuous (i.e., criminals) or 

those who, like children or the mentally unbalanced, are 

deemed incapable of virtue”)); see also Don B. Kates, Jr. & 

Clayton E. Cramer, Second Amendment Limitations and 

Criminological Considerations, 60 Hastings L.J. 1339, 1360 

(2009) (“[T]here is every reason to believe that the Founding 

Fathers would have deemed persons convicted of any of the 

common law felonies not to be among ‘the [virtuous] people’ 

to whom they were guaranteeing the right to arms.”) 

(alteration in original). 

This “virtue” standard—especially in the pliable 

version articulated by the Government—is implausible 

because the “civic republican” view of the scope of the 

Second Amendment is wrong. Although courts, scholars, and 

litigants have cited this supposed limitation,16 this virtuous-

 16 See, e.g., United States v. Yancey, 621 F.3d 681, 

684–85 (7th Cir. 2010) (per curiam) (“Whatever the pedigree 

of the rule against even nonviolent felons possessing weapons 

. . . most scholars of the Second Amendment agree that the 

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

citizenry and that, accordingly, the government could disarm 

‘unvirtuous citizens.’”) (cited in Govt. Binderup Br. 13 and 

Govt. Suarez Br. 13–14); United States v. Vongxay, 594 F.3d 

1111, 1118 (9th Cir. 2010) (“[W]e observe that most scholars 
33

citizens-only conception of the right to keep and bear arms is 

closely associated with pre-Heller interpretations of the 

 

of the Second Amendment agree that the right to bear arms 

was ‘inextricably . . . tied to’ the concept of a ‘virtuous 

citizen[ry]’ that would protect society through ‘defensive use 

of arms against criminals, oppressive officials, and foreign 

enemies alike,’ and that ‘the right to bear arms does not 

preclude laws disarming the unvirtuous citizens (i.e. 

criminals).’ We recognize, however, that the historical 

question has not been definitively resolved.” (internal 

citations omitted)) (cited in Govt. Binderup Br. 12–13 and 

Govt. Suarez Br. 13–14). 

Yancey relies on a 19th century treatise by Thomas M. 

Cooley for the proposition that the Constitution “protect[s]

rights for “the People” excluding, among others, “the idiot, 

the lunatic, and the felon.” 621 F.3d at 685 (citing Cooley, A 

Treatise on Constitutional Limitations 29 (Boston, Little 

Brown & Co. 1868)). But this interpretation of Cooley’s 

Treatise has been thoroughly debunked (and, indeed, already 

had been prior to Yancey’s publication). See Marshall, 32 

Harv. J.L. & Pub. Pol’y at 709–10 (“The . . . discussion in 

Cooley [cited for felon dispossession] . . . concerns classes 

excluded from voting. These included women and the 

property-less—both being citizens and protected by arms 

rights. When Cooley does address the right to keep and bear 

arms, one finds this: ‘[H]ow far it may be in the power of the 

legislature to regulate the right we shall not undertake to say. 

Happily there neither has been, nor, we may hope, is likely to 

be, much occasion for the examination of that question by the 

courts.’”) (quoting Cooley, Treatise at 499 (Victor H. Lane 

ed., 7th ed. 1903)).
34

Second Amendment by proponents of the “sophisticated 

collective rights model” who rejected the view that the 

Amendment confers an individual right and instead 

characterized the right as a “civic right . . . . exercised by 

citizens, not individuals . . . who act together in a collective 

manner, for a distinctly public purpose: participation in a well 

regulated militia.” Saul Cornell & Nathan DeDino, A Well 

Regulated Right: The Early American Origins of Gun 

Control, 73 Fordham L. Rev. 487, 491–92 (2004).17

Moreover, this supposed limitation on the Second 

Amendment stems from a misreading of an academic debate 

about “ideological interpretation,” Cornell & DeDino, 73 

Fordham L. Rev. at 528 n.29, the gist of which concerns the 

extent to which the Founders were civic republicans or 

libertarians as well as what bearing these ideologies might 

have had on how they understood the right to keep and bear 

arms. See Robert E. Shalhope, The Ideological Origins of the 

Second Amendment, 69 J. Am. Hist. 599, 599–601 (1982) (the 

article that served as contemporary scholars’ principal source 

 17 Cf. Parker v. District of Columbia, 478 F.3d 370, 

378 (D.C. Cir. 2007), aff’d sub nom. Heller, 554 U.S. 570 

(rejecting the view that “the Second Amendment protects 

private possession of weapons only in connection with 

performance of civic duties as part of a well-regulated citizens 

militia organized for the security of a free state” (second 

emphasis added, internal quotation marks omitted)); David T. 

Hardy, 15 Wm. & Mary Bill Rts. J. 1237, 1241–84 (2007) 

(reviewing Saul Cornell, A Well-Regulated Militia: The 

Founding Fathers and the Origin of Gun Control in America 

(2006)) (marshaling considerable historical evidence against 

Cornell’s “civic right only” approach).
35

for the “virtuousness” limitation). Unfortunately, this 

literature sheds no light on “who” was thought to enjoy the 

right to keep and bear arms (at least, none beyond the nowsettled individual-versus-collective right interpretation). 

Rather, it relates to the rationale for having a right to keep 

and bear arms in the first place. See id. at 606–07 

(characterizing the right to keep and bear arms as one with 

both individual- and collective-right elements and claiming 

that the Founders’ unique blend of republicanism and 

libertarianism led them to “perceive[] a vital relationship 

between vigorous republican husbandmen and the possession 

of arms” and believe that a “man capable of defending 

himself with arms if necessary was prerequisite for 

maintaining the moral character to be a good republican”); 

Robert E. Shalhope, The Armed Citizen in the Early Republic, 

49 L. & Contemp. Probs. 125, 132 (1986) (explaining that 

strains of civic republicanism in early-American culture 

viewed arms possession as critical to the virtue of the 

citizenry and the spirit of the state, but never characterizing 

the possession of virtue as a prerequisite to arms rights). 

This literature does not help us identify the types of 

people who were not entitled to exercise Second Amendment 

rights.18 Contemporary advocates of a “virtuousness” 

 18 Not least because it rests largely on a theoretical 

foundation that the Supreme Court has twice now rejected. 

See Heller, 554 U.S. at 595; McDonald, 561 U.S. at 767–68. 

And as at least one scholar has surmised: “[i]f the Second 

Amendment does provide a right to own guns for selfdefense, republicanism cannot supply the intellectual 

foundation for it.” Williams, 101 Yale L.J. at 559 (emphasis 

added). 
36

limitation have projected that constraint onto the right to keep 

and bear arms based on the fact that the very existence of the 

right was informed by republican philosophical principles.19

That is not enough. We have found no historical evidence on 

the public meaning of the right to keep and bear arms 

indicating that “virtuousness” was a limitation on one’s 

qualification for the right—contemporary insistence to the 

contrary falls somewhere between guesswork and ipse dixit. 

Furthermore, it is hard to understand what the 

Government’s proposed “virtuousness” limitation would even 

require. The Government has offered no guidance in this 

regard, except to urge that we defer to legislative judgments 

about what sorts of offenses or characteristics render one 

insufficiently “virtuous” to enjoy a fundamental right. The 

Dissent and to a lesser extent Judge Ambro have accepted this 

approach. The legislative judgments set forth in the margin 

are but a few illustrations of its deep flaws.20 We doubt the 

 19 One of the primary proponents of this school of 

thought has conceded that “[h]istorical scholarship has 

abandoned the notion that American political culture can be 

understood in terms of any single ideological tradition, and 

has embraced a more pluralistic conception of the intellectual 

world of the founders,” though he remains a devotee of the 

civic-virtue limitation. Cornell & DeDino, 73 Fordham L. 

Rev. at 492.

20 Were we to adopt the Government’s proposed 

standard, consider a few examples of offenses that would 

(and currently do) render one permanently disqualified from 

possessing firearms. In Arizona, simple possession of any 

amount of marijuana is a felony punishable by enough jail 

time that any conviction triggers § 922(g)(1). See Ariz. Rev. 
37

 

Stat. Ann. § 13-3405. As the Government would have it, the 

last three Presidents of the United States would have been 

forever barred from possessing firearms had their youthful 

indiscretions been prosecuted in the Copper State. Or 

consider Michigan, which has a generous (10-cents-percontainer) repayment policy for recyclable cans and bottles 

returned to the state—so long as the beverage containers were 

purchased in state. But one who returns out-of-state 

containers is subject to a felony count of beverage return of 

nonrefundable bottles punishable by up to five years’ 

imprisonment (thus disabling the conniving interstate recycler 

under § 922(g)(1)). See Mich. Comp. Laws Ann. 

§ 445.574a(1)(d). This spells disqualification for Kramer, 

Newman, and at least one recent real-life offender. See 

Seinfeld: The Bottle Deposit (NBC television broadcast May 

2, 1996); Seinfeld-inspired ‘Michigan bottle deposit scam’ 

lands Kramer wannabe in hot water (RT America Jun. 15, 

2016), available at https://www.rt.com/viral/346835-seinfeldmichigan-bottle-deposit/. Finally, library theft in 

Pennsylvania constitutes a (federally disabling) misdemeanor 

of the first degree—punishable by up to five years’ 

imprisonment—if the value of the material is $150 or more. 

18 Pa. Stat. and Cons. Stat. Ann. § 3929.1. These examples 

illustrate the saliency of Heller’s admonition that 

“[c]onstitutional rights are enshrined with the scope they were 

understood to have when the people adopted them, whether or 

not future legislatures . . . think that scope too broad.” 554 

U.S. 634–35. We would contravene this instruction and set 

dangerous precedent for other constitutional rights were we to 

blithely accept that “[i]f the citizens of a particular state 

believe that a criminal offense is too minor to trigger 

disarmament, their remedy is to petition the state legislature 
38

 

to amend the law—not to seek redress in the federal courts.” 

Dissent at 61. 

The Government’s theory is all the more questionable 

when analogized to other constitutional rights, such as the 

First Amendment’s free-speech guarantee. Like limitations on 

the scope of the Second Amendment, the unprotected status 

of obscenity, fighting words, and the like is rooted in our 

history. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 

383 (1992). These free-speech exceptions mean that while 

Congress can sharply restrict speech that amounts to 

obscenity or fighting words as traditionally understood, it 

may not substantially redefine what counts as obscenity or 

fighting words in order to reach otherwise protected 

expression. See, e.g., Speiser v. Randall, 357 U.S. 513, 525 

(1958) (“[T]he line between speech unconditionally 

guaranteed and speech which may legitimately be regulated, 

suppressed, or punished is finely drawn.”); Cantwell v. 

Connecticut, 310 U.S. 296, 304 (1940) (“[T]he power to 

regulate must be so exercised as not, in attaining a 

permissible end, unduly to infringe the protected freedom.”); 

Gooding v. Wilson, 405 U.S. 518, 521–25 (1972) (statute that 

state claimed would only reach “fighting words” was 

unconstitutionally overbroad where its terms criminalized 

expression that a listener would find merely offensive or 

insulting). For instance, it would be plainly unconstitutional 

for a legislature to redefine “obscenity” in order to capture 

expression that would otherwise escape the traditional scope 

of obscenity as defined by the Supreme Court. See Janicki v. 

Pizza, 722 F.2d 1274, 1276 (6th Cir. 1983); Ashcroft v. Free 

Speech Coal., 535 U.S. 234, 256 (2002). In other words, the 

historical scope of the First Amendment—not Congress—

determines the parameters of the right.
39

Founders designed a fundamental constitutional right to turn 

on such vagaries. Although it “befits a diverse nation of fifty 

sovereign States and countless municipalities . . . [that] gun 

regulation in the United States resembles a patchwork quilt 

that largely reflects local custom,” Drake v. Filko, 724 F.3d 

426, 440 (3d Cir. 2013) (Hardiman, J., dissenting), to make 

an individual’s entitlement to the Second Amendment right 

itself turn on the predilections of the legislature governing his 

or her patch is deference the Constitution won’t bear. See

McDonald, 561 U.S. at 750 (holding that “the Second 

Amendment right is fully applicable to the States” (emphasis 

added)).

 

The import of this analogy for the Second Amendment 

is straightforward: although certain types of criminals are 

excluded from the right to keep and bear arms, this traditional

limitation on the scope of the right may not be expanded by 

legislative fiat. To hold otherwise would treat the Second 

Amendment “as a second-class right, subject to an entirely

different body of rules than the other Bill of Rights 

guarantees.” McDonald, 561 U.S. at 780 (plurality opinion).

The historical record indicates that the right to keep and bear 

arms was publicly understood at the time of the Constitution’s 

enactment to secure a broadly held natural right that did not 

extend to violent criminals. To redefine the type of “criminal” 

that would qualify for dispossession via a malleable 

“virtuousness” standard in order to capture former nonviolent 

misdemeanants who are in all other respects indistinguishable 

from normal, law-abiding citizens would be akin to redefining 

“fighting words” to encompass run-of-the-mill “trash talk.” 

The Constitution takes each of these temptations “off the 

table.” Heller, 554 U.S. at 636.
40

Even if we were to attempt to apply the notion of civic 

virtue to felon dispossession, it is doubtful the Government 

would prevail. Although felons at common law “were 

essentially stripped of property and other rights,” the term 

“felony” “applied only to a few very serious, very dangerous 

offenses such as murder, rape, arson, and robbery”—in other 

words, crimes closely associated with violence. Kates & 

Cramer, 60 Hastings L.J. at 1362. But see Marshall, 32 Harv. 

J.L. & Pub. Pol’y at 715–16 (casting doubt on the claim that a 

felony conviction necessarily entailed permanent 

dispossession). Indeed, one of the scholars cited by the 

Government concludes that insofar as a statute “would seek to 

bar arms possession by” persons who have been convicted of 

a nonviolent “felony” in the modern sense, “those laws would 

seem to be invalid.” Kates & Cramer, 60 Hastings L.J. at 

1363. See Barrett, 93 B.U. L. Rev. at 196 (“[E]ven if some 

felons were historically understood to be barred from 

possessing firearms, the common law term ‘felony’ applied to 

only a few select categories of serious crimes at the time the 

Second Amendment was ratified, while in modern times, vast 

categories of ‘non-dangerous’ activities qualify as 

felonious.”); Marshall, 32 Harv. J.L. & Pub. Pol’y at 729–30 

(explaining that the first federal felony dispossession laws 

applied only to a core group of crimes including “murder, 

manslaughter, rape, mayhem, aggravated assault . . . robbery, 

burglary, housebreaking, and attempt to commit any of these 

crimes”). And at least one of our sister courts faced with the 

virtuousness argument treated “virtue” as basically 

synonymous with “non-dangerous.” See United States v. Rene 

E., 583 F.3d 8, 16 (1st Cir. 2009) (“To be sure, there is an 

ongoing debate among historians about the extent to which 

the right to bear arms in the founding period turned on 

concerns about the possessor’s ‘virtue,’ i.e., on a legislative 
41

judgment that possession of firearms by a certain class of 

individuals would pose a serious danger to the public.”

(emphasis added)). Accordingly, we reject the Government’s 

suggestion that Second Amendment protections are limited 

“to those members of the polity who were deemed capable of 

exercising [the right to keep and bear arms] in a virtuous 

manner.” Gov’t Suarez Br. 14. 

C

All this means that Binderup and Suarez must 

distinguish themselves and their circumstances from those of 

persons not entitled to keep and bear arms because of their 

propensity for violence. And as the District Courts found, 

both men did so. Specifically, each is a misdemeanant 

convicted of a non-violent crime who has shown “that he is 

no more dangerous than a typical law-abiding citizen.” See 

Barton, 633 F.3d at 174. While we agree with the 

Government that the felony-misdemeanor distinction is 

“minor and often arbitrary,” especially since “numerous 

misdemeanors involve conduct more dangerous than many 

felonies,” Gov’t Binderup Br. 19 and Gov’t Suarez Br. 18 

(quoting Tennessee v. Garner, 471 U.S. 1, 14 (1985)), that is 

beside the point here. Our focus must remain on the 

legitimate (i.e., traditional) concern that justifies the 

dispossession of certain offenders: we cannot trust them not 

to commit violent crimes with firearms. The Government 

concedes that “the Supreme Court might find some felonies 

so tame and technical as to be insufficient to justify the 

ban,”21 Gov’t Binderup Br. 15 and Gov’t Suarez Br. 15 

 21 The Dissent acknowledges this view, but expresses 

confidence that “institutional considerations” will prevent 

particularly absurd disarmaments. Dissent at 61. In our view, 
42

(quoting United States v. Torres-Rosario, 658 F.3d 110, 113 

(1st Cir. 2011)), but it insists that Binderup’s and Suarez’s 

misdemeanors do not qualify. We disagree. 

For purposes of the traditional justifications animating 

§ 922(g)(1), both Binderup’s corruption of minors offense 

and Suarez’s licensing violation were nonviolent 

misdemeanors. In Barton, we described the violent crimes of 

the sort that motivated felon dispossession since 1938 in the 

following way: “For nearly a quarter century, § 922(g)(1) had 

a narrower basis for a disability, limited to those convicted of 

a ‘crime of violence.’ ‘Crimes of violence’ were commonly 

understood to include only those offenses ‘ordinarily 

committed with the aid of firearms.’” Barton, 633 F.3d at 173 

(quoting Marshall, 32 Harv. J.L. & Pub. Pol’y at 698, 702 

(2009)) (some internal quotation marks omitted); see also 

United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013) 

(noting that the “Federal Firearms Act of 1938 only restricted 

firearm possession for those individuals convicted of a ‘crime 

of violence,’ defined as ‘murder, manslaughter, rape, 

mayhem, kidnapping, burglary, housebreaking, and certain 

forms of aggravated assault—assault with intent to kill, 

commit rape, or rob; assault with a dangerous weapon, or 

assault with intent to commit any offense punishable by 

imprisonment for more than one year’”). Dispossession on the 

basis of a conviction for these sorts of crimes comports with 

the original public understanding of the scope of the right to 

keep and bear arms. 

