UNI TED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 21-1832

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MADISON M. LARA; SOPHIA KNEPLE Y; LOGAN D. MILLER; SECOND AMENDMENT FOUNDATION, INC.; FIREARMS POLICY COALITION, Appellants

v.

COMMISSIONER PENNSY LVANIA STATE POLICE

__________

On Appeal fro m the United States District Court

Fo r the Western Distri ct of Penn sylvania (D.C. No. 2-20-cv-01582) District Judge: Honorable William S. Stickman, IV

___________

____

SUR PETITION FO R

REHEARI NG

___ ____________

Present: CHAGARES, Chief Judge, JO RDAN, HARDIMAN, SH WARTZ, KRAUSE, RESTREPO, BIBAS, PORT ER, MATEY, PHIPPS, FR EEMAN, MONTGOMERYREEVES, CHUNG, and SMITH,* Circuit Judges

The petition for rehearing fi led by appell ee in the above-en titled case having been

submitted to the judges who p artic ipated in the decisio n o f this Court and to all the other

available circuit judges of the circuit in regul ar active service, an d no judge who

co ncurred in the d ecision having ask ed for rehear ing, and a majority of the judges o f the

___________

____ *Judge Smith’s vote is limited to panel rehearing only.2 circuit in regular service not having voted fo r 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 record1 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 them selves against gun violence more rampant and destructive th an the Founders could have possibly imagined. At a minimu m, 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 trad ition of firearms regulation” 2 informing the constitutionality of modern-day regulations.

Indeed, since the Suprem e 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 Fo unding-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 mont hs, 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 Ri ghts as “a Seco nd Founding”).

2 N.Y. State Rifle & Pi stol 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 th at 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 pa nel majority he re 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 se eking out the “historical analogues” require d 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 inco rrect, 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 shoul d 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 Firear ms 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 me thodology, which would compel a different outcome in this case. Third, en banc review is necessary for error correction: Ev en if we limit ourselves to Founding-era sources, the panel failed to recognize that legislatures in that era were au thorized 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 ma jority opinion for states across the country).

9 See 3d Cir. I.O.P. 9.1.4 evidence subject to judicial notic e. 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 societ al 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 th e Panel Majority’s Novel Methodology.

Confronted with 19th-centu ry regulations supporting the constitutionality of Pennsylv ania’s statutory scheme, the panel majority took the position th at it could simply “set aside” that evidence based on its pr onouncement that “the Second Amendment should be understood according to its public meaning in 1791,” ra ther 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 Amen dment context,

see Lara , 941 F.4th at 133, not only contravened Bruen and other Supreme Court precedent within the Seco nd Amendment
context, see infra , but also violated our Internal Operating Procedures by purporting to ov errule 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 rece nt Second Amendment cases— Bruen included. Whatever “hint[s]” th e panel majority may take from

Bruen

, Lara , 91 F.4th at 133, the Supreme Court there recognized that states are “bound to respec t the right to keep
and bear arms because of the Fourteenth Amen dment, not the Second,” and proceeded to cons ider 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 Am endment 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 afte r its ratification through the end of the 19th century.”).

Until the underlying panel opini on here, our Court, too, has followed the Supreme Court’s instruction and consistently relied upon Reconstruction-er a 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 en slaved or formerly enslaved people and members of Native American tribes.”), abrogated6 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 re jected 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 Appeals 11 —have held Reconstruction- era sources to be both
relevant and informative.

11 As the First Circuit r ecently observed, while Bruen “indeed indicated that founding-era historical precedent is of primary importance for identifying a tradition of comparable regulation,” it also “relied up on 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-cent ury evidence a nd 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 th erefore agree with the decisions of our sister circuits—emphasizing the understanding that prevailed when the States adopted the Fourteenth7 In view of this precedent, en banc rehearing is required
before any subsequent panel has auth ority to hold—let alone
to bind this Court to a ho lding—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 pane ls’ holdings are “binding on subsequent panels” and “no su bsequent panel overrules the holding . . . of a previous panel” because “Court en banc consideration is requir ed 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 hi storical 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 Four teenth 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. 2 018) (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 “methodologica l approach to the Second Amendment” that the Court adopted in Heller , including its rejection of the notion that Re construction-era sources were “illegitimate postenactment legisl ative history.” 142 S. Ct. at 2127 (quotation marks omitted). It also confirmed that
examination of sources from th at era—including “19th-century cases,” congressional and public “discourse after the Civil War,” and the understa nding of post-Civil War
commentators—“was a critical tool of constitutional interpretation” in understandi ng the Second Amendment. Id. at 2127–28 (quotation marks omitte d). 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 ri ght when the Bill of Rights was adopted in 1791,” the Court was explic it that it was not resolving the
“debate on whether courts sh ould primarily rely on the prevailing understanding of an individual right when the
Fourteenth Amendment was ratif ied 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 wh ether 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 denyin g 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 justif y 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 allo ws an opinion resting on an invalid premise to stand; it al so means the panel majority’s holding concerning Reconstruc tion-era sources will not bind this Court going forward. To the contrary, “where our cases conflict, the earlier is the contro lling authority an d 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 uniform ity 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 wh o 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 ca tegorical, predictive judgments about groups that pose particular risks; what, if any, findings legislatures must make to jus tify those judgments; and whether evidence of legislative author ity 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 gr anted, 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 diff erent outcome. Judge Restrepo catalogued the historical evidence that “[a]t the Founding, people under 21 lacked full lega l 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., dissentin g). He also persuasively explained why, even if we reach Bruen ’s second step and determine whether the regulatio n 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 th e 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-balanc ing inquiry” for modern-day regulations, 142 S. Ct. at 2129, it embraced a comparative11 By way of background, before the Fourteenth Amendment was ratified in 1868, a number of states treated 21 as the age of majority 14 and effectively prev ented, or at least hindered, “minors” from ev en 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 (acknowledgi ng 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 directin g 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 indi vidual “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 tu rns 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 posse ssing firearms at all. Thus, as to “how” these prohibitions bu rdened 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 gene ration 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 My ths 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 th e mass production of firearms that began during the wave of Am erican industrialization in the mid-19th century, 18 and it was accompanied by renewed efforts to market gun ownership to th e average American consumer. 19 It was also driven by “the tr auma of the [Civil War] and the enormous increase in the pro duction 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 viol ence perpetuated by groups such

