UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 21-1832 

_____________ 

MADISON M. LARA; SOPHIA KNEPLEY; LOGAN D. MILLER; SECOND 

AMENDMENT FOUNDATION, INC.; FIREARMS POLICY COALITION, 

 Appellants 

 v. 

COMMISSIONER PENNSYLVANIA STATE POLICE 

__________ 

On Appeal from the United States District Court 

For the Western District of Pennsylvania 

(D.C. No. 2-20-cv-01582) 

District Judge: Honorable William S. Stickman, IV 

_______________ 

SUR PETITION FOR REHEARING

_______________ 

Present: CHAGARES, Chief Judge, JORDAN, HARDIMAN, SHWARTZ, KRAUSE, 

RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERYREEVES, CHUNG, and SMITH,* Circuit Judges 

The petition for rehearing filed by appellee in the above-entitled case having been 

submitted to the judges who participated in the decision of this Court and to all the other 

available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the 

_______________ 

*Judge Smith’s vote is limited to panel rehearing only.
2 

circuit in regular service not having voted for rehearing, the petition for rehearing by the 

panel and the Court en banc, is DENIED. Judges Shwartz, Krause, Restrepo, Freeman, 

Montgomery-Reeves and Chung voted to grant the petition. Judge Krause files the 

attached dissent. 

 BY THE COURT 

 s/ Kent A. Jordan 

 Circuit Judge 

Date: March 27, 2024 

cc: All counsel of record 
1 

KRAUSE, Circuit Judge, dissenting sur denial of rehearing en 

banc. 

When they ratified the Second Amendment, our 

Founders did not intend to bind the nation in a straitjacket of 

18th-century legislation, nor did they mean to prevent future 

generations from protecting themselves against gun violence 

more rampant and destructive than the Founders could have 

possibly imagined. At a minimum, one would think that the 

states’ understanding of the Second Amendment at the time of 

the “Second Founding”1

—the moment in 1868 when they 

incorporated the Bill of Rights against themselves—is part of 

“the Nation’s historical tradition of firearms regulation”2

informing the constitutionality of modern-day regulations. 

Indeed, since the Supreme Court tethered their 

constitutionality to the existence of historical precedent in 

District of Columbia v. Heller, 554 U.S. 570 (2008), we and 

the other Courts of Appeals have consistently looked to 

Reconstruction-era, as well as Founding-era sources, and, even 

as the Supreme Court has acknowledged the “ongoing 

scholarly debate” about their relevance,3

 it too has relied on 

Reconstruction-era sources in each of its recent major opinions 

on the right to bear arms. Notably, the Supreme Court is 

expected within the next few months, if not weeks, to issue its 

1 See, e.g., Eric Foner, The Second Founding: How The Civil 

War and Reconstruction Remade The Constitution (2019); see 

also Students for Fair Admissions, Inc. v. President & Fellows 

of Harvard Coll., 143 S. Ct. 2141, 2175 (2023) (referring to the 

incorporation of the Bill of Rights as “a Second Founding”). 

2 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 

(2022). 

3 Id. at 2138.
2 

next seminal opinion, clarifying its historical methodology in 

the absence of Founding-era analogues. 

Yet despite our own precedent acknowledging the 

relevance of Reconstruction-era sources, our recognition in an 

en banc opinion just last year that the Supreme Court relies on 

both Founding-era and Reconstruction-era sources,4

 and an 

imminent decision from the Supreme Court that may prove 

dispositive to this case, the panel majority here announced—

over Judge Restrepo’s compelling dissent—that all historical 

sources after 1791 are irrelevant to our Nation’s historical 

tradition and must be “set aside” when seeking out the 

“historical analogues” required to uphold a modern-day gun 

regulations.5

 The panel majority then held—based exclusively 

on 18th-century militia laws and without regard to the 

voluminous support the statutory scheme finds in 19th-century 

analogues—that Pennsylvania’s prohibition on 18-to-20-yearold youth carrying firearms in public during statewide 

emergencies is unconstitutional.6

 

The panel majority was incorrect, but more importantly, 

it erred profoundly in the methodology to which it purports to 

bind this entire Court and with far-reaching consequences. 

Against this backdrop, we should be granting Pennsylvania’s 

4 Range v. Att’y Gen., 69 F.4th 96, 104 (3d Cir. 2023) (en banc), 

petition for cert. filed sub nom. Garland v. Range, No. 23-374 

(U.S. Oct. 5, 2023). 

5 Lara v. Comm’r Pa. State Police, 91 F.4th 122, 134 (3d Cir. 

2024). 

6

 Id. (discussing Sections 6106, 6107, and 6109 of 

Pennsylvania’s Uniform Firearms Act of 1995, 18 Pa. Cons. 

Stat. §§ 6101–6128 (2024)).
3 

petition for en banc review,7 supported by 17 other states and 

the District of Columbia as amici, or at least holding it c.a.v. 

pending the Supreme Court’s decision in United States v. 