 

questionable disarmaments raise questions of constitutional 

law. 
43

Neither Binderup’s improper relationship with an 

employee capable of consent nor Suarez’s possession of a 

handgun that he could have possessed lawfully had he 

acquired a license meets this description. Nor did their 

offenses involve any actual violent behavior. It is true that a 

small handful of States would classify Binderup’s offense as 

statutory rape22 or sexual abuse. And there are certainly 

circumstances in which an inappropriate and illegal 

relationship like Binderup’s might involve implicit or genuine 

violence. Such facts would make his a much different case. 

But as the District Court explained:

There is simply nothing in the record here 

which would support a reasonable inference that 

[Binderup] used any violence, force, or threat of 

force to initiate or maintain the sexual 

relationship with his seventeen-year-old 

employee. Moreover, there is no record 

evidence present here which would support a 

reasonable inference that [he] was convicted of 

any crime of violence (or that he even engaged 

in any violent or threatening conduct) before or 

after his November 1997 conviction for 

[c]orruption of minors.

 22 As the District Court pointed out, however, Black’s 

Law Dictionary “defines ‘statutory rape’ as ‘[u]nlawful 

sexual intercourse with a person under the age of consent (as 

defined by statute), regardless of whether it is against that 

person’s will.’” Binderup v. Holder, 2014 WL 4764424, at 

*24 (E.D. Pa. Sept. 25, 2014) (quoting Black’s Law 

Dictionary 1374 (9th ed. 2009)) (emphasis added).
44

Binderup, 2014 WL 4764424, at *22. Nor is there any “record 

evidence [that] supports a reasonable inference that he has a 

propensity to commit violent acts, sexual or otherwise.” Id. at 

*23. In a real stretch, the Government likens Binderup’s 

conduct to that which was felonized by a 1576 English statute 

that forbade “carnal[] knowl[edge]” of “any woman child 

under the age of ten years.” Gov’t Binderup Br. 15–16 

(quoting Mortimer Levine, A More Than Ordinary Case of 

“Rape,” 13 and 14 Elizabeth I, 7 Am. J. Legal Hist. 159, 163 

(1963)). Deplorable as it was, however, Binderup’s conduct 

involved a seventeen-year-old capable of consent,23 was not 

subject to criminal sanction at the time of the founding, and—

most importantly—did not involve violence, force, or threat 

of force. 

The nonviolent nature of Suarez’s offense is evident as 

well. The Government’s unremarkable observation that 

Maryland’s licensing requirement relates to public safety does 

not make Suarez’s offense a violent crime. It neither involved 

the actual use or threatened use of force, nor was it “closely 

related to violent crime” in the way that drug trafficking and 

receiving stolen weapons are. See Barton, 633 F.3d at 174. 

Heller characterized the Second Amendment as guaranteeing 

“the right of law-abiding, responsible citizens to use arms in 

defense of hearth and home.” 554 U.S. at 635 (emphasis 

added). The Government relies on the Fourth Circuit’s 

 23 Cf. Commonwealth v. Hughlett, 378 A.2d 326, 329 

(Pa. Super. 1977) (noting that “[i]t is axiomatic that females 

under the age of 16 may not legally assent to sexual acts of 

. . . any kind”).
45

decision in United States v. Pruess to argue that Suarez’s 

violation of a lawful, well-established firearm regulation 

demonstrates that he is not a responsible, law-abiding citizen. 

That reliance is misplaced. 

In Pruess, the Fourth Circuit rejected an as-applied 

challenge to § 922(g)(1) by a felon whose disqualifying 

convictions related to his prior sales of illegal arms, 

concluding that Pruess could not “rebut the presumption of 

lawfulness of the felon-in-possession prohibition as applied to 

him.” 703 F.3d 242, 246 (4th Cir. 2012). Although Pruess, 

like Suarez, had committed regulatory violations, his 

circumstances were dissimilar from Suarez’s in every other 

way. For example, Pruess had committed “repeated violations 

of the firearms laws, leading to at least twenty prior 

convictions,” and admitted that although he “did not intend to 

use them for violence himself . . . he believed that [certain] 

weapons and ammunition underlying his convictions were 

stolen.” Id. His repeated dealings in stolen, illegal weapons—

such as fully automatic AK-47’s and grenades—appropriately 

led the court to conclude that Pruess had committed acts 

“closely related to violent crime” and “flunk[ed] the ‘lawabiding responsible citizen’ requirement.” Id. at 244, 246. 

Suarez, by comparison, committed a nonviolent firearms 

licensing offense with respect to an otherwise lawful weapon 

decades ago, the circumstances of which were unassociated 

with violence.24 

 24 A number of other cases have applied Barton in 

rejecting as-applied challenges to § 922(g)(1). Like Pruess, 

the challengers in those cases have little in common with 

Suarez. See United States v. Moore, 666 F.3d 313, 319–20 

(4th Cir. 2012) (“[T]hree prior felony convictions for 
46

In addition to showing that neither their offenses nor 

the circumstances surrounding them involved any violence or 

threat of violence, Binderup and Suarez have also 

demonstrated that their subsequent behavior confirms their 

membership among the class of responsible, law-abiding 

citizens to whom Second Amendment protection extends. As 

the District Courts found, both men presented compelling 

evidence that they are responsible citizens, each with a job, a 

family, and a clean record since 1997 and 1998. Their home 

State has seen fit to reinstate their right to keep and bear arms. 

And though it’s by no means dispositive in Suarez’s case, the 

fact that the United States deems him upright enough to 

entrust him with the Nation’s secrets is further evidence that 

he is a “typical law-abiding citizen.” Barton, 633 F.3d at 174.

The Government has presented no evidence that either

Binderup or Suarez has been, or would be, dangerous, violent, 

or irresponsible with firearms.25 For all these reasons, the 

 

common law robbery and two prior convictions for assault 

with a deadly weapon on a government official clearly 

demonstrate that [Moore] is far from a law-abiding, 

responsible citizen.”); United States v. Smoot, 690 F.3d 215, 

221–22, 221 & n.8 (4th Cir. 2012) (32 arrests and 16 

convictions for offenses such as assault of a police officer, 

possession of cocaine with intent to distribute, and destruction 

of property); United States v. Woolsey, 759 F.3d 905, 909 

(8th Cir. 2014) (three prior felony convictions for aggravated 

assault and resisting arrest).

25 To be sure, Suarez’s 1998 DUI conviction was a 

dangerous act—but not in the sense of the traditional 

concerns motivating felon dispossession. See, e.g., Begay v. 

United States, 553 U.S. 137, 145 (2008) (holding that drunk 
47

District Courts did not err when they found § 922(g)(1) 

unconstitutional as applied to Binderup and Suarez.

D

The Government cites a number of recidivism studies 

as a final justification for permanently disarming Binderup 

and Suarez. It notes that felons commit violent crimes more 

frequently than nonfelons. See Bureau of Justice Statistics, 

U.S. Dep’t of Justice, Recidivism of Prisoners Released in 

1994 at 6 (2002) (finding that, within a population of 234,358 

federal inmates released in 1994, the rates of arrest for 

homicides were 53 times the national average). Relatedly, it 

highlights a 1994 study finding that approximately one in five 

offenders imprisoned for nonviolent crimes were rearrested 

for violent offenses within three years of their release. See 

Bureau of Justice Statistics Fact Sheet, Profile of Nonviolent 

Offenders Exiting State Prisons, tbl.11 (Oct. 2004), available 

at http://bjs.gov/content/pub/pdf/pnoesp.pdf. The 

Government’s second piece of evidence is a study comparing 

denials of handgun purchases to convicted felons with 

successful purchases by persons arrested but not convicted of 

a felony. The study found that the “denial of handgun 

purchases is associated with a reduction in risk for later 

criminal activity of approximately 20% to 30%.” Mona A. 

Wright et al., Effectiveness of Denial of Handgun Purchase to 

Persons Believed to Be at High Risk for Firearm Violence, 89 

Am. J. of Pub. Health 88, 89 (1999). 

 

driving is not a “violent felony” under the Armed Career 

Criminal Act because it does not involve “purposeful, violent, 

and aggressive conduct”). 
48

Finally, with respect to Binderup, it notes that “[s]ex 

offenders” (which Binderup is not) “present a high risk of 

recidivism.” Gov’t Binderup Br. 28 (citing Pennsylvania 

Dep’t of Corrections, Recidivism Report, 21 tbl. 12 (Feb. 8, 

2013), available at http://www.nationalcia.org/wpcontent/uploads/2013-PA-DOC-Recidivism-Report.pdf) 

(finding that 50 percent of persons convicted of statutory rape

and 60.2 percent of those convicted of “[o]ther [s]exual 

[o]ffenses” were rearrested or reincarcerated within three 

years of release from Pennsylvania prison) and U.S. Dep’t of 

Justice, Office of Justice Programs, Bureau of Justice 

Statistics Special Report: Recidivism of Prisoners Released in 

1994, 8 tbls.9, 15, available at 

http://www.bjs.gov/content/pub/pdf/rpr94.pdf (finding a 41.4 

percent rearrest rate among persons convicted for “other 

sexual assault”). And with respect to Suarez, the Government 

emphasizes that persons arrested for “weapons offenses” are 

rearrested at high rates within a few years. Gov’t Br. 30 & nn. 

10–11 (citing studies). In addition, it relies upon a study 

indicating that California handgun purchasers in 1977 “who 

had prior convictions for nonviolent firearm-related offenses 

such as carrying concealed firearms in public, but none for 

violent offenses,” were over four times more likely to be 

charged with a later violent offense than a person with no 

criminal history. See Garen J. Wintemute et al., Prior 

Misdemeanor Convictions as a Risk Factor for Later Violent 

and Firearm-Related Criminal Activity Among Authorized 

Purchasers of Handguns, 280 Am. Med. Ass’n 2083, 2086 

(1998). 

The Government presents this evidence in its argument 

that § 922(g)(1) satisfies intermediate scrutiny as applied to 
49

Binderup and Suarez.26 But as we have explained, that 

inquiry is inappropriate in this case. Applying some form of 

 26 Applying intermediate scrutiny, the Dissent agrees 

with the Government that—to the extent that Binderup and 

Suarez are protected by the Second Amendment—their 

permanent disarmament under § 922(g)(1) is a “‘reasonable 

fit’ to carry out the Government’s purpose[s].” Dissent at 65.

Should we be incorrect that § 922(g)(1) is categorically 

unconstitutional as applied to challengers who fall within the 

protective scope of the Second Amendment, we find Judge 

Ambro’s analysis more persuasive. Of course, the gap 

between Judge Ambro’s and the Dissent’s applications of 

Marzzarella’s “step two” assessment in this case highlights 

our concern that such interest-balancing exercises are too 

malleable when it comes to laws that eviscerate fundamental 

rights. Indeed, we fear that the winners and losers of 

“heightened” scrutiny contests are increasingly reflective of 

what rights—enumerated or not—“scrutinizing” judges favor 

or disfavor. As a Ninth Circuit judge presciently noted: 

“Judges know very well how to read the Constitution broadly 

when they are sympathetic to the right being asserted. . . . 

When a particular right comports especially well with our 

notions of good social policy, we build magnificent legal 

edifices on elliptical constitutional phrases—or even the 

white spaces between lines of constitutional text. But . . . 

when we’re none too keen on a particular constitutional 

guarantee, we can be equally ingenious . . . .” Silveira v. 

Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J., 

dissenting from denial of rehearing en banc of a panel 

decision adopting the “collective right” interpretation of the 

Second Amendment), panel decision abrogated by Heller, 

554 U.S. 570. 
50

means-end scrutiny in an as-applied challenge against an 

absolute ban—after it has already been established that the 

individual has a right to keep and bear arms—eviscerates that 

right via judicial interest balancing in direct contravention of 

Heller. See McDonald, 561 U.S. at 785 (“In Heller . . . we 

expressly rejected the argument that the scope of the Second 

Amendment right should be determined by judicial interest 

balancing.”). What matters, when it comes to a presumptively 

lawful regulation that eliminates the right to keep and bear 

arms, is whether Binderup and Suarez can distinguish 

themselves as responsible, law-abiding citizens in contrast to 

the class of persons historically understood to be excluded 

from Second Amendment protection.

Even if the Government’s generalized studies are 

recast as addressing the issue of scope,27 they still fall short. 

Perhaps the Government might use statistics to demonstrate 

that persons who commit certain nonviolent crimes have a 

high likelihood of violent recidivism, even decades later. But 

that conclusion would stretch the notion of “close 

association” and the historical roots of felon disarmament. 

Moreover, it would require untangling a number of 

complicating variables, such as the effects of incarceration. 

Recidivism studies of this type would be better suited to 

demonstrating a means-end fit for less restrictive firearm 

regulations on criminals otherwise protected by the Second 

Amendment (such as waiting periods or licensing 

 27 Judge Gardner astutely observed that “the 

contentions [that the Government] contend[s] these studies 

support are . . . pertinent to the analysis of [an] as-applied 

challenge under the Barton framework.” Binderup, 2014 WL 

4764424, at *26.
51

requirements). Either way, the studies cited by the 

Government don’t cut it. 

First, Binderup and Suarez were not convicted of 

felonies and have never been incarcerated, which renders 

irrelevant most of the Government’s studies. The Government 

argues that even criminals placed on probation rather than 

sent to prison have a heightened risk of recidivism. But the 

study it cites found that “[g]enerally, the risk of recidivism 

was highest during the first year after admission to 

probation,” and that “[a]s released prisoners and probationers 

age, they tend to exhibit lower rates of recidivism.” Iowa Div. 

of Crim. & Juvenile Justice Planning, Recidivism Among 

Iowa Probationers, at 2 (July 2005), available at 

http://publications.iowa.gov/15032/ (last visited Sept. 3, 

2016). Given Binderup’s and Suarez’s ages, the study cited 

by the Government would predict that they pose a negligible 

chance of being arrested for a violent crime and a zero 

percent chance of being arrested for a violent felony. Id. at 

39–40. Second, the denial-of-handgun survey was restricted 

to felons with extensive criminal records and conceded not 

only that the “modest benefit” it observed “may reflect the 

fact that the members of both study groups had extensive 

criminal records and therefore were at high risk for later 

criminal activity,” but also that “this study was too small to 

determine whether the differences occurred by chance.” 

Wright et al., 89 Am. J. of Pub. Health at 89. 

Finally, the Government’s sex-offender recidivism 

evidence paints with too broad a brush. Binderup’s 

misdemeanor was not classified as a sexual offense and did 

not trigger a duty to register as a sex offender. Compare 18 

Pa. Const. Stat. Ann. § 6301(a)(1)(i), with 18 Pa. Const. Stat. 

Ann. § 3103–3144. The report does not appear to cover 
52

corruption-of-minors recidivists and lumps Binderup together 

with an amalgam of persons guilty of a broad range of 

unspecified sexual offenses. See U.S. Dep’t of Justice, Office 

of Justice Programs, Bureau of Justice Statistics Special 

Report: Recidivism of Prisoners Released in 1994, 8 tbls.9, 

15. The same goes for the dated firearm-offense recidivism 

study the Government invokes against Suarez, which covers a 

wide, unspecified range of “nonviolent firearm-related 

offenses.” Wintemute, 280 Am. Med. Ass’n at 2086. 

Common sense dictates that violent recidivism rates are 

different for drug dealers carrying unlicensed firearms to 

protect their turf and ordinary citizens carrying unlicensed 

firearms for self-defense (behavior that several states do not 

even criminalize). See GAO, States’ Laws and Requirements 

for Concealed Carry Permits Vary Across Nation 8–9 (2012), 

available at http://www.gao.gov/assets/600/592552.pdf (last 

visited Sept. 3, 2016). 

Without more, the Government’s studies don’t support 

the application of § 922(g)(1) to Binderup and Suarez. Given 

the uncontroverted evidence they have presented 

distinguishing themselves from persons who are not entitled 

to keep and bear arms, the Government needs to offer more 

than regression analyses of recidivism (largely by felons who, 

unlike Binderup and Suarez, were incarcerated). An asapplied challenge ultimately rests on the question of whether 

“application [of a statute] to a particular person under 

particular circumstances deprive[s] that person of a 

constitutional right.” Marcavage, 609 F.3d at 273 (emphases 

added). Binderup and Suarez have presented unrebutted 

evidence that their offenses were nonviolent and now decades 

old, and that they present no threat to society, which places

them within the class persons who have a right to keep and 
53

bear arms. Accordingly, 18 U.S.C. § 922(g)(1) is 

unconstitutional as applied to them.

* * *

In the years since the Supreme Court’s decision in 

Heller, courts have had to wrestle with difficult Second 

Amendment questions. Although these questions can be 

challenging and the stakes high—the guarantee is one to 

deadly weapons, after all—it is no answer to say that 

legislatures “have near total control” over the right. Dissent at

61. That is not how constitutional rights work. Because their 

personal circumstances are distinguishable from those of the 

class of persons historically excluded from Second 

Amendment protections due to their propensity for violence, 

Daniel Binderup and Julio Suarez fall outside the proper 

scope of the felon dispossession statute. And their Second 

Amendment rights cannot be withdrawn merely because 

§ 922(g)(1) broadly serves the public good. Where the 

Second Amendment’s guarantees apply, as they do for 

Binderup and Suarez, “certain policy choices” are 

“necessarily” taken “off the table.” Heller, 554 U.S. at 636. 

Forever prohibiting them from possessing any firearm is one 

of those policy choices. 
FUENTES, Circuit Judge, concurring in part, dissenting in 

part, and dissenting from the judgments, with whom McKEE, 

Chief Judge, and VANASKIE, SHWARTZ, KRAUSE, 

RESTREPO, and ROTH, Circuit Judges, join.