17 Saul Cornell, The Right to Regulate Ar ms 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 pl ayed 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 manufact urers employed new marketing strategies to create a civilian ma rket 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 Pe nnsylvania to regulate the ability of still-maturing young pe ople to carry firearms. 23

In short, both the “how” and the “why” of Pennsylvania’s statute track th ose of its Reconstruction-era analogues, so en banc rehearing would allo w us not just to correct the panel’s mistaken meth odology, 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 ca talogue of statutes from the mid-to-late nineteenth century,” Lara , 91 F.4th at 134, en banc rehearing is warranted becau se 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 thr eat 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 Am endment—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 hist orical disarmament of groups that legislatures judged unt rustworthy 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 wher e, as here, it is supported by evidence. Modern crime stat istics, 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 (1 0th Cir. 2024) (same); United States v. United Bhd. of Carpenters and Joiners of America, Loc. 169

,16 gun crimes at a far disproportiona te rate. In 20 19, for example, although 18- to 20-year-olds made up less than 4% of the U.S. population, they accounted for mo re than 15% of all homicide and manslaughter arrests. 25 National data collected by the Federal Bureau of Investigatio n (FBI) also confirms that homicide rates peak between the ages of 18 and 20. 26 Indeed, that age group commits gun homi cides 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. 19 72) (taking judicial notice of
statistics from United States Bur eau 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.-2 019/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/de mo/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/h ttp:/www.jhsp
h.edu/research/centers-and-in stitutes/johns-hopkins-centerfor-gun-policy-andresearch/publications/White Paper020514_CaseforGunPolicy Reforms.pdf

. 27 Everytown Research & Policy, Everytown for Gun Safety (last updated Mar. 1, 2022), https://everytownresearch.org/s tat/eighteen-to-20-year-oldscommit-gun-homicides-at-a-rat e-triple-the-rate-of-those-21- and-years-older/ ; see also Jones v. Bonta , 34 F.4th 704, 760 (9th Cir. 2022) (Stein, J., dissen ting in part) (noting that 18- to17 show that at least one in eigh t 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 predis posed to impulsive, reckless
behavior because their brains have not yet fully developed. 29

20-year-olds “commit gun homici des 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) (not ing that “from 2013 to 2017, young adults aged 18 to 20 co mmitted 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, Fire arms, & 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 doe s not cease to mature until the18 Specifically, the prefrontal cort ex, which is responsible for impulse control and judgment, is the last part of the brain to fully mature and continues to de velop until a person is in their
mid-20s. 30 By contrast, the limbi c 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 ar e both uniquely prone to negative emotional states 32 and uniquely unable to moderate their emotional impulses. Inde ed, while “a 19-year-old might possess a brain that looks ‘adult-li ke’ 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 pa rts that govern impulsivity, judgment, planning for the futu re, 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 Diseas e & 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 Imma turity Makes Pending19 Unsurprisingly, this combin ation makes young adults especially prone to reckless and violent behavior. 34

While the scarcity and limite d lethality of their weapons gave our Founding generation little reason to fear the danger of youth gun violence, today’s le gislatures have good reason to do so. And because that group is especially prone to impulsive, violent behavior, Pennsylvani a’s legislature reasonably decided that allowing them to ca rry 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 Foun ders to categorically disarm other groups they deemed to be dangerous and puts Pennsylvania’s statute comf ortably 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/XBB CKGKK000000 ).

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 Unite d States and in nearly all industrialized cultures. Their pr oclivity 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 res ponds to “unprecedented social
concerns or dramatic techno logical changes” beyond our
Founders’ ken. 142 S. Ct. at 2132. Pennsylvania’s Uniform
Firearms Act fits that bill

.

Interpersonal gun violence, hi storians agree, was simply not a major concern for the Founding generation. 35 Because the “black powder, muzzle-loadi ng 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 every one else,” “word-of-mouth spread quickly,” and the popula tion “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 atten tion 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 g un-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 violen ce among those between 18 and 20 presents a particularly troub ling 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 regulator y 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 direct ed 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 fo r Mass Shootings—Nearly 650
Incidents , Forbes (Dec. 25, 2023 9:22 AM), https://www.forbes.com/sites/ mollybohannon/20 23/12/25/usmass-shootings-near-650-this-y ear-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 di d not heed that counsel, so
considerations of federalis m 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 Fo urteenth 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 si ster circuits, and contravened Supreme Court precedent. Our refusal to grant rehearing en banc in this circumstance is all th e 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 pa nel’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.