Rahimi.

8

 But instead, over the objection of nearly half our 

Court, we are denying it outright. 

I respectfully dissent from that denial for four reasons. 

First, without en banc review, the panel majority’s 

pronouncement cannot bind future panels of this Court. We 

have held Reconstruction-era sources to be relevant in 

decisions both before and after Bruen so, under our case law 

and our Internal Operating Procedures, en banc rehearing is 

necessary before any subsequent panel can bind our Court to a 

contrary position.9

 Second, en banc review would allow us to 

apply the proper historical methodology, which would compel 

a different outcome in this case. Third, en banc review is 

necessary for error correction: Even if we limit ourselves to 

Founding-era sources, the panel failed to recognize that 

legislatures in that era were authorized to categorically disarm 

groups they reasonably judged to pose a particular risk of 

danger, and Pennsylvania’s modern-day judgment that youth 

under the age of 21 pose such a risk is well supported by 

7 See generally Commissioner’s Petition for Rehearing, or, 

Alternatively, Rehearing En banc, Lara, 91 F.4th 122 (No. 21-

1832), ECF No. 81. 

8

 No. 22-915 (U.S. argued Nov. 7, 2023); see Brief of Amici 

Curiae Illinois et al. in Support of Defendant-Appellee’s 

Petition for Rehearing or Rehearing En banc, Lara, 91 F.4th 

122 (No. 23-1832), ECF No. 82 (explaining the wide-ranging 

impact of the divided panel’s majority opinion for states across 

the country).

9 See 3d Cir. I.O.P. 9.1. 
4 

evidence subject to judicial notice. And fourth, the majority’s 

narrow focus on the Founding era demands rehearing because 

it ignores the Supreme Court’s recognition that “cases 

implicating unprecedented societal concerns or dramatic 

technological changes may require a more nuanced 

approach.”10 For each of these reasons, discussed in turn 

below, en banc review should be granted. 

A. En banc Consideration Is Necessary Before 

Our Court Can Adopt the Panel Majority’s 

Novel Methodology. 

Confronted with 19th-century regulations supporting 

the constitutionality of Pennsylvania’s statutory scheme, the 

panel majority took the position that it could simply “set aside” 

that evidence based on its pronouncement that “the Second 

Amendment should be understood according to its public 

meaning in 1791,” rather than “according to [its] public 

meaning in 1868.” Lara v. Comm’r Pa. State Police, 91 F.4th 

122, 134 (3d Cir. 2024). But that novel methodology, which 

the majority attempted to ground in a “hint” in New York State 

Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), and 

inferences from cases outside the Second Amendment context, 

see Lara, 941 F.4th at 133, not only contravened Bruen and 

other Supreme Court precedent within the Second Amendment 

context, see infra, but also violated our Internal Operating 

Procedures by purporting to overrule the holdings of prior 

panels without either en banc review or clear abrogation of our 

prior precedent by the Supreme Court, see 3d Cir. I.O.P. 9.1. 

10 Bruen, 142 S. Ct. at 2131, 2132. 
5 

For its part, the Supreme Court has cited to and relied 

upon Reconstruction-era sources, in addition to Founding-era 

sources in all of its recent Second Amendment cases—Bruen 

included. Whatever “hint[s]” the panel majority may take from 

Bruen, Lara, 91 F.4th at 133, the Supreme Court there 

recognized that states are “bound to respect the right to keep 

and bear arms because of the Fourteenth Amendment, not the 

Second,” and proceeded to consider not just 18th-century 

analogues but also “[e]vidence from around the adoption of the 

Fourteenth Amendment,” Bruen, 142 S. Ct. at 2137, 2150. The 

Supreme Court has also cited Reconstruction-era sources as 

relevant historical evidence in its other Second Amendment 

cases. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 

777 (2010) (Alito, J.) (“[I]t is clear that the Framers and 

ratifiers of the Fourteenth Amendment counted the right to 

keep and bear arms among those fundamental rights necessary 

to our system of ordered liberty.”); Heller, 554 U.S. at 605 

(“We now address how the Second Amendment was 

interpreted from immediately after its ratification through the 

end of the 19th century.”). 

Until the underlying panel opinion here, our Court, too, 

has followed the Supreme Court’s instruction and consistently 

relied upon Reconstruction-era sources, alongside Foundingera sources, as relevant historic analogues in defining “the 

Nation’s historical tradition of firearm regulation.” Bruen, 142 

S. Ct. at 2126; see, e.g., Frein v. Pa. State Police, 47 F.4th 247, 

255 (3d Cir. 2022) (“Plus, the Fourteenth Amendment’s 

ratifiers understood that it would stop gun seizures.”); 

Drummond v. Robinson Township, 9 F.4th 217, 228 (3d Cir. 