_______________

The plaintiffs ask us to do something that no federal 

appellate court has done before: to hold that, even though 

they were both convicted of crimes punishable by multiple 

years in prison, Congress may not constitutionally prevent 

them from owning firearms. They ask us to do this 

notwithstanding a long tradition in this country of preventing 

criminals from owning guns, and despite the fact that the 

felon-in-possession statute, 18 U.S.C. § 922(g)(1), has been 

in force for over half a century.1

 Most troubling of all, they

 1 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 in interstate or foreign commerce, 

or possess in or affecting commerce, any firearm or 

ammunition; or to receive any firearm or ammunition which 

has been shipped or transported in interstate or foreign 

commerce.” 

Under 18 U.S.C. § 921(a)(20), “[t]he term ‘crime punishable 

by imprisonment for a term exceeding one year’ does not 

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.” We therefore refer to 

§ 922(g)(1) as the “felon-in-possession” ban. Courts 

commonly use this shorthand even though the statute itself 

does not use the term “felon,” and even though it includes 
2

ask us to saddle district court judges with a seemingly 

unending obligation to review as-applied challenges like 

theirs, even as they fail to provide us with any workable 

standards that would make such a regime administratively 

feasible or doctrinally coherent. 

Judges Ambro and Hardiman believe that the Second 

Amendment requires us to sustain the plaintiffs’ challenges, 

although they arrive at that conclusion along different routes 

and would shape our Second Amendment doctrine in 

divergent ways. By contrast, I would hold that the plaintiffs’ 

as-applied challenges to § 922(g)(1) must fail. The Second 

Amendment, important as it may be, does not prevent 

Congress from deciding that convicted criminals should not 

have access to firearms. We as a society require persons 

convicted of crimes to forfeit any number of rights and 

privileges, including the right to sit on a jury, the right to hold 

elective office, and the right to vote.2

 However much the 

plaintiffs may see unfairness in the fact that their law-abiding 

peers can legally own firearms and they cannot, that disparity 

is a consequence of their own unlawful conduct. Because I 

 

within its scope certain individuals who committed offenses 

labeled as “misdemeanors.” See, e.g., Logan v. United States, 

552 U.S. 23, 27 (2007).

2 Nothing herein should be interpreted as taking any position 

on the validity of statutes that deprive convicted felons of the 

right to vote. The issue of felon disenfranchisement is not 

presented here, and there may well be very different 

considerations that distinguish a felon’s loss of the right to 

vote from the loss of the right to possess a gun.
3

believe that the Second Amendment permits Congress to 

disarm persons who commit serious crimes, and because 

§ 922(g)(1) reasonably circumscribes what counts as such a 

crime, I would reject the plaintiffs’ as-applied challenges and 

reverse the judgments of the District Courts.

What’s more, even if we were to apply intermediate 

scrutiny to test the validity of § 922(g)(1), I would conclude 

that the statute is reasonably tailored to promote the 

substantial government interest of suppressing armed 

violence. Congress itself previously created and then 

defunded an administrative regime for providing 

individualized exceptions to the felon-in-possession ban.

3

When it terminated that program, it stated that the review of 

such applications was “a very difficult and subjective task 

which could have devastating consequences for innocent 

citizens if the wrong decision is made,”4 and warned that “too 

many of these felons whose gun ownership rights were 

restored went on to commit violent crimes with firearms.”5

 

These congressional judgments stand in stark contrast to the 

plaintiffs’ arguments. Congress has already experimented 

with a system of what were, in effect, as-applied challenges 

and concluded that it was unworkable and dangerous. 

I therefore concur with Judge Ambro’s opinion in part, 

dissent from it in part, and dissent from the majority’s

decision to affirm the judgments of the District Courts.

 3 See 18 U.S.C. § 925(c). 

4 S. Rep. No. 102-353, at 19 (1992).

5 H.R. Rep. No. 104-183, at 15 (1995).
4

I. The Current State of the Law Regarding 

Challenges to § 922(g)(1)

No federal appellate court has yet upheld a challenge, 

facial or as-applied, to the felon-in-possession statute. It may 

therefore be helpful to begin by summarizing the Supreme 

Court’s limited guidance on this issue and to explore how our 

sister circuits have applied that guidance in the context of 

§ 922(g)(1).

A. The Meaning of Heller

The Second Amendment provides: “A well regulated 

Militia, being necessary to the security of a free State, the 

right of the people to keep and bear Arms, shall not be 

infringed.”6 The touchstone in any Second Amendment case

is District of Columbia v. Heller,

7 the Supreme Court 

decision holding that the Second Amendment protects the 

“right of law-abiding, responsible citizens to use arms in 

defense of hearth and home.”8

 While Heller recognized an 

individual right to bear arms, it also explained that, “[l]ike 

most rights, the right secured by the Second Amendment is 

not unlimited.”9 The Court went on to provide us with 

important guidance about the Second Amendment’s scope: 

 6 U.S. Const. amend. II. 

7 554 U.S. 570 (2008).

8 Id. at 635.

9 Id. at 626.
5

[N]othing 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.10

In a footnote, the Court described these laws 

collectively as “presumptively lawful regulatory measures,” 

making clear that “[the] list does not purport to be 

exhaustive.”11 The Court also stated that people have the 

right to keep a loaded firearm in their homes for self-defense, 

provided that that they are “not disqualified from the exercise 

of Second Amendment rights.”12

Two interpretive questions about Heller therefore arise 

 10 Id. at 626–27.

11 Id. at 627 n.26. Elsewhere in the opinion, the Supreme 

Court described these regulations as “permissible” and as 

“exceptions” to the Second Amendment. Id. at 635. And two 

years later, in McDonald v. City of Chicago, 561 U.S. 742 

(2010), without otherwise expounding on Heller’s delineation 

of the scope of the Second Amendment right, the Court 

recapitulated the list of “longstanding regulatory measures” in 

Heller and “repeat[ed] [Heller’s] assurances” that such laws 

were not “imperil[ed]” by the Second Amendment. 

Id. at 786.

12 Heller, 554 U.S. at 635.
6

again and again. First, what does it mean to say that the 

felon-in-possession ban is “presumptively lawful”? Second, 

what does it mean to say that a person may only possess a 

firearm if he or she has not been “disqualified from the 

exercise of Second Amendment rights”? As we shall see, our 

sister circuits have already done yeoman’s work exploring 

these questions and suggesting possible answers. 

B. Four Circuits Have Rejected As-Applied 

Challenges Altogether

Four circuits—the Fifth, Ninth, Tenth, and Eleventh—

have concluded that as-applied challenges to § 922(g)(1) are 

not permissible, at least with respect to felons. 

We begin with the Fifth Circuit, which held years 

before Heller that the Second Amendment protects an 

individual right to bear arms.

13 In another pre-Heller case, 

United States v. Everist,

14 the Fifth Circuit held that the felonin-possession ban was constitutional with respect to both 

violent and nonviolent offenders.15 In the Fifth Circuit’s 

view, “[i]rrespective of whether his offense was violent in 

nature, a felon has shown manifest disregard for the rights of 

others” and “[h]e may not justly complain of the limitation on 

his liberty when his possession of firearms would otherwise 

 13 United States v. Emerson, 270 F.3d 203, 229

(5th Cir. 2001).

14 368 F.3d 517 (5th Cir. 2004).

15 See id. at 519 (“It is not inconsistent with the Second 

Amendment to limit the ability of convicted felons to keep 

and possess firearms.”).
7

threaten the security of his fellow citizens.”16 The issue of 

the constitutionality of § 922(g)(1) arose again after Heller in 

United States. v. Scroggins.

17 The Fifth Circuit there said that 

nothing in Heller caused it to question its prior conclusion in 

Everist that § 922(g)(1) is constitutional even as applied to 

non-violent felons.18

The Ninth Circuit addressed the issue of as-applied 

challenges in United States v. Vongxay.

19 The defendant 

there raised both a facial and an as-applied challenge to 

§ 922(g)(1). With respect to the defendant’s facial challenge, 

the Ninth Circuit concluded that “[n]othing in Heller can be 

read legitimately to cast doubt on the constitutionality of 

§ 922(g)(1).”20 With respect to the defendant’s as-applied 

challenge, Vongxay concluded that § 922(g)(1) is 

constitutional even as applied to non-violent felons. The 

Ninth Circuit articulated several rationales for this 

conclusion. First, it noted that the right to bear arms could be 

restricted at common law. Second, it observed “that to date 

 16 Id.

17 599 F.3d 433 (5th Cir. 2010). 

18 Id. at 451; see also United States v. Anderson, 559 F.3d 

348, 352 (5th Cir. 2009) (stating that “Heller provides no 

basis for reconsidering” whether § 922(g) is constitutional)

(citing United States v. Darrington, 351 F.3d 632, 634 

(5th Cir. 2003) (“Section 922(g)(1) does not violate the 

Second Amendment.”)).

19 594 F.3d 1111 (9th Cir. 2010).

20 Id. at 1114. 
8

no court that has examined Heller has found 

18 U.S.C. § 922(g) constitutionally suspect.”21 Third, it 

stated that “[d]enying felons the right to bear arms 

is . . . consistent with the explicit purpose of the Second 

Amendment to maintain ‘the security of a free State.’”22 To 

that end, “[f]elons are often, and historically have been, 

explicitly prohibited from militia duty.”23 Lastly, it stated 

that “most scholars of the Second Amendment agree that the 

right to bear arms was ‘inextricably . . . tied to’ the concept of 

a ‘virtuous citizen[ry]’” and that “‘the right to bear arms does 

not preclude laws disarming the unvirtuous citizens,’” 

including criminals.24 

A recent Ninth Circuit decision, United States v. 

Phillips,

25 re-affirmed Vongxay, although with some 

 21 Id. at 1117 (internal quotation marks omitted). 

22 Id. (quoting U.S. Const. amend. II). 

23 Id.

24 Id. at 1118 (alteration in original) (quoting Don B. Kates, 

Jr., The Second Amendment: A Dialogue, 49 Law & 

Contemp. Probs. 143, 146 (1986)). As discussed infra, the 

strength of this historical interpretation has since been 

challenged by other scholars. See, e.g., Carlton F.W. Larson, 

Four Exceptions in Search of a Theory: District of 

Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 

1371, 1374−75 (2009) (analyzing sources cited by earlier 

scholars); C. Kevin Marshall, Why Can’t Martha Stewart 

Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 714 (2009).

25 --- F.3d ---, 2016 WL 3675450 (9th Cir. July 6, 2016).
9

skepticism. The defendant there argued that his prior 

criminal conviction could not support disarmament under 

§ 922(g)(1) because his crime, which consisted of concealing 

an ongoing felony from federal officials, was “a non-violent, 

passive crime of inaction.”26 The Ninth Circuit said that 

“there may be some good reasons to be skeptical about the 

correctness of the current framework of analyzing the Second 

Amendment rights of felons,”27 but it nonetheless concluded 

that Heller and Vongxay foreclosed the defendant’s 

argument.28

The Tenth Circuit rejected a constitutional challenge to 

§ 922(g)(1) in United States v. McCane.

29 It focused on the 

fact that the Supreme Court “explicitly stated in Heller that 

‘nothing in our opinion should be taken to cast doubt on 

 26 Id. at *2 (internal quotation marks omitted). 

27 Id. at *5. 

28 Id. at *4 (“[A]ssuming the propriety of felon firearm 

bans—as we must under Supreme Court precedent and our 

own—there is little question that Phillips’s predicate 

conviction . . . can constitutionally serve as the basis for a 

felon ban.”); see also Van Der Hule v. Holder, 759 F.3d 

1043, 1050–51 (9th Cir. 2014) (“We addressed whether 

§ 922(g)(1) violates the Second Amendment in [Vongxay]

and determined that it did not.”). But see United States v. 

Duckett, 406 F. App’x 185, 187 (9th Cir. 2010) (Ikuta, J., 

concurring) (stating that it might be constitutionally 

problematic to prevent non-violent felons from possessing 

firearms). 

29 573 F.3d 1037 (10th Cir. 2009).
10

longstanding prohibitions on the possession of firearms by 

felons.’”30 While Judge Tymkovich complained in 

concurrence that “[t]he Court’s summary treatment of felon 

dispossession in dictum forecloses the possibility of a more 

sophisticated interpretation of § 922(g)(1)’s scope,”31 the 

Tenth Circuit has not revisited the issue. To the contrary, it

said in a later case that it had “already rejected the notion that 

Heller mandates an individualized inquiry concerning felons 

pursuant to § 922(g)(1).”32

Lastly, the Eleventh Circuit upheld the 

constitutionality of § 922(g)(1) in United States v. Rozier.

33

That opinion focused on the Supreme Court’s language in 

Heller regarding “disqualifi[cation] from the exercise of 

Second Amendment rights.”34 Interpreting this language, the 

Eleventh Circuit concluded that one of Heller’s implied 

premises was that certain persons can be permissibly 

disqualified from exercising their Second Amendments rights 

altogether. The court went on to say that Heller’s list of

“longstanding prohibitions” indicated that “statutes 

disqualifying felons from possessing a firearm under any and 

all circumstances do not offend the Second Amendment.”35 

As a result, it concluded that “statutory restrictions of firearm 

 30 Id. at 1047 (quoting Heller, 554 U.S. at 626). 

31 Id. at 1049. 

32 In re United States, 578 F.3d 1195, 1200 (10th Cir. 2009).

33 598 F.3d 768 (11th Cir. 2010).

34 Id. at 770 (quoting Heller, 554 U.S. at 635).

35 Id. at 771 (emphasis added). 
11

possession, such as § 922(g)(1), are a constitutional avenue to 

restrict the Second Amendment right of certain classes of 

people,” and that “Rozier, by virtue of his felony conviction, 

falls within such a class.”36 

C. Three Circuits Are Wary of As-Applied 

Challenges 

The First Circuit has expressed skepticism about asapplied challenges to the federal firearms laws, although it 

has not foreclosed such challenges. In United States v. 

Torres-Rosario,

37 the First Circuit considered a defendant’s 

as-applied challenge to his conviction under § 922(g)(1). The 

defendant’s prior convictions were for possession with intent 

to distribute and distribution of controlled substances, and the 

court concluded that the defendant’s challenge failed because 

“drug dealing is notoriously linked to violence.”38 In 

reaching that conclusion, the First Circuit stated that the 

“Supreme Court may be open to claims that some felonies do 

not indicate potential violence and cannot be the basis for 

applying a categorical ban,” and likewise “might even be 

open to highly fact-specific objections.”39 Even so, the court 

observed that permitting “such an approach, applied to 

countless variations in individual circumstances, would 

obviously present serious problems of administration, 

 36 Id.

37 658 F.3d 110 (1st Cir. 2011). 

38 Id. at 113. 

39 Id.
12

consistency and fair warning.”40 The First Circuit thus

suggested that defendants could bring as-applied challenges, 

even while recognizing the difficulties that considering such 

challenges would create. 

The Second Circuit upheld the constitutionality of 

§ 922(g)(1) in United States v. Bogle.

41 It did not analyze the 

issue in great depth. Instead, it pointed to Heller’s language 

about “longstanding prohibitions” and “join[ed] every other 

circuit to consider the issue in affirming that § 922(g)(1) is a 

constitutional restriction on the Second Amendment rights of 

convicted felons.”42 The court did not distinguish between 

facial and as-applied challenges.43

Meanwhile, the jurisprudence of the Sixth Circuit 

appears to be in flux. That court dealt with challenges to 

§ 922(g)(1) in two non-precedential opinions. In one, United 

States v. Frazier,

44 the court rejected a challenge to 

§ 922(g)(1) on the view that “congressional regulation of 

 40 Id.

41 717 F.3d 281 (2d Cir. 2013). 

42 Id. at 281–82. 

43 Bogle did not raise an as-applied challenge to § 922(g)(1) 

on the basis of the Second Amendment. Even so, the Second 

Circuit’s broad language and its citations to numerous courts 

that have considered such challenges suggest that it intended 

to broadly approve restrictions on the Second Amendment 

rights of individuals who are not law-abiding.

44 314 F. App’x 801 (6th Cir. 2008).
13

firearms [remained] constitutional” even post-Heller.

45 In 

another, United States v. Khami,

46 the court recognized the 

theoretical possibility of an as-applied challenge to 

§ 922(g)(1) but said that, on the facts before it, “[e]ven an as 

applied challenge would be difficult . . . to mount.”47 A later 

precedential opinion, United States v. Carey,

48 stated flatly 

that “prohibitions on felon possession of firearms do not 

violate the Second Amendment.”49 And most recently, the 

Sixth Circuit has considered the issue of whether the federal 

statute making it unlawful to possess a firearm after having 

been committed to a mental institution, 18 U.S.C. 

§ 922(g)(4), permits as-applied challenges. That issue, which 

raises a doctrinal conundrum similar to the one we confront 

here, has also triggered en banc review.50

 45 Id. at 807. 

46 362 F. App’x 501 (6th Cir. 2010).

47 Id. at 508.

48 602 F.3d 738 (6th Cir. 2010).

49 Id. at 741. 

50 Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308 

(6th Cir. 2014), reh’g en banc granted, opinion vacated 

(Apr. 21, 2015).
14

D. Four Circuits Permit As-Applied Challenges 

The Fourth,51 Seventh,52 Eighth,53 and D.C. Circuits54

have left the door open to a successful as-applied challenge. 

Even so, none of these courts has yet upheld one. 

In many instances, these courts have also narrowed the 

 51 United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012) 

(“We do not foreclose the possibility that a case might exist in 

which an as-applied Second Amendment challenge to 

§ 922(g)(1) could succeed.”).

52 Baer v. Lynch, 636 F. App’x 695, 698 (7th Cir. 2016) 

(“We have not decided if felons historically were outside the 

scope of the Second Amendment’s protection and instead 

have focused on whether § 922(g)(1) survives intermediate 

scrutiny. As to violent felons, the statute does survive 

intermediate scrutiny, we have concluded, because the 

prohibition on gun possession is substantially related to the 

government’s interest in keeping those most likely to misuse 

firearms from obtaining them.” (internal citations omitted)); 

United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) 

(“Heller referred to felon disarmament bans only as 

‘presumptively lawful,’ which, by implication, means that 

there must exist the possibility that the ban could be 

unconstitutional in the face of an as-applied challenge.”).

53 United States v. Woolsey, 759 F.3d 905 (8th Cir. 2014).

54 Schrader v. Holder, 704 F.3d 980, 991–92

(D.C. Cir. 2013) (rejecting as-applied challenge to 

§ 922(g)(1) brought by common-law misdemeanants as a 

class).
15

universe of as-applied challenges that are permissible. The 

Fourth Circuit, which has repeatedly said that it might affirm

an as-applied challenge in the right circumstances, has 

rejected the proposition that Congress may disarm only 

persons who commit violent crimes. In United States v. 

Pruess,

55 the court considered a challenge to § 922(g)(1) 

brought by a firearms dealer and collector who also had over 

twenty prior convictions for failing to comply with various 

gun laws, although none of those convictions were for violent 

crime. Pruess held “that application of the felon-inpossession prohibition to allegedly non-violent 

felons . . . does not violate the Second Amendment.”56

There is also some ambiguity in the jurisprudence of 

the Eighth Circuit. That court upheld the facial 

constitutionality of § 922(g)(1) in United States v. Seay.

57 It 

also addressed as-applied challenges to § 922(g)(1) in United 

States v. Woolsey,

58 where it cited one of its prior non-

 55 703 F.3d 242 (4th Cir. 2012).

56 Id. at 247. 

57 620 F.3d 919 (8th Cir. 2010). Seay technically addressed 

§ 922(g)(3), which prohibits gun possession by drug users. In 

reviewing the Eighth Circuit’s precedents, Seay stated that a 

prior non-precedential opinion upholding the constitutionality 

of § 922(g)(1) was correct. See id. at 924 (citing United 

States v. Irish, 285 F. App’x 326 (8th Cir. 2008)). The Eighth 

Circuit rejected a facial challenge to § 922(g)(1) a second 

time in United States v. Joos, 638 F.3d 581, 586

(8th Cir. 2011). 

58 759 F.3d 905.
16

precedential opinions, United States v. Brown,

59 that in turn 

relied on our decision in United States v. Barton.

60 Following 

Barton’s logic, Woolsey rejected a defendant’s as-applied 

challenge to § 922(g)(1) because he had not “presented ‘facts 

about himself and his background that distinguish his 

circumstances from those of persons historically barred from 

Second Amendment protections.’”61 

Even so, another Eighth Circuit decision, United 

States v. Bena,

62 suggests that as-applied challenges might 

rest on shaky ground. Bena involved a facial challenge to 

§ 922(g)(8), which bars possession of firearms by those 

subject to a restraining order. In addressing that challenge, 

Bena stated that the Heller’s list of “longstanding 

prohibitions” suggested that the Supreme Court “viewed 

[those] regulatory measures . . . as presumptively lawful 

because they do not infringe on the Second Amendment 

right.”63 In support of that conclusion, the court cited our 

own analysis in United States v. Marzzarella.

64 The Eighth 

Circuit also pointed to the fact that, as a historical matter, 

several states viewed the right to bear arms as limited to 

 59 Id. at 909 (citing Brown, 436 F. App’x 725 

(8th Cir. 2011)).

60 633 F.3d 168 (3d Cir. 2011). 

61 Woolsey, 759 F.3d at 909 (quoting Brown, 436 F. App’x 

at 726).

62 664 F.3d 1180 (8th Cir. 2011). 

63 Id. at 1183. 

64 614 F.3d 85, 91 (3d Cir. 2010).
17

peaceable, responsible citizens. The court expressly declined 

to consider the question of “whether § 922(g)(8) would be 

constitutional as applied to a person who is subject to an 

order that was entered without evidence of dangerousness.”65

Meanwhile, the D.C. Circuit considered the issue of 

as-applied challenges in Schrader v. Holder.

66 In that case, 

the court concluded that the plaintiffs had brought, at most, a 

challenge to § 922(g)(1) “as applied to common-law 

misdemeanants as a class,” not as applied to Shrader

individually.67 The court easily rejected that challenge. It 

stated that the “plaintiffs [had] offered no evidence that 

individuals convicted of [common-law misdemeanors] pose 

an insignificant risk of future armed violence.”68 It also

adopted the view that even if “some common-law 

misdemeanants . . . may well present no such 

risk . . . ‘Congress is not limited to case-by-case exclusions of 

persons who have been shown to be untrustworthy with 

weapons, nor need these limits be established by evidence 

 65 Bena, 664 F.3d at 1185.

66 704 F.3d 980 (D. C. Cir. 2013). 

67 Id. at 991.

68 Id. at 990. 
18

presented in court.’”69

* * *

As this survey of cases demonstrates, federal judges

face an almost complete absence of guidance from the 

Supreme Court about the scope of the Second Amendment 

right. Even so, only four of our sister courts have clearly 

stated that as-applied challenges to § 922(g)(1) are even 

permissible. In taking the further step of upholding such a 

challenge, we stand entirely alone.

With this background in mind, it is possible to explain 

where I agree—and disagree—with my colleagues.70 

 69 Id. at 990–91 (quoting United States v. Skoien, 614 F.3d 

638, 641 (7th Cir. 2010) (en banc)) (emphasis in original). 

Schrader suggested that, had the plaintiffs properly raised an 

as-applied challenge by arguing “that the statute is invalid as 

applied to Schrader specifically,” then “Heller might well 

dictate a different outcome” than the decision the court 

reached with respect to the class-wide challenge. Id. at 991.

70 As an initial matter, I agree with both Judge Ambro and 

Judge Hardiman that the plaintiffs’ statutory arguments are 

unavailing. The two statutory provisions here are 

straightforward: § 922(g)(1) makes it unlawful for anyone to 

possess a firearm after having been convicted of a crime 

punishable by more than one year in prison, and 

§ 921(a)(20)(B) removes from that prohibition persons 

convicted of misdemeanors with a maximum punishment of 

two years or less. 
19

II. Marzzarella Step-One and Exclusions from the 

Second Amendment Right 

Our decision in Marzzarella establishes a two-step test 

for assessing challenges to the constitutionality of statutes 

under the Second Amendment: 

First, we ask whether the challenged law 

imposes a burden on conduct falling within the 

scope of the Second Amendment’s guarantee. 

If it does not, our inquiry is complete. If it 

does, we evaluate the law under some form of 

means-end scrutiny. If the law passes muster 

under that standard, it is constitutional. If it 

fails, it is invalid.71

I agree with Judge Ambro that Marzzarella provides 

the correct framework for assessing challenges to the 

constitutionality of § 922(g)(1). I also agree with him that, at 

Marzzarella step-one, persons who commit serious crimes are 

 

In other words, the only persons subject to § 922(g)(1) are 

(i) felons and (ii) misdemeanants whose crimes are 

punishable by more than two years in prison. I therefore join 

Parts I and II of Judge Ambro’s opinion. 

71 Marzzarella, 614 F.3d at 89 (internal citation and footnote 

omitted). 
20

disqualified from asserting their Second Amendment rights.

72

Unfortunately, Judge Ambro and I disagree over how 

to decide whether any particular crime is serious enough to 

cause a loss of firearm rights. Judge Ambro believes that the 

category of “serious crime” is amorphous. While some 

crimes may be serious by definition, including those in which

the actual or attempted use of violence is an element of the 

offense,73 other crimes may be serious—or not—depending 

on the circumstances. In Judge Ambro’s view, the 

seriousness inquiry therefore requires district courts to engage 

in person-specific assessments based on the facts of any 

particular case. By contrast, I would hold that Heller itself 

tells us that felons are disqualified from exercising their 

Second Amendment rights. Because there is no principled 

basis, at least in this context, for distinguishing felons from 

misdemeanants who commit crimes punishable by more than 

two years in prison, all crimes currently within § 922(g)(1)’s 

scope are serious by definition. I would therefore hold that 

the plaintiffs’ challenges fail at Marzzarella step-one, full 

stop.

 72 Accordingly, I join Parts III.A, III.B, III.C.1, III.C.2, and 

III.C.3.a of Judge Ambro’s opinion in their entirety. I would 

also vote to overrule Barton, at least insofar as it states that 

as-applied challenges to § 922(g)(1) are permissible as that 

statute is currently codified. In my view, they are not. 

Chief Judge McKee, Judge Shwartz, and Judge Restrepo

join only Parts I and II of Judge Ambro’s opinion. (See 

Ambro Op. Typescript at 6–7 n.1.)

73 See Ambro Op. Typescript at 24, 31.
21

A. Congress May Permissibly Disarm Felons at 

Marzzarella Step-One 

In applying step-one of the Marzzarella analysis, we 

ask whether § 922(g)(1) burdens any Second Amendment 

right. At least as to the prohibition on felons possessing 

firearms, Heller and Marzzarella answer that question

directly. 

The Heller Court was careful to tell us that “nothing in

[its] opinion should be taken to cast doubt on longstanding 

prohibitions on the possession of firearms by felons.”74 It

also referred to the felon-in-possession ban as one of several 

“presumptively lawful regulatory measures.”75 In 

Marzzarella, we concluded that the “better reading” of Heller 

was that these measures were complete “exceptions to the 

right to bear arms.”76 On this view, felons do not simply 

have narrower Second Amendment rights than their lawabiding counterparts; they “are disqualified from exercising 

their Second Amendment rights” altogether.

77 While felons 

certainly have an interest in using firearms “for defense of 

hearth and home,” Marzzarella stated that “a felony 

 74 554 U.S. at 626.

75 Id. at 627 n.26.

76 614 F.3d at 91 (emphasis added).

77 Id. at 91–92; see also Jeff Golimowski, Note, Pulling the 

Trigger: Evaluating Criminal Gun Laws in a Post-Heller

World, 49 Am. Crim. L. Rev. 1599, 1616 (2012) (contending 

that felons forfeit Second Amendment rights through 

affirmative decisions to violate the social contract).
22

conviction disqualifies an individual from asserting that 

interest.”78 

At the time Marzzarella came down, this reading of 

Heller was in accord with the views of several of our sister 

courts.

79 Other circuits have since adopted the same 

position,

80 and we ourselves have recommitted to it.81 

Apart from the text of Heller itself, history and 

tradition also support Marzzarella’s conclusion that the felonin-possession ban is a permissible exclusion from the Second 

Amendment right. Without “engaging in a round of full-

 78 614 F.3d at 92.

79 See Rozier, 598 F.3d at 770–71 (“Prior to taking into 

account Rozier’s purpose for possessing the handgun, we 

must determine whether he is qualified to possess a 

handgun.”); Vongxay, 594 F.3d at 1113 (“[F]elons are 

categorically different from the individuals who have a 

fundamental right to bear arms, and Vongxay’s reliance on 

Heller is misplaced.” (footnote omitted)).

80 See, e.g., Bena, 664 F.3d at 1183 (“It seems most likely 

that the Supreme Court viewed the regulatory measures listed 

in Heller as presumptively lawful because they do not 

infringe on the Second Amendment right.”). 

81 See Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013)

(reiterating that “certain longstanding regulations are 

‘exceptions’ to the right to keep and bear arms, such that the 

conduct they regulate is not within the scope of the Second 

Amendment”).
23

blown historical analysis,”82 it suffices for now to say that

numerous courts have reviewed the historical record and 

concluded that Founding-era sources support the 

constitutionality of § 922(g)(1) even as applied to non-violent 

felons.

83 

With respect to the Founding generation, the Eighth 

Circuit points us to Blackstone, who “explained that English 

subjects enjoyed a right to have arms for their defense, 

‘suitable to their condition and degree’ and ‘under due 

restrictions.’”84 As to the Founders themselves, several 

judges—including Judge Hardiman—have recounted how

“[s]hortly after the Pennsylvania ratifying convention for the 

original Constitution . . . the Anti–Federalist minority 

recommended the following amendment: ‘That the people 

have a right to bear arms for the defense of themselves and 

 82 Id.

83 See, e.g., Bena, 664 F.3d at 1183 (“Scholarship suggests 

historical support for a common-law tradition that permits 

restrictions directed at citizens who are not law-abiding and 

responsible.”); Vongxay, 594 F.3d at 1113 (“[M]ost scholars 

of the Second Amendment agree that the right to bear arms 

‘was . . . inextricably tied to’ the concept of ‘virtuous 

citizen[ry]’ . . . .” (all alternations except first in original) 

(quoting Kates, supra note 24)); Emerson, 270 F.3d 

at 226 n.21 (citing sources for the proposition that “the 

Second Amendment does not prohibit legislation such as [the 

felon-in-possession ban]”).

84 Bena, 664 F.3d at 1183 (quoting 1 William Blackstone, 

Commentaries 139).
24

their own state, or the United States . . . and no law shall be 

passed for disarming the people or any of them, unless for 

crimes committed, or real danger of public injury from 

individuals.’”85 Heller identified this proposal as a 

“precursor” that was “highly influential” to the ratification of 

the Second Amendment.86

The Seventh Circuit has also done helpful work 

mining the historical sources. Sitting en banc, the court 

highlighted the fact that, during the Founding era, “[m]any of 

the states, whose own constitutions entitled their citizens to 

be armed, did not extend this right to persons convicted of 

crime.”87 In United States v. Yancey,

88 the court stated that 

“[w]hatever the pedigree of the rule against even nonviolent 

felons possessing weapons . . . most scholars of the Second 

Amendment agree that the right to bear arms was tied to the 

 85 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, 

Tobacco, Firearms, & Explosives, 700 F.3d 185, 201 

(5th Cir. 2012) (emphasis removed) (quoting Saul Cornell, 

Commonplace or Anachronism: The Standard Model, the 

Second Amendment, and the Problem of History in 

Contemporary Constitutional Theory, 16 Const. Comment. 

221, 233 (1999)); see also Hardiman Op. Typescript at 24

(discussing the same proposal).

86 554 U.S. at 604. 

87 Skoien, 614 F.3d at 640 (citing Stephen P. Halbrook, The 

Founders’ Second Amendment 273 (2008); Marshall, Why 

Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. 

Pol’y at 700–13).

88 621 F.3d 681 (7th Cir. 2010).
25

concept of a virtuous citizenry and that, accordingly, the 

government could disarm ‘unvirtuous citizens.’”89 Yancey 

also noted that, “while felon-in-possession laws could be 

criticized as ‘wildly overinclusive’ for encompassing 

nonviolent offenders, every state court in the modern era to 

consider the propriety of disarming felons under analogous 

state constitutional provisions has concluded that step to be 

permissible.”90

The federal statutory ban on convicts possessing 

firearms itself has a lengthy pedigree. In 1932, Congress 

passed a law imposing restrictions on the possession of 

machine guns, sawed-off shotguns, and certain other weapons 

in the District of Columbia.91 That law also made it illegal

for any “person who has been convicted in the District of 

Columbia or elsewhere of a crime of violence [to] own or 

have in his possession a pistol, within the District of 

 89 Id. at 684–85 (considering a challenge to 18 U.S.C.

§ 922(g)(3), which makes it unlawful to possess firearms as a 

person who is “an unlawful user of or addicted to any 

controlled substance”).

90 Id. at 685 (quoting Adam Winkler, Scrutinizing the 

Second Amendment, 105 Mich. L. Rev. 683, 721 (2007)). 

91 Act of July 8, 1932, ch. 465, § 14, 47 Stat. 650, 654.
26

Columbia.”92 In 1938, Congress passed a broader statute—

the Federal Firearms Act—that made it unlawful for those 

who had been convicted of a “crime of violence” to “receive 

any firearm or ammunition which has been shipped or 

transported in interstate or foreign commerce.”93 Congress 

removed the “crime of violence” limitation in 196194 and 

“changed the ‘receipt’ element of the 1938 law to 

‘possession’ [in 1968], giving § 922(g)(1) its current form.”95 

The stated purpose of the 1968 revision was “to curb crime 

by keeping ‘firearms out of the hands of those not legally 

entitled to possess them because of age, criminal background, 

or incompetency.’”96

The development of § 922(g) also evinces Congress’s 

desire to keep guns away from persons other than those 

 92 Id. § 3, 47 Stat. at 651. The 1932 Act defined a “crime of 

violence” as “[m]urder, manslaughter, rape, mayhem, 

maliciously disfiguring another, abduction, kidnaping, 

burglary, housebreaking, larceny, any assault with intent to 

kill, commit rape, or robbery, assault with a dangerous 

weapon, or assault with intent to commit any offense 

punishable by imprisonment in the penitentiary,” or “an 

attempt to commit any of the same.” Id. § 1, 47 Stat. at 650. 

93 Act of June 30, 1938, ch. 850, §§ 1(6), 2(f), 52 Stat. 1250, 

1250–51.