2021) (“Some Colonial and Reconstruction Era governments 

made it illegal to sell guns to enslaved or formerly enslaved 

people and members of Native American tribes.”), abrogated 
6 

on other grounds by Bruen, 142 S. Ct. 2111; Folajtar v. Att’y 

Gen., 980 F.3d 897, 905 (3d Cir. 2020) (considering statutes 

from “the turn of the nineteenth century”), abrogated on other 

grounds by Bruen, 142 S. Ct. 2111. 

Most recently, our en banc opinion in Range likewise 

acknowledged that Reconstruction-era sources are relevant. 

We acknowledged Bruen’s “emphasis on Founding and

Reconstruction-era sources” and rejected only the notion that a 

statute enacted “nearly a century after the Fourteenth 

Amendment’s ratification” could be considered 

“longstanding.” Range v. Att’y Gen., 69 F.4th 96, 104 (3d Cir. 

2023) (en banc) (emphasis added), petition for cert. filed sub 

nom. Garland v. Range, No. 23-374 (U.S. Oct. 5, 2023). Thus, 

both pre- and post-Bruen, we—along with other Courts of 

Appeals11—have held Reconstruction-era sources to be both 

relevant and informative. 

11 As the First Circuit recently observed, while Bruen “indeed 

indicated that founding-era historical precedent is of primary 

importance for identifying a tradition of comparable 

regulation,” it also “relied upon how the Second Amendment 

was interpreted from immediately after its ratification through 

the end of the 19th century” and “likewise left open the 

possibility that late-19th-century evidence and 20th-century 

historical evidence may have probative value if it does not 

contradict[] earlier evidence.” Ocean State Tactical, LLC v. 

Rhode Island, --- F.4th ---, No. 23-1072, 2024 WL 980633, at 

*10 (1st Cir. Mar. 7, 2024) (internal citations and quotation 

marks omitted)). See also Antonyuk v. Chiumento, 89 F.4th 

271, 305 (2d Cir. 2023) (“We therefore agree with the decisions 

of our sister circuits—emphasizing the understanding that 

prevailed when the States adopted the Fourteenth 
7 

In view of this precedent, en banc rehearing is required 

before any subsequent panel has authority to hold—let alone 

to bind this Court to a holding—that Reconstruction-era 

sources must henceforth be “set aside,” Lara, 91 F.4th at 134, 

when interpreting the Second Amendment. See 3d Cir. I.O.P. 

9.1 (providing that prior panels’ holdings are “binding on 

subsequent panels” and “no subsequent panel overrules the 

holding . . . of a previous panel” because “Court en banc

consideration is required to do so.”). 

The only exception to this well-established rule arises 

when the “prior panel’s holding is in conflict with Supreme 

Court precedent.” Karns v. Shanahan, 879 F.3d 504, 514–15 

(3d Cir. 2018) (quotation marks omitted). But that is not the 

case here. Even the Lara panel acknowledged it was acting on 

Amendment—is, along with the understanding of that right 

held by the founders in 1791, a relevant consideration.” 

(internal citations and quotation marks omitted)), petition for 

cert. filed sub nom. Antonyuk v. James, No. 23-910 (U.S. Feb. 

20, 2024); Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir. 

2011) (“[T]he most relevant historical period for questions 

about the scope of the Second Amendment as applied to the 

States is the period leading up to and surrounding the 

ratification of the Fourteenth Amendment.”), abrogated on 

other grounds by Bruen, 142 S. Ct. 2111; United States v. 

Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (similar), abrogated 

on other grounds by Bruen, 142 S. Ct. 2111; Gould v. Morgan, 

907 F.3d 659, 669 (1st Cir. 2018) (discussing a “comprehensive 

survey of the historical record,” which included laws from the 

19th century), abrogated on other grounds by Bruen, 142 S. Ct. 

2111; see also Brief of Amici Curiae Illinois et al., supra note 

7, 12 (collecting cases).
8 

what it perceived as a “hint” the Supreme Court dropped in 

Bruen, not a holding. Lara, 91 F.4th at 133. Bruen, in fact,

reiterated the “methodological approach to the Second 

Amendment” that the Court adopted in Heller, including its 

rejection of the notion that Reconstruction-era sources were 

“illegitimate postenactment legislative history.” 142 S. Ct. at 

2127 (quotation marks omitted). It also confirmed that 

examination of sources from that era—including “19th-century 

cases,” congressional and public “discourse after the Civil 

War,” and the understanding of post-Civil War 

commentators—“was a critical tool of constitutional 

interpretation” in understanding the Second Amendment. Id.

at 2127–28 (quotation marks omitted). And although the Court 

cautioned against giving postenactment history “more weight 

than it can rightly bear” and noted that it has “generally 

assumed that the scope of the protection applicable to the 

Federal Government and States is pegged to the public 

understanding of the right when the Bill of Rights was adopted 

in 1791,” the Court was explicit that it was not resolving the 

“debate on whether courts should primarily rely on the 

prevailing understanding of an individual right when the 

Fourteenth Amendment was ratified in 1868 when defining its 

scope.” Id. at 2137–38. 