94 Act of Oct. 3, 1961, Pub. L. No. 87-342, 75 Stat. 757.

95 Skoien, 614 F.3d at 640 (statutory citation truncated). 

96 Huddleston v. United States, 415 U.S. 814, 824 (1974) 

(quoting S. Rep. No. 90–1501, at 22 (1968)).
27

whose past unlawful conduct indicates a likelihood of future 

dangerousness. The current iteration of § 922(g) prohibits 

nine groups of persons from possessing guns, including 

fugitives, drug addicts, persons previously committed to 

mental institutions, persons under a court order for 

threatening a partner or child, and persons with misdemeanor 

convictions for crimes of domestic violence. The other 

prohibitions of § 922(g), however, rest on a slightly different 

rationale. In 1968, Congress expanded what is now § 922(g) 

to cover undocumented or non-immigrant aliens, persons 

dishonorably discharged from the military, and persons who 

have renounced their U.S. citizenship. These additions, 

which were “enacted in response to the wave of political and 

civil rights assassinations during the 1960s,”97 reflected

Congress’s judgment that persons within these categories 

“may not be trusted to possess a firearm without becoming a 

threat to society.”98 Rather than disarm persons based on a 

rigid link between past violent acts and future dangerousness, 

these restrictions—consistent with the tradition at the 

Founding of tying gun rights to civic virtue—disarm groups 

whose members Congress believes are unable or unwilling to 

conduct themselves in conformity with the responsibilities of 

 97 United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984).

98 Scarborough v. United States, 431 U.S. 563, 572 (1977) 

(quoting 114 Cong. Rec. 14,773 (1968)); see also Stevens v. 

United States, 440 F.2d 144, 146–49, 152–70 (6th Cir. 1971) 

(recounting the relevant legislative history).
28

citizenship.

99

To be fair, one might quibble with this kind of 

historical explanation for § 922(g)(1)’s scope. With regard to 

the statute itself, one might ask if 50 years is a long enough 

period of time to entrench a constitutional tradition—

although several courts have said as much when assessing 

Second Amendment challenges.100 And with respect to 

Founding-era sources, some judges have expressed the view 

that the historical record is too infirm a platform on which to 

rest hard-and-fast decisions about the scope of the Second 

 99 I note that permitting plaintiffs to bring as-applied 

challenges to § 922(g)(1) opens the door to similar challenges 

under these other provisions. For example, once a plaintiff 

can challenge application of the felon-in-possession ban on 

the ground that his or her prior crime does not indicate a 

likelihood of future dangerousness, the next case might 

involve an as-applied challenge to § 922(g)(6), the provision 

concerning dishonorable discharge from the Armed Forces,

for the same reason.

100 See, e.g., Pruess, 703 F.3d at 245 n.1 (rejecting the 

argument that the ban on non-violent felons possessing 

firearms is not “longstanding,” since it has been in place “for 

more than half a century”).
29

Amendment right.101 Our Court’s multiple opinions in this 

case illustrate just how contested Founding-era historiography 

can be. 

Even so, my review of the relevant history leads me to 

conclude that § 922(g)(1)’s categorical ban on felons 

possessing firearms is rooted deeply enough in our tradition

to operate as a bona fide disqualification from the Second 

Amendment right. 

B. Misdemeanors Within § 922(g)(1)’s Scope 

Are Functionally Felonies

Having established that felons are categorically 

disqualified from asserting their Second Amendment rights, 

the next question is whether misdemeanants, like the 

plaintiffs, are situated differently. The plaintiffs insist that 

they are. In their view, “[w]hen Heller spoke of ‘felons,’ it 

 101 See, e.g., United States v. Chester, 628 F.3d 673, 680–81 

(4th Cir. 2010) (stating that the relevant historical scholarship 

is, at best, “not conclusive” as to how the Founding 

generation treated felon dispossession); Skoien, 614 F.3d 

at 650 (Sykes, J., dissenting) (“[S]cholars disagree about the 

extent to which felons—let alone misdemeanants—were 

considered excluded from the right to bear arms during the 

founding era.”); McCane, 573 F.3d at 1048 (Tymkovich, J., 

concurring) (“But more recent authorities have not found 

evidence of longstanding dispossession laws. On the 

contrary, a number have specifically argued such laws did not 

exist and have questioned the sources relied upon by the 

earlier authorities.”).
30

spoke of a traditional common-law classification known to 

the Framers, not a late-twentieth century statute including 

some vast (if disputed) number of misdemeanor offenses.”102 

Judge Ambro is sympathetic to that notion.103 I am not. 

As an initial matter, nothing in Heller suggests that the 

felony-misdemeanor distinction is a meaningful one. It is 

true, of course, that Heller’s list of “presumptively lawful 

regulatory measures” includes “longstanding prohibitions on 

the possession of firearms by felons.”104 One could perhaps 

read those words and conclude that the Supreme Court was

purposefully placing felons—and only felons—in the 

category of persons who may be permissibly disqualified 

from the exercise of their Second Amendment rights. Still, 

one could just as easily conclude that the Court was using 

shorthand to refer to § 922(g)(1) as a whole. After all, the 

Court was careful elsewhere in Heller to say that the Second 

Amendment protects “the right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.”105 

Neither felons nor misdemeanants are the kinds of “law-

 102 Binderup Br. at 55–56.

103 See, e.g., Ambro Op. Typescript at 30–31 (“Congress 

may not overlook entirely the misdemeanor label, which, in 

the Second Amendment context, is also important.”).

104 554 U.S. at 626–27 & n.26.

105 Id. at 635. 
31

abiding” citizens whose rights Heller vindicated.106

More fundamentally, the notion that there is a sharp

distinction between felonies and misdemeanors, at least 

within the universe of crimes covered by § 922(g)(1), is not 

correct. Our own Court has long recognized that, in the 

modern world, a “felony” is any crime punishable by at least 

one year and one day in prison.107 And the Supreme Court 

has explained that, in contemporary law, “the distinction

[between felonies and misdemeanors] is minor and often 

arbitrary.”108 The kinds of misdemeanors within the scope of 

§ 922(g)(1)—those punishable by more than two years in 

prison—are effectively felonies in all but name.109

 106 Heller also underscored that its list of longstanding 

prohibitions “does not purport to be exhaustive,” while 

emphasizing that the list flows from “historical 

justifications.” Id. at 627 n.26, 635. This guidance suggests a 

more practical approach than focusing on the word “felon” 

alone.

107 See, e.g., Thorm v. United States, 59 F.2d 419, 419 

(3d Cir. 1932) (noting that Congress has historically defined 

felonies as crimes punishable by a prison term exceeding one 

year).

108 Tennesee v. Garner, 471 U.S. 1, 14 (1985) (“[T]he 

assumption that a ‘felon’ is more dangerous than a 

misdemeanant [is] untenable. Indeed, numerous 

misdemeanors involve conduct more dangerous than many 

felonies.”).

109 The Supreme Court’s recent decision in Voisine v. United 
32

Indeed, we have previously held that Congress has the 

power to define a “felony” for purposes of federal law in 

ways that depart even from the year-and-a-day rule. In 

United States v. Graham,

110 we considered how to apply 

Congress’s definition of an “aggravated felony” to a 

provision of the Sentencing Guidelines that “increase[d] the 

penalty for the crime of reentering the country after 

 

States, 136 S. Ct. 2272 (2016), also addressed the distinction 

between misdemeanors and felonies. That case raised an 

issue of statutory interpretation regarding 18 U.S.C.

§ 922(g)(9), which prohibits the possession of firearms by 

persons convicted of a “misdemeanor crime of domestic 

violence.” 

Because Voisine did not involve a challenge to the 

constitutionality of § 922(g)(9), it bears on these cases only 

indirectly. Still, Voisine recognized that Congress passed 

§ 922(g)(9) “to close [a] dangerous loophole in the gun 

control laws.” Id. at 2276 (alteration in original) (internal 

quotation marks omitted). In particular, Congress enacted 

§ 922(g)(9) to address the fact that “many perpetrators of 

domestic violence are charged with misdemeanors rather than 

felonies, notwithstanding the harmfulness of their conduct.” 

Id. Congress believed that closing this loophole was 

important because, in the Supreme Court’s words, “[f]irearms 

and domestic strife are a potentially deadly combination.” Id.

(alteration in original) (quoting United States v. Hayes, 555 

U.S. 415, 427 (2009)).

110 169 F.3d 787 (3d Cir. 1999). 
33

deportation.”111 The issue in the case was two-fold. First, the 

federal statute defined the term “aggravated felony” as an 

offense punishable by at least one year in prison—not, as is 

more typical, an offense punishable by more than one year in 

prison.

112 Second, the prior state offense that triggered the 

defendant’s federal sentencing enhancement was technically a 

misdemeanor under New York law.113

Graham recognized that “[t]he line between felonies 

and misdemeanors is an ancient one,” but it also noted that, 

“[w]ith the rise of the penitentiary and the disappearance of 

the death penalty for most felonies . . . the felonymisdemeanor distinction solidified at the one-year line.”114 

Even so, we concluded that Congress could ignore the yearand-a-day rule in its own statutory law. As a result, the label 

New York had affixed to Graham’s offense was immaterial; 

what mattered was the fact that his misdemeanor fell within 

 111 Id. at 789 (discussing 8 U.S.C. § 1101(a)(43) and 

U.S.S.G. § 2L1.2(b)(1)(B)). 

112 Id. at 791 (“8 U.S.C. § 1101(a)(43)(G) defines an 

aggravated felony as a theft offense with a sentence of at least 

one year.”). 

113 Id. at 789.

114 Id. at 792.
34

the technical federal definition of an “aggravated felony.”115 

Contrary to the statutory scheme we confronted in 

Graham, § 922(g)(1) respects the more modern, year-and-aday distinction between felonies and misdemeanors. Indeed, 

it does more than respect it: it actually excludes from its 

scope misdemeanors that are punishable by two years of 

imprisonment or less. In this way, § 922(g)(1) incorporates 

certain state-law judgments about what crimes count as 

“serious” misdemeanors. In other contexts, the Supreme 

Court has affirmed the value of easily administrable statutory 

schemes by stating that Congress can adopt clear, uniform 

rules about what counts as a “felony” for purposes of federal 

 115 Id. (“Congress has the power to define the punishment 

for the crime of reentering the country after deportation, and 

we conclude that Congress was defining a term of art, 

‘aggravated felony,’ which in this case includes certain 

misdemeanants who receive a sentence of one year.”).
35

law, even where state-level definitions are more nuanced.116 

The bottom line is this: once a misdemeanor is 

punishable by more than two years in prison, treating it as 

though it were intrinsically different than a felony is 

unjustifiably formalistic. By choosing to punish such 

misdemeanors more severely than a traditional felony, a state 

has already indicated that such crimes are serious. In my 

view, Congress is entitled to rely on that judgment.

Accordingly, my resolution of this case would be 

simple. Heller tells us that “nothing in [that] opinion should 

be taken to cast doubt on longstanding prohibitions on the 

possession of firearms by felons.”117 Our Court has since 

interpreted Heller to say that the ban on felons possessing 

firearms is a complete carve-out from the Second 

Amendment right. Since, for present purposes, there is no

 116 See, e.g., Burgess v. United States, 553 U.S. 124, 134 

(2008) (recounting how Congress amended a statute’s 

definition of “felony drug offense,” which in its previous 

form “depended on the vagaries of state-law classifications of 

offenses as felonies or misdemeanors,” to instead use a 

“uniform federal standard”); Logan, 552 U.S. at 35 

(explaining that Congress could choose to “revise 

§ 921(a)(20) to provide . . . that federal rather than state law 

defines a conviction for purposes of [§ 922]”); United 

States v. Turley, 352 U.S. 407, 411 (1957) (“[I]n the absence 

of a plain indication of an intent to incorporate diverse state 

laws into a federal criminal statute, the meaning of the federal 

statute should not be dependent on state law.”).

117 554 U.S. at 626.
36

functional difference between felons and persons who 

commit misdemeanors punishable by more than two years in 

prison, all persons with the scope of § 922(g)(1)—including 

the plaintiffs here—are disqualified from asserting their 

interest in using firearms “for defense of hearth and home.”118 

At Marzzarella step-one, no further analysis is necessary.

C. A Note on Heller’s Use of the Word 

“Presumptively” 

A majority of my colleagues disagree with the 

proposition that the felon-in-possession ban is a constitutional 

carve-out from the Second Amendment right. In affirming 

the plaintiffs’ challenges, they make it clear that district 

courts in our Circuit must now conduct person-by-person, 

individualized inquiries in order to determine whether the 

application of § 922(g)(1) is constitutional in any particular 

case.

In reaching that conclusion, my colleagues treat

Heller’s use of the word “presumptively” as though it 

requires courts to consider as-applied challenges to the felonin-possession ban. Judge Hardiman, for example, cites the 

Seventh Circuit’s decision in United States v. Williams, which 

read Heller’s reference “to felon disarmament bans only as 

‘presumptively lawful’” to imply “the possibility that the ban 

could be unconstitutional in the face of an as-applied 

challenge.”119 Likewise, Judge Ambro insists that “[u]nless 

 118 Marzzarella, 614 F.3d at 92. 

119 Hardiman Op. Typescript at 9–10 n.6 (citing Williams, 

616 F.3d at 692).
37

flagged as irrebutable, presumptions are rebuttable.”120 The 

shared assumption here is that, when the Supreme Court used 

the word “presumptively” in Heller, it meant to convey 

something like the definition of “presumption” that one might 

find in a legal dictionary—i.e., “a rule of law, statutory or 

judicial, by which [a] finding of a basic fact gives rise to 

existence of presumed fact, until [the] presumption is 

rebutted.”121 

This reading of “presumptively” in Heller puts more 

weight on that word than it can fairly bear. It is important to 

keep in mind the context within which the word appears. The 

key text of Heller says: 

[N]othing 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.122

Footnote 26 of Heller, which accompanies this 

passage, states: “We identify these presumptively lawful 

regulatory measures only as examples; our list does not 

 120 Ambro Op. Typescript at 28. 

121 United States v. Chase, 18 F.3d 1166, 1172 n.7 

(4th Cir. 1994) (quoting Black’s Law Dictionary 1185 

(6th ed. 1990)).

122 554 U.S. at 626–27.
38

purport to be exhaustive.”123

 Judge Ambro and Judge Hardiman read the word 

“presumptively” as though the Supreme Court was 

communicating, through its use of a single adverb in a 

footnote, a mandate that the Second Amendment now 

requires courts to hear as-applied challenges to certain laws 

that limit gun rights. That interpretation strikes me as exactly 

backwards. The Supreme Court was not putting us on notice 

that “longstanding prohibitions” universally considered 

constitutional pre-Heller were, post-Heller, constitutionally

suspect. The Court was instead trying to provide assurances 

that, whatever else Heller might portend, it did not provide a 

basis for future litigants to upend any and all existing 

restrictions on the right to bear arms. In other words, Heller’s 

language about “longstanding prohibitions” was meant to 

cabin its holding, not to expand it. 

It is also important to underscore that not all of the 

“longstanding prohibitions” on Heller’s list are the same. 

The ban on “the possession of firearms by felons”124 is a 

black-and-white proscription that has deep roots in our shared 

constitutional tradition. There is also nothing unclear about 

when it applies. Marzzarella recognized as much, reasoning 

that Heller “suggests [that] felons . . . are disqualified from 

exercising their Second Amendment rights” because the 

“validity” of the felon-in-possession ban does not “turn on the 

 123 Id. at 627 n.26. 

124 Id. at 626. 
39

presence or absence of certain circumstances.”125

The latter two kinds of “longstanding prohibitions” are 

different. These categories—“laws forbidding the carrying of 

firearms in sensitive places” and “laws imposing conditions 

and qualifications on the commercial sale of arms”126—have 

much more ambiguous boundaries. One might well ask: 

other than a school and a government building, what kind of 

location counts as a “sensitive place”? What kinds of 

conditions on the sale of arms are truly “longstanding”? In a 

case involving such a regulation, a court will need to engage 

in a more probing inquiry to determine whether the 

 125 614 F.3d at 91–92. Judge Ambro states that “the twostep Marzzarella framework controls all Second Amendment 

challenges,” (Ambro Op. Typescript at 40), and I agree. Yet 

Marzzarella plainly stated that “the better reading” of Heller 

is that felons are disqualified from asserting their Second 

Amendment rights. Marzzarella, 614 F.3d at 91–92. Judge 

Ambro departs from this reading to leave open the possibility 

of “a successful as-applied challenge by a state-law felon” to 

§ 922(g)(1), although he cautions that the “individual’s 

burden would be extraordinarily high—and perhaps even 

insurmountable.” (Ambro Op. Typescript at 33–34 n.6.) 

Nowhere does Judge Ambro explain how we can 

simultaneously proclaim our fidelity to Marzzarella while at 

the same time ignoring its reading of Heller’s key language.

126 Heller, 554 U.S. at 626–27.
40

challenged law is constitutionally valid.

127 

And here we come back to the word “presumptively.” 

In a case involving “laws forbidding the carrying of firearms 

in sensitive places” or “laws imposing conditions and 

qualifications on the commercial sale of arms,”128 the word 

“presumptively” is important. It signals to lower court judges

that they must think carefully about whether the challenged 

regulation is truly analogous to “longstanding prohibitions” 

upon which Heller does not “cast doubt.” In the parlance of 

our Court’s jurisprudence, not all such regulations will be 

“presumptively lawful” enough to satisfy the inquiry at 

Marzzarella step-one.

But with respect to the felon-in-possession ban, there 

is no work for the word “presumptively” to do. Section 

922(g)(1) codifies the restriction on criminals possessing 

 127 See, e.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 

1124–29 (10th Cir. 2015), cert. denied, 136 S. Ct. 1486 

(2016) (considering whether a federal regulation limiting the 

carrying of firearms in post office parking lots was 

constitutionally permissible in view of Heller’s guidance 

about carrying of firearms in government buildings); Nat’l 

Rifle Ass’n of Am., Inc., 700 F.3d at 203 (considering the 

constitutionality of a federal law prohibiting the sale of 

firearms to 18-to-20-year-olds by federally licensed firearms 

dealers, and concluding that the law “is consistent with a 

longstanding, historical tradition, which suggests that the 

conduct at issue falls outside the Second Amendment’s 

protection”). 

128 Heller, 554 U.S. at 626–27.
41

firearms in a manner that reflects longstanding history and 

tradition—and the Supreme Court has explicitly told us that 

Heller does not “cast doubt” on such a law.

129 This is not to 

say that Congress could never press its luck. If Congress

were to expand § 922(g)(1) beyond its traditional scope by, 

for example, banning the possession of firearms by persons 

convicted of crimes punishable by six months’ imprisonment, 

it might well run afoul of the Second Amendment’s 

protections. But such a law would be outside of Heller’s safe 

harbor for “longstanding prohibitions,” requiring courts—

again, in the parlance of our Circuit—to proceed to 

Marzzarella step-two and assess such a law under some form 

of heightened constitutional scrutiny.

130

Consequently, I disagree with Judge Ambro’s view 

that courts must “determin[e] whether crimes are serious 

enough to destroy Second Amendment rights” on a case-bycase basis.

131 To my mind, the validity of the felon-inpossession ban is not so precarious. Congress has made a 

 129 Id. at 626. 

130 The same could be said of the ban on mentally-ill persons 

possessing firearms. As currently codified, § 922(g)(4) 

makes it unlawful for any person to possess a gun “who has 

been adjudicated as a mental defective or . . . committed to a 

mental institution,” and Heller does not “cast doubt” on that 

law. But if Congress were to expand the current restriction 

to, for example, all persons who have ever seen a mental 

health professional, Heller’s safe harbor for “longstanding 

prohibitions” would no longer apply. 

131 Ambro Op. Typescript at 29.
42

reasoned judgment that crimes currently covered by 

§ 922(g)(1)—felonies and misdemeanors punishable by more 

than two years’ imprisonment—are serious enough to support 

disarmament. That categorical rule is consonant with history 

and tradition, and Heller does not “cast doubt” on it at all.132

III. Marzzarella Step-Two and the Proper Application 

of Constitutional Scrutiny

Even if, out of an abundance of caution, we were to 

move on to step two of the Marzzarella analysis and apply 

heightened scrutiny—a step I do not believe is necessary—

Congress’s interests in preventing gun violence are 

sufficiently important, and the felon-in-possession statute 

sufficiently tailored, that § 922(g)(1) would survive the 

plaintiffs’ challenges.

My colleagues disagree. Judge Hardiman believes that 

§ 922(g)(1) is so destructive of Second Amendment rights 

that, at least as applied to non-violent criminals, it is per se 

unconstitutional. Judge Ambro, meanwhile, insists that we 

must apply constitutional scrutiny at the level of people like 

the plaintiffs, and that if the government cannot show that 

“disarming people like them will promote the responsible use 

of firearms,” or that people “like them remain potentially 

irresponsible after many years of apparently responsible 

behavior,”133 then application of § 922(g)(1) is 

unconstitutional. By contrast, I believe that conducting a 

tailoring analysis at Judge Ambro’s level of specificity is 

 132 554 U.S. at 626. 

133 Ambro Op. Typescript at 39 (emphasis added). 
43

problematic. Even in the First Amendment context, there are 

some laws whose structure and purpose are incompatible with 

person-specific constitutional challenges. For the reasons that 

follow, § 922(g)(1) is such a law.

A. Intermediate Scrutiny Is the Appropriate 

Standard for These Cases

In Marzzarella, we opted to apply intermediate rather 

than strict scrutiny to test the constitutionality of a federal

statute. Looking to First Amendment jurisprudence for 

guidance, we asked whether (i) the challenged law involved a 

government interest that was either “significant,”

“substantial,” or “important,” and (ii) whether “the fit 

between the challenged regulation and the asserted objective 

[was] reasonable, not perfect.”134 The law challenged in 

Marzzarella, 18 U.S.C. § 922(k), makes it unlawful to 

possess a firearm with an obliterated serial number. We 

concluded that the law survived intermediate scrutiny because 

the government had a substantial interest “in enabling the 

tracing of weapons via their serial numbers,” and Marzzarella 

had failed to offer any “lawful purpose for which a person 

would prefer an unmarked firearm” to a marked one.135 

In choosing to apply intermediate scrutiny, 

 134 614 F.3d at 98. 

135 Id. at 98–99. For good measure, we noted that we would 

uphold the constitutionality of § 922(k) even if we applied 

strict scrutiny because, in our view, the statute was narrowly 

tailored to serve a compelling government interest. See 

id. at 99–101.
44

Marzzarella discerned an important distinction in Heller. 

While Heller clearly rejected rational-basis review,

136 it did 

not select either intermediate or strict scrutiny as the 

appropriate standard for assessing the constitutionality of the 

District of Columbia’s gun regulations. Instead, Heller stated 

that those regulations were unconstitutional “[u]nder any of 

the standards of scrutiny . . . applied to enumerated 

constitutional rights.”137 Marzzarella interpreted Heller as 

suggesting that firearm regulations fall along a continuum, 

with laws like the District of Columbia’s handgun ban falling 

“at the far end of the spectrum of infringement.”138

Marzzarella thus drew a distinction between laws that 

burden the “core . . . right of law-abiding citizens to possess 

[certain] weapons for self-defense in the home,” on the one 

hand, and laws that “do[] not severely limit the possession of 

firearms,”139 on the other. Marzzarella concluded that courts 

should apply strict scrutiny to test the constitutional validity

of the former kind of regulations, while they should apply 

intermediate scrutiny to test the validity of other, less 

 136 See Heller, 554 U.S. at 628 n.27 (“If all that was required 

to overcome the right to keep and bear arms was a rational 

basis, the Second Amendment would be redundant with the 

separate constitutional prohibitions on irrational laws, and 

would have no effect.”).

137 Id. at 628.

138 614 F.3d at 97.

139 Id. at 92, 97.
45

burdensome regulations.

140

We reaffirmed this framework in Drake v. Filko,

141

where we considered the constitutionality of New Jersey’s 

regulations governing the issuance of permits to carry guns in 

public. Drake reasoned that “the Second Amendment can 

trigger more than one particular standard of scrutiny, 

depending, at least in part, upon the type of law challenged 

and the type of Second Amendment restriction at issue.”142 It 

also concluded that courts should apply intermediate scrutiny

unless the challenged regulation burdens the “core” Second 

Amendment right.

143

Just as intermediate scrutiny was the correct standard 

to apply in Marzzarella and Drake, it is also the correct 

standard to apply here. The felon-in-possession ban, to the 

extent it burdens Second Amendment rights at all, does not 

impinge on the rights of “law-abiding, responsible 

 140 See id. at 97 (“The distinction between limitations on the 

exercise of protected conduct and regulation of the form in 

which that conduct occurs also appears in the First 

Amendment context. . . . Accordingly, we think § 922(k) also 

should merit intermediate, rather than strict, scrutiny.”).

141 724 F.3d 426.

142 Id. at 435 (quoting United States v. Reese, 627 F.3d 792, 

801 (10th Cir. 2010)).

143 Id. at 436; see also id. at 436 & n.14 (noting a few subtle 

differences between the standard for intermediate scrutiny 

articulated by the various circuits).
46

citizens.”144 Rather, it constrains the rights of persons who, 

by virtue of their prior criminal conduct, fall outside the core 

of the Second Amendment’s protections.

Several of our sister circuits have assessed challenges 

to other provisions of § 922(g) using this same approach. In 

United States v. Carter,

145 for example, the Fourth Circuit 

considered a challenge to 18 U.S.C. § 922(g)(3), which 

prohibits firearm possession by “any person . . . who is an 

unlawful user of or addicted to any controlled substance.” 

Citing Marzzarella with approval, Carter applied 

intermediate scrutiny to assess the validity of the statute.146 It 

reasoned that a person within the scope of § 922(g)(3)—that 

is, a user of controlled substances—could not fairly claim to 

be asserting the “core” Second Amendment right of “lawabiding, responsible citizens.”147 For the same reason, the 

Fourth Circuit has applied intermediate scrutiny to assess the 

validity of those provisions of § 922(g) that limit the 

possession of firearms by persons subject to protective orders 

and by persons who have committed misdemeanor crimes of 

 144 Heller, 554 U.S. at 635.

145 669 F.3d 411 (4th Cir. 2012). 

146 Id. at 417. 

147 Id. at 416 (quoting Heller, 554 U.S. at 635).
47

domestic violence.148 The decisions of several other circuits 

are in accord.

149

Thus, even assuming that Binderup and Suarez fall 

within the Second Amendment’s protections, I would join our 

sister circuits in holding that their prior criminal convictions 

place them outside the core “right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.”150 For 

this reason, intermediate scrutiny is the correct standard under 

which to assess their challenges.

 148 See United States v. Chapman, 666 F.3d 220, 226 

(4th Cir. 2012) (“Chapman’s claim is not within the core right 

identified in Heller—the right of a law-abiding, responsible

citizen to possess and carry a weapon for self-defense.”) 

(considering a challenge to § 922(g)(8)); Chester, 628 F.3d at 

682–83 (“Although Chester asserts his right to possess a 

firearm in his home for the purpose of self-defense, we 

believe his claim is not within the core right identified in 

Heller . . . by virtue of Chester’s criminal history as a 

domestic violence misdemeanant.”) (considering a challenge 

to § 922(g)(9)).

149 See United States v. Chovan, 735 F.3d 1127, 1138

(9th Cir. 2013) (“Section 922(g)(9) does not implicate [the]

core Second Amendment right because it regulates firearm 

possession for individuals with criminal convictions.”); 

Schrader, 704 F.3d at 989 (applying intermediate scrutiny 

“[b]ecause common-law misdemeanants as a class cannot be 

considered law-abiding and responsible”); Reese, 627 F.3d at 

802 (applying intermediate scrutiny to § 922(g)(8)).

150 Heller, 554 U.S. at 635.
48

B. Judge Hardiman’s Rejection of

Heightened Scrutiny

Before proceeding any further, I think it is important to 

pause in order to address a profound doctrinal disagreement

between myself and Judge Hardiman. Like Judge Ambro and 

me, Judge Hardiman believes that we determine the proper 

scope of the Second Amendment by looking to history and 

tradition. Reviewing the relevant historical sources, Judge 

Hardiman concludes that, as a matter of past practice, the 

only persons subject to disarmament were those who were 

dangerous. Judge Ambro and I obviously disagree with that 

assessment, but I am happy to acknowledge that reasonable 

minds could differ on this score. At that point, however, 

Judge Hardiman makes what I believe to be a serious 

doctrinal error. 

Having concluded that Congress may permissibly 

disarm persons likely to commit violent acts, Judge Hardiman 

then defends the proposition that all other applications of 

§ 922(g)(1) are per se unconstitutional. No recourse to 

heightened scrutiny or means-ends balancing is necessary. 

After all, Heller struck down a local ordinance that 

completely prevented citizens from possessing firearms in 

their homes for self-defense. Section 922(g)(1) has the same 

effect with respect to felons and certain misdemeanants. So, 

Judge Hardiman concludes, § 922(g)(1) must be 

unconstitutional in every application to non-violent criminals 

because it “eviscerates” their Second Amendment rights.151 I 

agree with Judge Ambro that such an approach is inconsistent 

with the development of Second Amendment doctrine in this 

 151 Hardiman Op. Typescript at 18, 50. 
49

and other circuits.152 

In addition, the rejection of heightened scrutiny in this 

context seems out-of-step with Heller itself. As discussed 

earlier, Heller says that the “core” Second Amendment right 

is the “right of law-abiding, responsible citizens to use arms 

in defense of hearth and home.”153 Non-violent criminals are, 

by definition, not “law-abiding.” Insofar as Judge 

Hardiman’s opinion holds that non-violent criminals have an 

absolute, inviolable right to keep guns in their homes for selfdefense, Heller seems to disagree. 

The advantage of heightened scrutiny is that it allows 

us to think about how Congress (and, by corollary, we as a 

polity) can tackle real-world challenges within constitutional 

boundaries. Such an inquiry necessarily requires us to think 

about the connection between means and ends, and therefore 

to debate the seriousness of the problems we face—including 

gun violence—and the permissible means of addressing them. 

While history is of course important, and in many cases will

be dispositive, the tiers of scrutiny provide us with a useful 

analytical framework for assessing the constitutionality of

laws that burden Second Amendment rights—even those, like 

§ 922(g)(1), that disarm certain persons altogether. 

C. The Felon-in-Possession Ban Survives 

Intermediate Scrutiny 

Applying intermediate scrutiny, we ask whether the 

 152 Ambro Op. Typescript at 15–18. 

153 554 U.S. at 635.
50

challenged law involves a government interest that is

“significant,” “substantial,” or “important,” and then assess 

whether “the fit between the challenged regulation and the 

asserted objective [was] reasonable, not perfect.”154 Section 

922(g)(1) easily clears those hurdles. 

Courts have identified Congress’s objective in passing 

§ 922(g) as “keep[ing] guns out of the hands of presumptively

risky people” and “suppressing armed violence.”155 As 

Congress explained when passing the 1968 modifications to 

the statute, “[T]he ease with which any person can acquire 

firearms other than a rifle or shotgun (including 

criminals . . . ) is a significant factor in the prevalence of 

lawlessness and violent crime in the United States.”156

Our Court has also said that governments 

“undoubtedly [have] a significant, substantial and important 

interest in protecting [their] citizens’ safety.”157 As the 

Second Circuit stated shortly after the horrific shootings in 

Newtown, Connecticut, “[t]he regulation of firearms is a 

paramount issue of public safety, and recent events in this 

circuit are a sad reminder that firearms are dangerous in the 

 154 Marzzarella, 614 F.3d at 98. 

155 Yancey, 621 F.3d at 683–84 (citing S. Rep. No. 90–1501, 

at 22 (1968)).

156 Pub. L. No. 90–351, § 901(a)(2), 82 Stat. 197, 225 

(1968). 

157 Drake, 724 F.3d at 437 (citing United States v. Salerno, 

481 U.S. 739, 745 (1987)) (punctuation modified).
51

wrong hands.”158 

Having established that the government’s objective is a 

substantial one, we next ask if the challenged law is a 

“reasonable fit” to carry out the government’s purposes. In 

making that assessment, the “State bears the burden of 

justifying its restrictions [and] it must affirmatively establish 

the reasonable fit we require.”159 Seeking to satisfy this 

burden, the government points to numerous studies that 

explore the link between past criminal conduct and future 

crime, including gun violence.160 The plaintiffs challenge the 

 158 Osterweil v. Bartlett, 706 F.3d 139, 143 (2d Cir.)

(O’Connor, J.), certifying question to the New York Court of 

Appeals, certified question answered, 999 N.E.2d 516 

(N.Y. 2013); see also N.Y. State Rifle & Pistol Ass’n, Inc. v. 

Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (“It is beyond cavil 

that both states have substantial, indeed compelling, 

governmental interests in public safety and crime 

prevention.” (internal quotation marks and citation omitted)). 

159 Drake, 724 F.3d at 453 (quoting Bd. of Trs. of State 

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). 

160 See Gov’t Br. in Binderup at 28 (citing Bureau of Justice 

Statistics, Recidivism of Prisoners Released in 1994, at 6 

(2002); Mona A. Wright et al., Effectiveness of Denial of 

Handgun Purchase to Persons Believed To Be at High Risk 

for Firearm Violence, 89 Am. J. of Pub. Health 88, 89 

(1999)). The government also points out that the risk of 

recidivism is particularly high for sex offenders like Binderup 

irrespective of whether or not states categorize their crimes as 

felonies or as serious misdemeanors.
52

relevance of the government’s cited studies, asserting that 

while they may show a connection between past criminal 

conduct and gun violence, they do not show such a link with 

respect to criminals who share their characteristics and who 

committed offenses similar to theirs.161 Judges Ambro and 

Hardiman share this criticism. 

Several courts have—correctly, in my view—refused 

to parse the government’s evidence as finely as the plaintiffs 

ask us to.

162 The question is not whether someone exactly 

like the plaintiffs poses a threat to public safety. The question 

is whether “the fit between the challenged regulation and the 

asserted objective [is] reasonable, not perfect.”163 The 

plaintiffs seem to want something more. 

 161 We might also consider the fact that, as we noted in 

Drake, legislatures generally crafted the regulatory schemes 

governing firearms before Heller concluded that the Second 

Amendment protected an individual right to bear arms. 

Consequently, the statistical evidence of “fit” may be lacking 

in certain instances because the drafters of the regulations did 

not realize they would need to compile it. See Drake, 

724 F.3d at 437–38.

162 See, e.g., Yancey, 621 F.3d at 685 (“[M]ost felons are 

nonviolent, but someone with a felony conviction on his 

record is more likely than a nonfelon to engage in illegal and 

violent gun use.” (citing United States v. Lane, 252 F.3d 905, 

906 (7th Cir. 2001)).

163 Marzzarella, 614 F.3d at 98; see also Drake, 724 F.3d at 

436 (same). 
53

Assessing the strength of the government’s evidence as 

assiduously as the plaintiffs demand would also raise 

separation of powers concerns, at least in the context of 

intermediate scrutiny. We generally say that “[i]t is the 

legislature’s job, not ours, to weigh conflicting evidence and 

make policy judgments.”164 Our Court has cautioned that 

“conflicting empirical evidence . . . does not suggest, let alone 

compel, a conclusion that the ‘fit’ between [a challenged 

firearm regulation] and public safety is not ‘reasonable.’”165 

Other courts have said that Congress may regulate firearms 

on the basis of “correlational evidence” that does not 

necessarily “prove a causal link” between the conduct at issue 

and a particular provision of § 922(g).166 In the words of the 

D.C. Circuit, “the legislature is ‘far better equipped than the 

judiciary’ to make sensitive public policy judgments (within 

constitutional limits) concerning the dangers in carrying 

firearms and the manner to combat those risks.”167 Judge 

Wilkinson of the Fourth Circuit has been even more direct: 

“This is serious business. We do not wish to be even 

minutely responsible for some unspeakably tragic act of 

mayhem because in the peace of our judicial chambers we 

 164 Kachalsky v. Cty. of Westchester, 701 F.3d 81, 99

(2d Cir. 2012).