Ironically, the Court appears poised to sway, if not 

resolve, that debate in its forthcoming decision in United States 

v. Rahimi, No. 22-915 (U.S. argued Nov. 7, 2023). The 

question presented there is whether prohibiting a domestic 

abuser from possessing a firearm, under 18 U.S.C. § 922(g)(8), 

violates the Second Amendment in the absence of comparable 

Founding-era precedent. Thus, Rahimi seems likely to address 

whether courts evaluating the constitutionality of modern-day 

legislation may consider developments in the law post-
9 

ratification or are indeed constrained to Founding-era 

sources.12 Why, then, are we denying Pennsylvania’s petition 

for review, declining even to hold it c.a.v. for Rahimi’s 

forthcoming guidance, and ruling instead based on a supposed 

“hint” in Bruen? Hints and assumptions by the Supreme Court 

are not holdings, see Brecht v. Abrahamson, 507 U.S. 619, 631 

(1993), and neither can justify our denial of rehearing en banc

when the novel approach of a divided panel purports to 

overturn our precedent. 

In sum, our failure to grant en banc rehearing not only 

creates a circuit split and allows an opinion resting on an 

invalid premise to stand; it also means the panel majority’s 

holding concerning Reconstruction-era sources will not bind 

this Court going forward. To the contrary, “where our cases 

conflict, the earlier is the controlling authority and the latter is 

ineffective as precedent.” Bracey v. Superintendent Rockview 

SCI, 986 F.3d 274, 290 n.14 (3d Cr. 2021) (cleaned up) (citing 

3d Cir. I.O.P. 9.1). The petition for rehearing thus should be 

granted to secure the uniformity of our Second Amendment 

12 This petition should be held c.a.v. for the additional reason 

that Rahimi appears likely to address one or more other 

dispositive issues, including who counts among “the People” 

protected by the Second Amendment; the contours of Bruen’s 

“history and tradition” test; the level of deference we should 

give legislatures in making categorical, predictive judgments 

about groups that pose particular risks; what, if any, findings 

legislatures must make to justify those judgments; and whether 

evidence of legislative authority to make those judgments 

includes consensus among the states today. See generally Brief 

for the United States, Rahimi, No. 22-915 (U.S. Aug. 14, 

2023).
10 

case law, or if not granted, at least held c.a.v. for the 

forthcoming opinion in Rahimi. 

B. En banc Rehearing Is Necessary Because 

Under the Proper Methodology, 

Pennsylvania’s Statutory Scheme is 

Constitutional. 

Because Reconstruction-era sources are relevant and 

the panel majority disregarded them, en banc rehearing is the 

only way to conduct the comparative analysis Bruen requires. 

That analysis compels a different outcome. Judge Restrepo 

catalogued the historical evidence that “[a]t the Founding, 

people under 21 lacked full legal personhood,” so, at the first 

step of the Bruen test, those youth are not among “the people” 

protected by the text of the Second Amendment. Lara, 91 F.4th 

at 142 (Restrepo, J., dissenting). He also persuasively 

explained why, even if we reach Bruen’s second step and 

determine whether the regulation is “consistent with the 

Nation’s historical tradition of firearm regulation,” Bruen, 142 

S. Ct. at 2126, Pennsylvania’s statutory scheme is 

constitutional. Among other reasons, he observed that “at least 

17 states passed laws restricting the sale of firearms to people 

under 21” between 1856 and 1893. See Lara, 91 F.4th at 147 

(Restrepo, J., dissenting) (citing Bruen, 142 S. Ct. at 2129–30). 

I join that conclusion and offer here some concrete 

examples of ways that the “how” and “why” of those historical 

statutes map onto Pennsylvania’s.13 

13 Although Bruen eschewed a free-standing “means-end 

scrutiny” or “interest-balancing inquiry” for modern-day 

regulations, 142 S. Ct. at 2129, it embraced a comparative 
11 

By way of background, before the Fourteenth 

Amendment was ratified in 1868, a number of states treated 21 

as the age of majority14 and effectively prevented, or at least 

hindered, “minors” from even obtaining firearms. See, e.g., 

1856 Ala. Laws 17; 1859 Ky. Acts 245, § 23; 1856 Tenn. Pub. 

Acts 92. Other states adopted similar regulations in the years 

immediately after ratification, see, e.g., 1875 Ind. Acts 59; 

1879 Mo. Rev. Stat. § 1274; 1878 Miss. Laws 175–76,15

signaling that the generation that incorporated the Second 

Amendment against the states did not understand it to limit 

their ability to pass such regulations, see Bruen, 142 S. Ct. at 

2136–37 (acknowledging that historical examples from the 

years immediately following ratification can, in some cases, 

provide evidence about the public understanding of an 

Amendment). Indeed, a 19th century treatise written by “the 

means-end analysis by directing us to look to “how” (the 

means) and “why” (the end) historical “regulations burden a 

law-abiding citizen’s right to armed self-defense” and then to 

consider whether the “modern . . . regulation[] impose[s] a 

comparable burden . . . [that] is comparably justified,” id. at 

2133. 