165 Drake, 724 F.3d at 439. 

166 United States v. Carter, 750 F.3d 462, 469 (4th Cir.), 

cert. denied, 135 S. Ct. 273 (2014).

167 Schrader, 704 F.3d at 990 (quoting Kachalsky, 701 F.3d 

at 97). 
54

miscalculated as to Second Amendment rights.”168

Against this backdrop, I conclude that the 

government’s evidence adequately establishes a connection 

between past criminal conduct and future gun violence. I also 

conclude that Congress’s decision to disarm felons and those 

who commit misdemeanors punishable by more than two 

years in prison is reasonably tailored to preventing such 

violence.

 168 United States v. Masciandaro, 638 F.3d 458, 475 

(4th Cir. 2011). I do not take Judge Wilkinson’s admonition 

to imply that judges are incapable of making decisions about 

whether particular persons are dangerous. Every day judges 

decide whether to grant bail, impose prison time, or revoke a 

period of supervised release—and all of these determinations 

touch on dangerousness. The key point is that, in these 

contexts, there are mechanisms in place for informing judicial 

discretion. In sentencing, revocation, and bail hearings, for 

example, judges have the benefit of presentence and pretrial 

services reports, input from trained probation and pretrial 

services professionals, and recommendations from 

prosecutors.

By contrast, there are no tools readily at-hand for deciding 

whether an individual person should have access to a firearm

despite a past criminal conviction. See also infra at pages

66−69 (discussing previous cases that have recognized the 

inherent difficulties in making such determinations).
55

D. Tailoring § 922(g)(1) Too Narrowly Is 

Problematic 

The foregoing analysis, of course, speaks to the issue 

of tailoring with respect to the connection between the risk of 

gun violence and the universe of offenses that trigger 

§ 922(g)(1) (i.e., felonies and misdemeanors punishable by 

more than two years in prison). The plaintiffs believe that the 

statute must be tailored more narrowly still—indeed, so 

narrowly that it takes account of their individual 

characteristics. 

And here we come to the difficult conceptual issue in 

this case: is this sort of as-applied challenge to § 922(g)(1) 

even permissible? This issue has divided the Courts of 

Appeals, caused endless trouble for the government at oral 

argument, and has at times perplexed me as well. But I 

ultimately conclude that the answer must be “no.”169

The notion of an as-applied challenge is familiar to us 

in the context of First Amendment law. In such cases, the 

government enacts some kind of law limiting speech for 

either logistical reasons (such as time, place, and manner 

restrictions) or to promote its own conception of the public 

good (such as regulations governing campaign financing). In 

 169 I offer here an alternative assessment of the problem of 

as-applied challenges in the context of intermediate scrutiny

(i.e., at Marzzarella step-two). Because I believe that felons 

and serious misdemeanants can be disarmed at Marzzarella 

step-one, I would hold as an initial matter that the plaintiffs 

have been disqualified from the exercise of their Second 

Amendment rights altogether.
56

such situations, it is entirely predictable that a certain number 

of citizens will raise the argument that the law makes little 

sense as applied to them. These arguments typically sound in 

overbreadth. The normal claim is that a person’s inclusion 

within the scope of the law has no meaningful connection to 

the government’s purported objective, leading to an 

impermissible infringement on that person’s free speech 

rights. 

But Second Amendment limitations like the felon-inpossession ban and the ban on mentally-ill persons possessing 

guns are different—and the reason they’re different is 

because, in this context, the government’s objective is neither 

logistical nor abstract. It is, quite simply, to prevent armed 

mayhem and death.170 As a result, when we conduct a 

tailoring analysis in such a case, we must assess whether the 

challenged law is reasonably tailored to prevent future 

violence.

 170 The Supreme Court’s decision in Vartelas v. Holder, 

132 S. Ct. 1479 (2012), reiterated these congressional 

purposes. Vartelas addressed whether a provision of the 

immigration laws could be applied retroactively (that is, to 

conduct occurring before the law’s enactment). The 

government tried to draw an analogy between the challenged 

statute and § 922(g). The Court, rejecting that comparison, 

stated that the law at issue in Vartelas targeted “past 

misconduct,” id. at 1489, whereas “‘longstanding prohibitions 

on the possession of firearms by felons’ . . . target a present 

danger, i.e., the danger posed by felons who bear arms.” Id.

(quoting Heller, 554 U.S. at 626). 
57

And this is why as-applied challenges to § 922(g)(1) 

are so problematic. Binderup and Suarez are, in effect,

saying, “Trust us: we are not the kind of people who will 

cause future gun violence.” The problem is that it is 

practically impossible to make this kind of individualized 

prediction with any degree of confidence. Mistakes—costly 

ones—are simply too likely.

That is not my judgment, but rather the judgment of 

Congress itself. A separate provision of the federal gun laws, 

18 U.S.C. § 925(c), states that “[a] person who is prohibited 

from possessing, shipping, transporting, or receiving firearms 

or ammunition may make application to the Attorney General 

for relief from the disabilities imposed by Federal laws.” The 

Attorney General may “grant such relief if it is established to 

his satisfaction that the circumstances regarding the disability, 

and the applicant’s record and reputation, are such that the 

applicant will not be likely to act in a manner dangerous to 

public safety and that the granting of the relief would not be 

contrary to the public interest.”171 If an application is denied, 

the applicant may petition a district court for relief. As it 

turns out, this “relief provision has been rendered 

inoperative” by virtue of the fact that “Congress has 

repeatedly barred the Attorney General from using 

appropriated funds ‘to investigate or act upon [relief] 

applications.’”172 

Congress defunded this provision in 1992. In a 

 171 18 U.S.C. § 925(c).

172 Logan, 552 U.S. at 28 n.1 (alteration in original) (quoting 

United States v. Bean, 537 U.S. 71, 74–75 (2002)). 
58

Department of Justice appropriations statute, it provided that 

“none of the funds appropriated herein shall be available to 

investigate or act upon applications for relief from Federal 

firearms disabilities under 18 U.S.C. 925(c).”173 That 

embargo on funds has remained in place ever since. And why 

did Congress effectively write § 925(c) out of the statute 

books? Because it concluded that the task of granting 

individual applications for relief from § 922(g)(1) was too 

prone to error. A 1992 Senate report stated that the Justice 

Department’s review of applications was “a very difficult and 

subjective task which could have devastating consequences 

for innocent citizens if the wrong decision is made,”174 and 

noted that the Bureau of Alcohol, Tobacco, and Firearms 

(“ATF”) spent “approximately 40 man-years . . . annually to 

investigate and act upon these investigations and 

applications.”175 Similarly, a later House report stated that 

“too many of these felons whose gun ownership rights were 

restored went on to commit violent crimes with firearms,” 

and concluded that “[t]here is no reason to spend the 

Government[’s] time or taxpayer’s money to restore a 

convicted felon’s right to own a firearm.”176 

In other words, Congress reviewed the evidence from 

its prior regime of what were, in effect, as-applied challenges 

 173 Treasury, Postal Service, and General Government 

Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat. 

1729, 1732 (1992).

174 S. Rep. No. 102-353, at 19 (1992).

175 Id. at 20. 

176 H.R. Rep. No. 104-183, at 15 (1995).
59

to § 922(g)(1) and concluded that such a system was 

unworkable. This should have a profound impact on our 

tailoring analysis. Under intermediate scrutiny, we ask 

whether there is a “reasonable” fit between the challenged 

regulation and the government’s objective.

177 Here, Congress 

tried the plaintiffs’ way of doing things and concluded that it 

was too error-prone to support the government’s objective of 

preventing armed violence.178 There were too many 

mistakes—and, unlike in the First Amendment context, those 

mistakes were potentially fatal.

Notwithstanding Congress’s experience with § 925(c), 

the plaintiffs seem to believe that by shoehorning their 

complaints about § 922(g)(1)’s scope into the rubric of “asapplied challenges,” they necessarily force us to assess their 

individual characteristics rather than rely on Congress’s 

categorical rule. I disagree. Even in the First Amendment 

context, where courts routinely assess as-applied challenges 

 177 Marzzarella, 614 F.3d at 98. 

178 As one of our colleagues in the D.C. Circuit has put it, 

“the reality of gun violence means our constitutional analysis 

should incorporate deference to the legislature.” Heller v. 

District of Columbia, 801 F.3d 264, 283 (D.C. Cir. 2015) 

(Henderson, J., concurring in part and dissenting in part)

(citing Holder v. Humanitarian Law Project, 561 U.S. 1, 

34−36 (2010)). Deference in this context is even more 

appropriate when Congress has not simply made a policy 

judgment about preventing gun violence, but has actually 

experimented with a system of gun regulation and 

concluded—based on lived experience—that it was 

unworkable.
60

to speech-limiting laws, there are circumstances where such 

challenges must fail in the face of reasonable deference to 

legislative judgments.

The Supreme Court’s decision in United Public 

Workers of America (C.I.O.) v. Mitchell179 is a perfect 

example. The Supreme Court there confronted an as-applied 

challenge to the Hatch Act, which bans government 

employees from engaging in certain kinds of partisan political 

activity, including some forms of political speech. 

Congress’s goal in passing the Act was “to promote

efficiency and integrity in the discharge of official duties.”180 

The challenger, a “skilled mechanic” at the United States 

Mint, argued that he was simply not the type of government 

employee whose conduct was likely to raise integrity 

concerns.

181 Structurally, this argument is identical to the one

the plaintiffs make here—i.e., that they are too far removed 

from the core group of people who pose the risk of harm that 

Congress sought to address by passing § 922(g)(1) for that 

law to be constitutional as applied to them. 

The Supreme Court rejected that argument. In its 

view, the Hatch Act survived constitutional scrutiny because 

the conduct it outlawed was “reasonably deemed by Congress 

to interfere with the efficiency of the public service.”182 The 

 179 330 U.S. 75 (1947).

180 Id. at 96–97 (quoting Ex parte Curtis, 106 U.S. 371, 373 

(1882)).

181 Id. at 101. 

182 Id.
61

Court recognized that, given his role at the Mint, the 

challenger was situated somewhat differently than whitecollar employees who might be more inclined to take on 

management roles in political campaigns. Even so, the Court 

did not think these distinctions were constitutionally 

dispositive.183 As the Court observed: 

Whatever differences there may be between 

administrative employees of the Government 

and industrial workers in its employ are 

differences in detail so far as the constitutional 

power under review is concerned. Whether 

there are such differences and what weight to 

attach to them, are all matters of detail for 

Congress. . . . 

* * *

When actions of civil servants in the judgment 

of Congress menace the integrity and the 

competency of the service, legislation to 

forestall such danger and adequate to maintain 

its usefulness is required. The Hatch Act is the 

answer of Congress to this need.184

The logic of Mitchell applies with equal force to the 

present case. Here, too, Congress has passed a law to respond 

to a public danger. Here, too, individualized predictions are

impossible with any degree of accuracy. Here, too, a regime 

 183 Id. at 102. 

184 Id. at 102–03.
62

of person-by-person regulation would present grave problems

of administrability. But here, unlike in Mitchell, the potential 

harm is not only serious and widespread, but also deadly. 

Mitchell instructs us that Congress has the power in 

such circumstances to impose a complete ban on the exercise 

of a constitutional right by a category of persons who, in its 

reasonable estimation, pose a threat to the public. While 

courts must, of course, entertain constitutional challenges to 

statutes that infringe on constitutional rights, Mitchell makes 

it clear that there are some laws with respect to which asapplied challenges will categorically fail. I believe that 

§ 922(g)(1) is such a law.185

Moreover, insofar as the plaintiffs’ claims sound in 

overbreadth, it is worth emphasizing that the federal regime

for regulating firearm possession by convicts has numerous 

safety valves that make any complaint about unfairness far 

less persuasive. 

First, we should remember that § 922(g)(1) is a statute 

predicated on principles of federalism. Rather than 

specifying a list of qualifying offenses, “[i]t looks to state 

 185 The First Circuit, too, has recognized that categorical 

rules are sometimes constitutionally permissible in the

Second Amendment context. See United States v. Booker, 

644 F.3d 12, 23 (1st Cir. 2011) (“[T]he Second Amendment 

permits categorical regulation of gun possession by classes of 

persons—e.g., felons and the mentally ill—rather than 

requiring that restrictions on the right be imposed only on an 

individualized, case-by-case basis.” (internal citation 

omitted)).
63

law” and imposes “restrictions on certain convicts based on 

decisions made by state legislatures and courts.”186 In this 

way, the federal statute leaves the judgment about which 

offenses should trigger disarmament to the discretion of state 

legislators who are, at least in theory, closer to the lived 

experience of their constituents. To put it another way, 

Congress did not decide that the plaintiffs’ convictions would 

have the effect of preventing them from owning firearms; 

rather, their state legislatures did. 

At this point, one might reasonably object that, by 

refusing to permit as-applied challenges to § 922(g)(1), we 

give legislatures far too much power to disarm citizens. After 

all, what prevents a state from passing a law saying that 

jaywalking is punishable by five years in prison? Or a 

speeding ticket? Or littering? “Surely,” one might think,

“Congress cannot disarm people who commit those

offenses?”

I understand and appreciate these concerns. But 

institutional considerations lead me to conclude that Congress 

may permissibly use the existence of a prior criminal 

conviction as a trigger for collateral consequences under 

federal law. This necessarily means that states have near total 

control over what offenses will trigger those federal 

consequences. If the citizens of a particular state believe that 

a criminal offense is too minor to trigger disarmament, their 

remedy is to petition the state legislature to amend the law—

not to seek redress in the federal courts. Indeed, there is 

evidence that state authorities are perfectly capable of 

assessing the consequences of § 922(g) and acting to counter 

 186 Chovan, 735 F.3d at 1151 (Bea, J., concurring).
64

them if they feel that doing so is appropriate.187 The 

alternative, a regime of judges serving as a super-legislature 

to review the reasonableness of the criminal codes in all 

50 states, is inconsistent with the way we have regulated gun 

ownership for more than half a century. 

To put it another way, § 922(g) reflects a 

congressional policy judgment that states should have a role 

in determining what kinds of misdemeanor offenses will

trigger disarmament. That is a question over which the states 

will predictably disagree. The Supreme Court itself 

recognized as much in Logan v. United States.

188 The

petitioner there asserted that his conviction for violating 

§ 922(g)(1) was unlawful because, properly construed, that 

statute did not apply to state offenses—like his—that did not 

 187 See Robert A. Mikos, Enforcing State Law in Congress’s 

Shadow, 90 Cornell L. Rev. 1411, 1463–64 & nn.187, 188 

(2005) (finding that expungement of domestic violence 

convictions increased following the enactment of 

§ 922(g)(9)); see also Logan, 552 U.S. at 33 (recounting that 

“Wisconsin no longer punishes misdemeanors by more than 

two years of imprisonment”).

188 552 U.S. 23, 34–36 (2007).
65

trigger any loss of civil rights.189 The Supreme Court found 

that argument unpersuasive. In the course of its analysis, it 

favorably cited McGrath v. United States,

190 a Second Circuit 

opinion stating that “anomalies” in the application of the 

federal firearms laws are “inevitable” when those laws

“depend on the differing laws and policies of the several 

states.”191 Logan also recognized that application of the 

federal firearm laws would be more uniform if “federal rather 

than state law define[d] a conviction for purposes of

[§ 922].”192 Even so, Logan treated the issue of how to 

balance uniformity and state-by-state variation in this context 

as a policy question properly reserved to the legislative 

 189 See id. at 26. The petitioner’s argument relied on 

18 U.S.C. § 921(a)(20), which provides that “[a]ny 

conviction which has been expunged, or set aside or for 

which a person has been pardoned or has had civil rights 

restored shall not be considered a conviction for purposes of 

this chapter, unless such pardon, expungement, or restoration 

of civil rights expressly provides that the person may not 

ship, transport, possess, or receive firearms.”

190 60 F.3d 1005 (2d Cir. 1995).

191 Id. at 1009; see also Logan, 552 U.S. at 33–34 (quoting

the same passage). 

192 552 U.S. at 35.
66

branch.193 

Second, federal law lifts the felon-in-possession ban 

whenever a conviction “has been expunged, or set aside,” or 

is one “for which a person has been pardoned or has had civil 

rights restored.”194 This is a second way in which the statute 

devolves regulatory power to state authorities. As a 

consequence, § 922(g) “in its normal application does not 

create a perpetual and unjustified disqualification” from the 

Second Amendment right.195 As the Ninth Circuit has 

explained, any burden imposed by the provisions of § 922(g) 

“is lightened by these exceptions” in ways that can factor into 

 193 See id. (“We may assume, arguendo, that when Congress 

revised § 921(a)(20) in 1986 . . . it labored under the 

misapprehension that all offenders—misdemeanants as well 

as felons—forfeit civil rights, at least temporarily. Even 

indulging the further assumption that courts may repair such a 

congressional oversight or mistake, we could hardly divine 

the revision the Legislature would favor.” (footnote omitted)).

194 18 U.S.C. § 921(a)(20); see also United States v. 

Leuschen, 395 F.3d 155, 159–60 (3d Cir. 2005) (discussing 

the meaning of “civil rights” in our circuit).

195 Skoien, 614 F.3d at 645 (discussing expungement as a 

way to lift the ban imposed by § 922(g)(9)); see also id.

(“Some of the largest states make expungement available as 

of right to misdemeanants who have a clean record for a 

specified time. California, for example, has such a program.” 

(citing Cal. Penal Code § 1203.4a)). 
67

the relevant constitutional calculus.196 

Third, there is the right to petition Congress itself. 

With respect to § 925(c), some members of Congress have

announced their support for appropriating the funds necessary 

for the Justice Department to once again consider applications 

for relief from the felon-in-possession ban.

197 Whether 

Congress will do so in light of its prior determination that 

such a regime is unworkable is an open question. 

There is also the possibility of obtaining offensespecific carve-outs from § 922(g)(1). For example, another 

provision of the federal gun laws says that the term “crime 

punishable by imprisonment for a term exceeding one year” 

in § 922(g)(1) “does 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.”198 If the plaintiffs 

believe that the crimes of corrupting a minor and carrying a 

firearm without a license belong on that list, their efforts may 

be more fruitfully directed towards the national legislature 

 196 Chovan, 735 F.3d at 1138.

197 See Press Release, Rep. Ken Buck, Buck Fights for 

Second Chance at Second Amendment Rights (June 2, 2015), 

https://buck.house.gov/media-center/press-releases/

buck-fights-restore-second-amendment-rights (last visited 

Sept. 2, 2016).

198 18 U.S.C. § 921(a)(20)(A); see also United States v. 

Schultz, 586 F.3d 526, 529–31 (7th Cir. 2009) (considering 

the proper application of this statutory carve-out).
68

instead of the courts. 

Accordingly, I believe that § 922(g)(1) is a reasonable 

fit to carry out the government’s purpose of reducing armed 

violence. Congress has made a reasoned judgment that 

persons who commit felonies and misdemeanors punishable 

by more than two years in prison are likelier to commit future 

gun violence than law-abiding citizens. That judgment is 

informed by Congress’s experience with § 925(c), which it

concluded was unworkable and dangerous because, in its 

view, that law did not provide a way for the government to 

make accurate judgments about the safety of re-arming 

particular people. 

I would therefore uphold § 922(g)(1) under 

intermediate scrutiny, both as applied to these plaintiffs and 

as applied to future plaintiffs who might bring similar 

challenges.

IV. The Problems with As-Applied Challenges to 

§ 922(g)(1) Are Insurmountable 

Finally, it is important to step back and take stock of 

what the plaintiffs are actually asking us to do, which is to 

create an entirely new judicial process for resolving asapplied challenges to § 922(g)(1). Such an approach is both 

doctrinally unnecessary and administratively unworkable. 

The current rule for determining whether § 922(g)(1) 

applies is about as straightforward as it gets: “the fact of a 

felony conviction imposes a firearm disability until the 

conviction is vacated or the felon is relieved of his disability 
69

by some affirmative action.”199 The advantage of this scheme 

is its simplicity. The alternative, “a free floating prohibition,” 

would be “very hard to administer.”200 Indeed, it would 

create a never-ending stream of “serious problems of 

administration, consistency and fair warning.”201

This becomes apparent once we consider how a regime 

of as-applied challenges would function in the real world. 

We previously examined this issue in Pontarelli v. United 

States Department of the Treasury.

202 That case arose from 

Congress’s previously discussed decision in 1992 to defund

§ 925(c). In the early 2000s, plaintiffs began filing suits in 

federal court alleging that, by refusing to process their 

applications due to lack of funding, the Justice Department 

had effectively denied those applications. Because § 925(c) 

provides for judicial review of such denials, these litigants 

asserted that they could ask federal district courts to “review” 

their applications in the first instance. 

Pontarelli rejected that argument. Sitting en banc, we

concluded that Congress’s denial of funds to process § 925(c) 

applications stripped the federal district courts of jurisdiction 

to review the Justice Department’s refusal to act on those 

 199 Lewis v. United States, 445 U.S. 55, 60–61 (1980)

(considering a challenge to 18 U.S.C. § 1202, the predecessor 

to the current § 922).

200 United States v. Rehlander, 666 F.3d 45, 50 

(1st Cir. 2012).

201 Torres-Rosario, 658 F.3d at 113. 

202 285 F.3d 216 (3d Cir. 2002) (en banc).
70

applications. We also expressed skepticism that courts were 

capable of making individualized determinations about 

whether any particular felon should have his or her firearm

rights restored. We stated that “[d]istrict courts’ institutional 

limitations suggest that Congress could not have intended for 

the appropriations ban to transfer to them the primary 

responsibility for determining whether to restore felons’

firearm privileges.”203 Such a task required “interviewing a 

wide array of people, including the felon, his family, his 

friends, the persons whom he lists as character references, 

members of the community where he lives, his current and 

former employers, his coworkers, and his former parole 

officers,” and, unlike a federal agency, “courts possess neither 

the resources to conduct the requisite investigations nor the 

expertise to predict accurately which felons may carry guns 

without threatening the public’s safety.”204

The Supreme Court later unanimously vindicated 

Pontarelli in United States v. Bean.

205 The Court there 

explained that “[i]naction by ATF does not amount to a 

‘denial’ within the meaning of § 925(c),” and “an actual 

decision by ATF on an application is a prerequisite for 

judicial review.”206 It further noted that “[w]hether an 

applicant is ‘likely to act in a manner dangerous to public 

safety’ presupposes an inquiry into that applicant’s 

background—a function best performed by the Executive, 

 203 Id. at 230–31. 

204 Id. at 231. 

205 537 U.S. 71 (2002).

206 Id. at 75–76.
71

which, unlike courts, is institutionally equipped for 

conducting a neutral, wide-ranging investigation.”207 The 

Court summarized its view by stating that § 925(c) requires 

an “inherently policy-based decision best left in the hands of 

an agency.”208

Pontarelli and Bean recognized the many pitfalls 

inherent in a regime of as-applied challenges. We should 

embrace the wisdom of those opinions now.

209

Indeed, the great advantage of § 922(g)(1) is that its 

application turns on a prior adjudication. There is a real risk 

that by instead peering into the seriousness of a plaintiff’s 

prior conviction, we are inviting what are, in effect, collateral 

attacks on long-closed proceedings. The Tenth Circuit 

recognized as much in United States v. Reese.

210 That case 

involved a challenge to 18 U.S.C. § 922(g)(8), which makes it

unlawful to possess firearms while subject to a domestic 

protection order. The defendant argued that his prosecution 

for violating § 922(g)(8) was improper due to alleged 

infirmities in the underlying state court proceeding. The 

Tenth Circuit rejected this argument, stating that “the 

 207 Id. at 77.

208 Id.

209 I recognize, of course, that Heller changed the 

constitutional landscape. But again: Heller held that the 

Second Amendment protects the “right of law-abiding, 

responsible citizens to use arms in defense of hearth and 

home.” 554 U.S. at 635. 

210 627 F.3d 792 (10th Cir. 2010).
72

overwhelming weight of federal case law precludes a 

defendant in a § 922(g)(8) prosecution from mounting a 

collateral attack on the merits of the underlying state 

protective order.”211 As-applied challenges to § 922(g)(1) 

invite the same kinds of collateral attacks that Reese firmly 

rejected.212 

My colleagues’ approaches are also vulnerable on 

another front. Their suggested criteria for assessing asapplied challenges might be feasible if every challenger, like 

the plaintiffs here, filed a declaratory judgment action. But at 

this point it is important to reiterate that § 922(g)(1) is a 

provision of criminal law. This raises its own set of 

constitutional difficulties. 

 211 Id. at 804; see also id. at 805 (“[A]ny such challenges 

could and should have been raised by Reese in the Hawaii 

Family Court.”).

212 We ourselves recently reiterated that, as a general rule, 

collateral attacks on past state convictions are disfavored in 

our federal system. In United States v. Napolitan, --- F.3d ---, 

2016 WL 3902164 (3d Cir. July 19, 2016), we concluded that 

a defendant could not challenge the reasonableness of his 

federal sentence on the ground that it was to run 

consecutively to a state sentence that the defendant claimed 

was unconstitutional. In our view, permitting such an attack 

“would be a cumbersome imposition on federal sentencing 

and a clear repudiation of the finality typically afforded to 

state court judgments.” Id. at *4. Asking district courts to 

litigate the seriousness of prior crimes giving rise to 

disarmament under § 922(g)(1) raises similar concerns. 
73

First, our decision today places an extraordinary 

administrative burden on district courts handling criminal 

prosecutions under § 922(g)(1). Once as-applied challenges 

start to work their way through our courts, there will be an 

increasingly large body of “re-armament orders” that restore 

individuals’ firearm rights. As a consequence, there will be 

more and more people who believe that they can rely on a 

particular judicial decision to claim that they, too, are entitled 

to possess a firearm. District court judges will find 

themselves in an ever-thickening morass of as-applied 

precedent, trying to make fine-grained distinctions about 

whether individual felon-in-possession prosecutions can 

proceed. Given that my colleagues leave the door open to asapplied challenges even with respect to persons who have 

committed felonies, we can expect these challenges to begin 

working their way through our Circuit almost immediately.213

Still worse, my colleagues’ approaches appear to be on 

a collision course with the Due Process Clause of the Fifth 

Amendment, which prohibits the government from “taking 

away someone’s life, liberty, or property under a criminal law 

so vague that it fails to give ordinary people fair notice of the 

conduct it punishes, or so standardless that it invites arbitrary 

enforcement.”214 It seems to me that, under a regime of as-

 213 See, e.g., Woolsey, 759 F.3d at 907 (noting defendant 

moved to dismiss indictment on Second Amendment 

grounds); Moore, 666 F.3d at 315 (same); Barton, 633 F.3d 

at 169 (same); Vongxay, 594 F.3d at 1114 (same); see also 

United States v. Hauck, 532 F. App’x 247, 249 (3d Cir. 2013) 

(not precedential) (same).

214 Johnson v. United States, 135 S. Ct. 2551, 2556 (2015) 

(citing Kolender v. Lawson, 461 U.S. 352, 357–358 (1983)). 
74

applied challenges to § 922(g)(1), compliance with principles 

of due process will quickly prove impossible. 

Keep in mind that both Judge Ambro and Judge 

Hardiman are open to the possibility that a person convicted 

of a crime might, over time, be able to present evidence of 

rehabilitation sufficient to mount a successful as-applied 

challenge to the felon-in-possession ban.215 But if time-fromconviction is really one of the relevant criteria, there is no 

clear reason why a person subject to § 922(g)(1) could not 

bring seriatim challenges in the hope that, at some point, his 

or her conviction would be too far in the past to support the 

statute’s application. Perhaps in future cases we could try to 

jerry-rig some kind of doctrinal framework to address this 

situation (e.g., multiple challenges in a single year are 

disfavored; one challenge every five years is permissible), but 

we would be doing so on the basis of nothing more than our 

own judicial intuitions. 

Imagine, for example, that three people are prosecuted 

for committing a non-violent felony. One was convicted 

1 year ago, one 15 years ago, and one 30 years ago. All three 

are caught by police officers at a shooting rage with guns-in-

 215 See Hardiman Op. Transcript at 35 n.15 (“We have not 

been presented with historical evidence one way or another 

whether [the passage of time or evidence of rehabilitation]

might be a route to restoration of the right to keep and bear 

arms in at least some cases, so we leave for another day the 

determination whether that turns out to be the case.”); Ambro 

Op. Typescript at 36–37 n.7 (“[U]nder the right 

circumstances the passage of time since a conviction can be a 

relevant consideration in assessing recidivism risks.”).
75

hand, thereby violating § 922(g)(1). Are the ensuing 

indictments constitutional, or are the convictions too far in the 

past? Under the approach adopted by my colleagues, I

simply have no idea. Neither will future defendants, to whom 

the Fifth Amendment guarantees some clarity as to whether 

their conduct is, or is not, unlawful.

In response to this evident quagmire, one might 

propose a series of bright-line rules for determining when 

application of § 922(g)(1) is constitutional. Unfortunately, 

my colleagues do not offer such rules. Under their more 

holistic standards, the constitutionality of the felon-inpossession statute in any particular case may depend on the

judge’s views about the offense and offender. As a result, 

defendants may not have fair notice of when and against 

whom the statute will be—or constitutionally can be—

enforced. 

The federal judiciary’s recent experience with the 

Armed Career Criminal Act makes it plain that our new 

regime of as-applied challenges may be heading towards a 

doctrinal dead-end. The Act increases the penalties on 

violations of § 922(g) whenever a defendant has three or 

more earlier convictions for a “serious drug offense” or a 

“violent felony.”216 The so-called “residual clause” of the 

Act defined a “violent felony,” in part, as a crime that 

“involves conduct that presents a serious potential risk of 

physical injury to another.”217 This clause bedeviled the 

Supreme Court for nearly a decade as it considered numerous 

 216 18 U.S.C. § 924(e)(1). 

217 Id. § 924(e)(2)(B)(ii). 
76

cases raising the question of whether a particular offense

presented a “serious potential risk of physical injury to 

another.” Finally, in the recent case of Johnson v. United 

States,

218 the Supreme Court declared that the residual clause 

was void for vagueness. In the Court’s view, the clause

created “grave uncertainty about how to estimate the risk 

posed by a crime”219 and generated too much “uncertainty 

about how much risk it takes for a crime to qualify as a 

violent felony.”220

I take Johnson to stand for the proposition that the 

category of “violent felony” is simply too indefinite to use as 

a basis for determining who is and is not subject to criminal 

liability under § 922(g)(1). Judge Hardiman, by contrast, 

would permit plaintiffs to bring as-applied challenges on the 

ground that their previous crimes were not sufficiently violent 

to support disarmament. This raises the question of how 

violent, exactly, a crime has to be for application of 

§ 922(g)(1) to be constitutional. Citing Barton, Judge 

Hardiman focuses on offenses “closely related to violent 

crime,”221 but goes on to state that “‘[c]rimes of violence’

were commonly understood [in the early part of the 20th 

century] to include only those offenses ‘ordinarily committed 

 218 135 S. Ct. 2551 (2015).

219 Id. at 2257.

220 Id. at 2258. 

221 Hardiman Op. Typescript at 13 (quoting Barton, 633 

F.3d at 174).
77

with the aid of firearms.’”222 We and future litigants can only 

guess whether this definition, unbounded as it is by reference 

to the elements of an offense, extends to drug possession with 

intent to distribute, human trafficking, extortion, or RICO 

violations. We need not wonder, however, whether it 

provides fair notice and comports with due process: the 

Supreme Court made clear in Johnson it does not, and thus 

Judge Hardiman’s approach would lead inexorably to courts 

having to strike down § 922(g)(1) as void for vagueness.

223

Unfortunately, Judge Ambro’s approach raises its own 

set of problems. He would require district court judges to 

consider a variety of factors in order to assess a crime’s 

“seriousness,” including, among other things, (i) whether a 

crime is a misdemeanor or a felony,224 (ii) the sentence 

imposed,225 and (iii) whether there is a “cross-jurisdictional 

consensus regarding the seriousness” of the crime giving rise 

 222 Id. at 42 (material in second set of brackets added) 

(quoting Barton, 633 F.3d at 173). 

223 This is to say nothing of Judge Hardiman’s approach to 

assessing whether Binderup and Suarez are “responsible 

citizens.” In answering that question, Judge Hardiman 

considers not only the plaintiffs’ recent avoidance of criminal

conduct, but also personal traits like the fact that they both 

have “a job [and] a family.” Id. at 46. This approach seems 

to require an analysis so particularized as to be practically 

characterological, raising additional problems of fair warning 

and due process.

224 Ambro Op. Typescript at 30–31.

225 Id. at 31–32.
78

to the federal firearm disability.

226 Judge Ambro leaves it to 

future cases to explain more fully how to weigh and balance 

these various factors. Unfortunately, once district court 

judges start disagreeing about how to conduct this inquiry, it 

will only be a matter of time before void-for-vagueness 

challenges to § 922(g)(1) start to percolate throughout our 

courts.

227 

I see nothing in the Second Amendment that compels 

us to abandon the current system of administrable firearms 

regulation for such an uncertain future. 

V. Conclusion

It is easy to empathize with the plaintiffs in these 

cases. Having committed misdemeanors far in the past, they

fail to see how they can fairly be denied a right guaranteed to 

them by the Constitution. Heller says that the “core” Second 

Amendment right is the “right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.”228 The 

 226 Id. at 32.

227 Not to put too fine a point on it, but I disagree with Judge 

Ambro’s conclusions as to seriousness in this very case. 

While it may not have involved the threat of violence, 

Binderup’s relationship with a teenager in his employ 

involved power dynamics that were, at the very least, 

troubling. And Suarez’s offense—carrying an unlicensed 

firearm—indicates a cavalier attitude towards gun safety 

regulations. Neither offense strikes me as frivolous or “nonserious.”

228 Heller, 554 U.S. at 635.
79

plaintiffs say that they are now “law-abiding, responsible 

citizens”—so why should they be unable to protect 

themselves and their families with a gun?

As understandable as that intuition may be, our 

emerging law of the Second Amendment does not permit this 

kind of as-applied challenge. First, Heller establishes a clear

rule: statutes like § 922(g)(1) are “longstanding prohibitions” 

that are “presumptively lawful.”229 Interpreting that directive, 

our Court has said that Congress may permissibly disqualify 

certain people from asserting their Second Amendment rights

on a categorical basis.

230 As a matter of tradition and history, 

persons who commit felonies and misdemeanors punishable 

by more than two years in prison (which are felonies in all but 

name) fall into that category. Second, even if we were to 

consider the plaintiffs’ challenges under the rubric of 

intermediate scrutiny, Congress has reasonably concluded

that persons who commit crimes are also likelier to commit 

gun violence. Because § 922(g)(1) is appropriately tailored to 

address that problem, the plaintiffs’ challenges must fail.

The plaintiffs’ suggestion that we should get into the 

business of issuing individualized exceptions to the felon-inpossession ban is, in the final analysis, administratively 

unworkable and constitutionally suspect. By affirming the 

plaintiffs’ challenges today, I fear my colleagues are sending

our nascent law of the Second Amendment into a doctrinal 

Labyrinth from which it may not soon return.

 229 Id. at 626–27 & n.26. 

230 Marzzarella, 614 F.3d at 92. 
80

I therefore respectfully dissent.