14 See, e.g., Vincent v. Rogers, 30 Ala. 471, 473 (1857) 

(describing a minor as an individual “under twenty-one years 

of age”); Warwick v. Cooper, 37 Tenn. (5 Sneed) 659, 660–61 

(1858) (referring to 21 as the age of majority); Newland v. 

Gentry, 57 Ky. (18 B. Mon.) 666, 671 (1857) (referring to 21 

as the age of majority); 1879 Mo. Rev. Stat. § 2559 (explaining 

that a male is a minor until he turns 21, and a female is a minor 

until she turns 18). 

15 See also Jones v. Bonta, 34 F.4th 704, 740 (9th Cir. 2022) 

(collecting statutes), vacated on reh’g, 47 F.4th 1124 (9th Cir. 

2022).
12 

most famous” voice on the Second Amendment at the time, 

Heller, 554 U.S. at 616, explained that states “may prohibit the 

sale of arms to minors,” Thomas M. Cooley, Treatise on 

Constitutional Limitations 740 n.4 (5th ed. 1883). 

By broadly criminalizing any attempt to convey a 

firearm to those under the age of 21, these statutes effectively 

prevented young citizens not just from carrying publicly in 

times of emergency, but from possessing firearms at all. Thus, 

as to “how” these prohibitions burdened the right to bear arms, 

the 18th-century laws were far more onerous than 

Pennsylvania’s, which prohibits such youth only from carrying 

publicly during statewide emergencies, see 18 Pa. Cons. Stat. 

§§ 6106, 6107, 6109. If the generation that incorporated the 

Bill of Rights against the states believed that states could 

constitutionally impose more burdensome gun regulations on 

this age group, a fortiori it would have viewed Pennsylvania’s 

more limited prohibition as constitutional. 

In terms of “why” the statutes were enacted, these 

Reconstruction-era laws again are comparable to 

Pennsylvania’s statutory scheme—certainly more so than the 

Founding-era militia statutes on which the panel majority 

relied. As I discuss in greater detail in Section D, infra, 

interpersonal gun violence “was not a problem in the Founding 

era that warranted much attention,” in large part because the 

firearms that our Founders possessed simply lacked the 

capacity of those today to inflict mass casualties in a matter of 

seconds.16 By the late 19th century, however, “gun violence 

16 Saul Cornell, The Right to Carry Firearms Outside of the 

Home: Separating Historical Myths from Historical Realities, 

39 Fordham Urb. L. J. 1695, 1713 (2012). 
13 

had emerged as a serious problem in American life.”17 This 

development was fueled by the mass production of firearms 

that began during the wave of American industrialization in the 

mid-19th century,18 and it was accompanied by renewed efforts 

to market gun ownership to the average American consumer.19 

It was also driven by “the trauma of the [Civil War] and the 

enormous increase in the production of guns necessary to 

supply two opposing armies,” which “intensified the problem 

posed by firearms violence and gave a new impetus to 

regulation.”20 

In this changed America, “interpersonal gun violence 

and the collective terrorist violence perpetuated by groups such 

17 Saul Cornell, The Right to Regulate Arms in the Era of the 

Fourteenth Amendment: The Emergence of Good Cause 

Permit Schemes in Post-Civil War America, 55 U.C. Davis L. 

Rev. Online 65, 69 (2021). 

18 James B. Jacobs and Alex Haberman, 3D-Printed Firearms, 

Do-It-Yourself Guns, & the Second Amendment, 80 Law & 

Contemp. Probs. 129, 137–38 (2017); see also David Yamane, 

The Sociology of U.S. Gun Culture, 11 Sociology Compass 1, 

2 (2017) (“The 19th century shift from craft to industrial 

production, from hand‐made unique parts to machine‐made 

interchangeable parts, dramatically increased manufacturing 

capacities, and gun manufacturing played a central role in this 

development.”).   

19 See Pamela Haag, The Gunning of America: Business and 

the Making of American Gun Culture xvii–xxi (2016) 

(explaining how gun manufacturers employed new marketing 

strategies to create a civilian market for firearms in the 19th 

century). 

20 Cornell (2021), supra note 17, at 69. 
14 

as the Ku Klux Klan” replaced the “ancient fears of tyrannical 

Stuart monarchs and standing armies” that preoccupied the 

Founding generation.21 Those same concerns about public 

safety apply to today’s America, where increasingly deadly 

firearms are mass-produced at an unprecedented rate,22 and 

have motivated states like Pennsylvania to regulate the ability 

of still-maturing young people to carry firearms.23 

In short, both the “how” and the “why” of 

Pennsylvania’s statute track those of its Reconstruction-era 

analogues, so en banc rehearing would allow us not just to 

correct the panel’s mistaken methodology, but also its mistaken 

result. 

C. En banc Rehearing Is Also Necessary for 

Proper Consideration of Founding-Era 

Sources.

Even if we were to follow the majority’s approach and 

“set aside the Commissioner’s catalogue of statutes from the 

mid-to-late nineteenth century,” Lara, 91 F.4th at 134, en banc

rehearing is warranted because Pennsylvania’s statutory 

scheme has support in Founding-era history to which we look 

21 Id.  

22 Glenn Thrush, U.S. Gun Production Triples Since 2000, 

Fueled by Handgun Purchases, The N.Y. Times (Updated June 

8, 2022), 

https://www.nytimes.com/2022/05/17/us/politics/gunmanufacturing-atf.html. 23 See, e.g., Brief for Illinois, et al. as Amici Curiae Supporting 

Appellee’s Petition for Rehearing, Lara v. Commissioner 

Pennsylvania State Police, 91 F.4th 122 (3d Cir. 2024). 
15 

for a “match . . . in principle, not with precision.” Range, 69 

F.4th at 117 (Krause, J., dissenting). 

It is by now well established that, as then-Judge Barrett 

put it, “founding-era legislatures categorically disarmed groups 

whom they judged to be a threat to the public safety.” Kanter 

v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., 

dissenting), abrogated by Bruen, 142 S. Ct. 2111 (2022). And 

it was the legislatures of the Founding generation that 

determined—consistent with the Second Amendment—which 

groups posed sufficient risk to justify categorical disarmament.

See Range, 69 F.4th at 115 (Shwartz, J., dissenting) (“[U]nder 

Bruen, the relevant inquiry is why a given regulation, such as 

a ban based on one’s status, was enacted and how that 

regulation was implemented.”); id. at 119–128 (Krause, J., 

dissenting) (cataloguing the historical disarmament of groups 

that legislatures judged untrustworthy to follow the law). 

Pennsylvania exercised such legislative judgment when 

it decided that those under 21 categorically pose a danger to 

public safety during times of emergency, and its judgment is 

entitled to deference—at least where, as here, it is supported 

by evidence. Modern crime statistics, of which we can take 

judicial notice,24 confirm that youth under 21 commit violent 

24 Several of the sources that follow are drawn from the District 

Court record, while others may be considered under Federal 

Rule of Evidence 201. See, e.g., Clark v. Governor of N.J., 53 

F.4th 769, 774 (3d Cir. 2022) (taking judicial notice of publicly 

available statistics); Stone v. High Mountain Mining Co., LLC, 

89 F.4th 1246, 1261 n.7 (10th Cir. 2024) (same); United States 

v. United Bhd. of Carpenters and Joiners of America, Loc. 169, 
16 

gun crimes at a far disproportionate rate. In 2019, for example, 

although 18- to 20-year-olds made up less than 4% of the U.S. 

population, they accounted for more than 15% of all homicide 

and manslaughter arrests.25 National data collected by the 

Federal Bureau of Investigation (FBI) also confirms that 

homicide rates peak between the ages of 18 and 20.26 Indeed, 

that age group commits gun homicides at a rate three times 

higher than adults aged 21 or older.27 And “[a]dditional studies 

457 F.2d 210, 214 n.7 (7th Cir. 1972) (taking judicial notice of 

statistics from United States Bureau of Census Reports). 25 See U.S. Dep’t of Just., Crime in the United States, Arrests, 

by Age, 2019, at Table 38, https://ucr.fbi.gov/crime-in-theu.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-38; 

U.S. Census Bureau, Age and Sex Composition in the United 

States: 2019, at Table 1, National Population by 

Characteristics: 2010- 2019, 

https://www.census.gov/data/tables/2019/demo/age-andsex/2019-age-sex-composition.html.  

26 See Daniel W. Webster et al., The Case for Gun Policy 

Reforms in America, Johns Hopkins Ctr. for Gun Policy & 

Research 5 (last updated Feb. 5, 2014), 

http://web.archive.org/web/20160325061021/http:/www.jhsp

h.edu/research/centers-and-institutes/johns-hopkins-centerfor-gun-policy-andresearch/publications/WhitePaper020514_CaseforGunPolicy

Reforms.pdf. 27 Everytown Research & Policy, Everytown for Gun Safety 

(last updated Mar. 1, 2022), 

https://everytownresearch.org/stat/eighteen-to-20-year-oldscommit-gun-homicides-at-a-rate-triple-the-rate-of-those-21-

and-years-older/; see also Jones v. Bonta, 34 F.4th 704, 760 

(9th Cir. 2022) (Stein, J., dissenting in part) (noting that 18- to 
17 

show that at least one in eight victims of mass shootings from 

1992 to 2018 were killed by an 18 to 20-year-old[.]”28 

 Our understanding of why youth commit violent crimes 

has also evolved dramatically in recent decades, further 

reinforcing Pennsylvania’s legislative judgment that young 

people pose a particular danger in carrying firearms during 

states of emergency. We now understand, for example, that 

those under 21 are uniquely predisposed to impulsive, reckless 

behavior because their brains have not yet fully developed.29 

20-year-olds “commit gun homicides at a rate three times 

higher than adults above the age of 21”), vacated on reh’g, 47 

F.4th 1124 (9th Cir. 2022); Hirschfeld v. Bureau of Alcohol, 

Firearms, Tobacco & Explosives, 5 F.4th 407, 478 (4th Cir. 

2021) (Wynn, J., dissenting) (noting that “from 2013 to 2017, 

young adults aged 18 to 20 committed gun homicides at a rate 

nearly four times higher than adults 21 and older”) (alteration 

in original) (internal citations and quotation marks omitted), 

vacated as moot, 14 F.4th 322 (4th Cir. 2021). 

28 Jones, 34 F.4th at 760 (Stein, J., dissenting in part) (citing 

Joshua D. Brown and Amie J. Goodin, Mass Casualty Shooting 

Venues, Types of Firearms, and Age of Perpetrators in the 

United States, 1982–2018, 108 Am. J. Pub. Health 1385, 1386 

(2018)). 

29 See also Nat’l Rifle Ass’n of America, Inc. v. Bureau of 

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 135, 210 

n. 21 (5th Cir. 2012) (“[M]odern scientific research supports 

the commonsense notion that 18-to-20-year-olds tend to be 

more impulsive than young adults aged 21 and over.”), 

abrogated on other grounds by Bruen, 142 S. Ct. 2111; Horsley 

v. Trame, 808 F.3d 1126, 1133 (7th Cir. 2015) (“The evidence 

now is strong that the brain does not cease to mature until the 
18 

Specifically, the prefrontal cortex, which is responsible for 

impulse control and judgment, is the last part of the brain to 

fully mature and continues to develop until a person is in their 

mid-20s.30 By contrast, the limbic system, which controls 

emotions like fear, anger, and pleasure, develops far earlier, 

and young people generally rely heavily on this region of their 

brains to guide their decision-making.31 

As a result, young adults are both uniquely prone to 

negative emotional states32 and uniquely unable to moderate 

their emotional impulses. Indeed, while “a 19-year-old might 

possess a brain that looks ‘adult-like’ and that supports mature 

cognitive performance under calm or ‘neutral’ conditions, that 

same brain tends to look much more like that of a younger kid 

when evocative emotions are triggered, resulting in 

significantly weaker cognitive performance.”33 

early 20s in those relevant parts that govern impulsivity, 

judgment, planning for the future, foresight of consequences, 

and other characteristics that make people morally culpable.”) 

(citation omitted). 

30 See, e.g., Mariam Arain et al., Maturation of the Adolescent 

Brain, 9 Neuropsychiatric Disease & Treatment 449, 453, 456 

(2013); Elizabeth R. Sowell et al., In Vivo Evidence for Postadolescent Brain Maturation in Frontal and Striatal Regions, 

2 Nature Neuroscience 859, 859–60 (1999). 

31 Arain, supra note 30, at 453. 

32 Leah H. Somerville et al., A Time of Change: Behavioral and 

Neural Correlates of Adolescent Sensitivity to Appetitive and 

Aversive Environmental Cues, 72 Brain and Cognition 124, 

125 (2010). 

33 Hirschfeld, 5 F.4th at 476 (Wynn, J., dissenting) (quoting 

Jason Chein, Adolescent Brain Immaturity Makes Pending 
19 

Unsurprisingly, this combination makes young adults 

especially prone to reckless and violent behavior.34 

 While the scarcity and limited lethality of their weapons 

gave our Founding generation little reason to fear the danger 

of youth gun violence, today’s legislatures have good reason to 

do so. And because that group is especially prone to impulsive, 

violent behavior, Pennsylvania’s legislature reasonably 

decided that allowing them to carry firearms in public during 

statewide emergencies, when emotions already run high and 

violence may be widespread, would pose a particular danger to 

public safety. That judgment reflects precisely the type of 

determination that led our Founders to categorically disarm 

other groups they deemed to be dangerous and puts 

Pennsylvania’s statute comfortably within the Nation’s 

historical tradition even at the “First Founding.” 

Execution Inappropriate, Bloomberg Law (Sept. 17, 2020 4:00 

AM), https://www.bloomberglaw.com/bloomberglawnews/uslaw-week/XBBCKGKK000000). 

34 Michael Dreyfuss et al., Teens Impulsively React Rather than 

Retreat from Threat, 36 Developmental Neuroscience 220, 220 

(2014) (“Adolescents commit more crimes per capita than 

children or adults in the United States and in nearly all 

industrialized cultures. Their proclivity toward . . . risk taking 

has been suggested to underlie the inflection in criminal 

activity observed during this time.”).   
20 

D. Without Rehearing, The Majority’s Approach 

Will Leave States Powerless to Address One of 

Society’s Most Pressing Social Concerns. 

Rehearing is also needed because the panel majority 

failed to apply the “more nuanced approach” that Bruen 

prescribes where a statute responds to “unprecedented social 

concerns or dramatic technological changes” beyond our 

Founders’ ken. 142 S. Ct. at 2132. Pennsylvania’s Uniform 

Firearms Act fits that bill. 

Interpersonal gun violence, historians agree, was simply 

not a major concern for the Founding generation.35 Because 

the “black powder, muzzle-loading weapons” in that era were 

“too unreliable and took too long to load,” firearms “were not 

the weapon of choice for those with evil intent[.]”36 And when 

we consider that these were “tight-knit” rural communities 

where “[e]veryone knew everyone else,” “word-of-mouth 

spread quickly,” and the population “knew and agreed on what 

acts were . . . permitted and forbidden,”37 it is not surprising 

that gun violence “simply was not a problem in the Founding 

era that warranted much attention and therefore produced no 

legislation.”38 

35 Cornell (2012), supra note 16, at 1713. 

36 See Saul Cornell, Constitutional Mischiefs and 

Constitutional Remedies: Making Sense of Limits on the Right 

to Keep and Bear Arms in the Founding Era, 51 Fordham Urb. 

L. J. 25, 38 (2023). 

37 Range v. Att’y Gen., 69 F.4th 96, 117 (3d Cir. 2023) (Krause, 

J., dissenting). 

38 Cornell (2012), supra note 16, at 1713. 
21 

In today’s America, by contrast—where firearms 

include automatic assault rifles and high-capacity magazines 

and our population is mobile, diverse, and largely urban—

nearly 50,000 people die from gun-related injuries each year, 

and over 80% of murders involve a firearm.39 Horrific mass 

shootings have also become a daily occurrence, with over 600 

such shootings in 2023 alone,40 and 82 so far in the first three 

months of 2024.41 And as I have explained in Section C, supra, 

the phenomenon of gun violence among those between 18 and 

20 presents a particularly troubling new social concern that our 

Founders had no reason to contemplate. 

The Supreme Court anticipated this situation when it 

recognized in Bruen that “[t]he regulatory challenges posed by 

firearms today are not always the same as those that 

preoccupied the Founders in 1791 or the Reconstruction 

generation in 1868,” and it directed that state laws “implicating 

unprecedented societal concerns or dramatic technological 

changes may require a more nuanced approach.” 142 S. Ct. at 

39 See, e.g., John Gramlich, What the Data Says About Gun 

Deaths in the U.S., PEW Research Ctr. (Apr. 26, 2023), 

https://www.pewresearch.org/short-reads/2023/04/26/whatthe-data-says-about-gun-deaths-in-the-u-s/.  

40 See Molly Bohannon and Ana Faguy, U.S. Faces SecondWorst Year On Record for Mass Shootings—Nearly 650 

Incidents, Forbes (Dec. 25, 2023 9:22 AM), 

https://www.forbes.com/sites/mollybohannon/2023/12/25/usmass-shootings-near-650-this-year-second-worst-total-onrecord/?sh=1ef8729669e8. 41 See Mass Shootings in 2024, Gun Violence Archive (last 

viewed Mar. 22, 2024), 

https://www.gunviolencearchive.org/reports/mass-shooting. 
22 

2132. The panel majority did not heed that counsel, so 

considerations of federalism and comity also compel en banc

rehearing. 

* * * 

The Second Amendment was “intended to endure for 

ages to come, and consequently, to be adapted to the various 

crises of human affairs,” id. at 2132 (citation omitted), not to 

force on modern-day legislatures the fiction that we live in 

1791 or to preclude reasonable responses to problems of gun 

violence that were unfathomable when the Bill of Rights was 

ratified. And both we and the Supreme Court have held the 

states’ understanding of the Second Amendment when they 

incorporated it through the Fourteenth Amendment to be 

relevant and part of “the Nation’s historical tradition of firearm 

regulation.” Bruen, 142 S. Ct. at 2126. The panel majority 

decreed the opposite in a decision that violated 3d Cir. I.O.P. 

9.1, created a split with our sister circuits, and contravened 

Supreme Court precedent. Our refusal to grant rehearing en 

banc in this circumstance is all the more perplexing in light of 

the Supreme Court’s imminent opinion in Rahimi, which will 

necessarily bear on the panel’s reasoning and may well 

abrogate it even as the panel’s mandate issues. 

For all of these reasons, I respectfully dissent from the 

Court’s denial of en banc rehearing and, as we are declining to 

correct our own error, urge the Supreme Court to do so if 

presented the opportunity.