PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-1843

___________

UNITED STATES OF AMERICA

 

v.

DIONTAI MOORE,

Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-21-cr-00121-001)

District Judge: Honorable Robert J. Colville

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Argued on April 16, 2024

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges.

(Filed: August 2, 2024)

Lisa B. Freeland

Stacie M. Fahsel [Argued]

Renee Pietropaolo

Office of Federal Public Defender
2

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

William Glaser [Argued]

United States Department of Justice

Criminal Division

Room 1264

950 Pennsylvania Avenue NW

Washington, DC 20530

Eric G. Olshan

Adam N. Hallowell

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

This appeal arises under the Second Amendment to the 

United States Constitution and presents a question of first 

impression in this Court. Does a convict completing his 
3

sentence on supervised release have a constitutional right to 

possess a firearm? The answer is no. 

I

A

In 2008, federal agents collaborated with Pennsylvania

State Police to investigate Appellant Diontai Moore for drug 

crimes. As part of this investigation, a confidential informant 

bought nearly a gram of cocaine from Moore. The police 

arrested Moore and searched his home, where they found more 

than three grams of cocaine base. Moore was charged with 

distribution of less than five grams of cocaine base. See 21 

U.S.C. § 841(b)(1)(C). He pleaded guilty and was sentenced to 

72 months’ imprisonment followed by 3 years’ supervised 

release.

In 2013, while Moore was on supervised release for that

cocaine conviction, Pittsburgh Police noticed an unusual bulge 

under Moore’s shirt. After a struggle, the officers arrested 

Moore and recovered a handgun from him. Moore was then 

charged with possession of a firearm by a felon, in violation of 

18 U.S.C. § 922(g)(1). In 2015, Moore pleaded guilty. He was 

sentenced to 60 months’ imprisonment followed by 3 years’ 

supervised release. As a condition of his supervised release, 

Moore was not allowed to “possess a firearm, ammunition, 

destructive device, or any other dangerous weapon.” Supp. 

App. 3.

B

Moore was released from prison and began his threeyear term of supervised release in July 2019. Less than two 
4

years later, on a Friday night in March 2021, Moore went out 

drinking with friends to celebrate his birthday. Moore returned 

that night to the Pittsburgh townhome of his fiancée 

Gwendolyn Pullie, where he had been living with Pullie and 

her three minor children for about a year.

Around 4:00 a.m., Moore and Pullie were upstairs 

talking about “how [Moore] went to the club,” when they heard 

the dog barking downstairs in the kitchen. App. 279. Moore 

later described the dog as “going f***ing crazy.” Id. As 

surveillance video footage shows, two figures entered the 

parking lot behind the townhome and broke into Pullie’s car, 

which was parked in a spot next to the townhome’s back door. 

Pullie later testified she felt “terrified” that she was “in harm’s 

way.” App. 181. She also “felt like someone was at [her] back 

door.” App. 184. So she and Moore went downstairs, where 

they saw shadowy figures near the back of the house.

Pullie then went upstairs to grab a handgun that she kept 

in a safe under her bed. She woke up her children, returned 

downstairs, and handed Moore the loaded weapon. Pullie left 

through the front door, taking her children with her. She and 

the children headed for the family’s other car, which was

parked on the street in front of the townhome.

While Pullie left with the children, Moore took the gun 

and went out the back door of the townhome to confront the 

trespassers. The two intruders, who had broken into Pullie’s 

car, ran away at the sight of Moore. While they were fleeing, 

Moore fired three shots. Moore hit one of the intruders in the 

back of the thigh. Shortly after hearing the gunshots, Pullie 
5

drove her children to her cousin’s house, where she dropped 

them off.

Later that weekend, Pullie met with a local detective,

turned in her gun, and spoke about the incident. On Monday, 

Moore called his federal probation officer. He admitted his 

involvement in the shooting and said that “he fired at

individuals he thought were breaking into his residence.” Supp. 

App. 7.

C

Within weeks, Moore was charged as a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

The indictment listed Moore’s previous federal convictions for 

distributing cocaine base and being a felon in possession of a 

firearm, as well as previous state drug trafficking convictions.

Moore pleaded guilty to violating § 922(g)(1). In doing 

so, he reserved the right to argue on appeal that § 922(g)(1) is

unconstitutional. The District Court entered judgment against 

Moore, sentencing him to 84 months’ imprisonment followed 

by 3 years’ supervised release. Moore timely appealed the 

judgment of conviction.

1

1 The District Court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 28 U.S.C. § 1291. We review the 

District Court’s legal conclusions de novo and its factual 

findings for clear error. See United States v. Bergrin, 650 F.3d 

257, 264 (3d Cir. 2011).
6

II

A

The Second Amendment provides that “the right of the 

people to keep and bear Arms, shall not be infringed.” U.S. 

Const. amend. II. As an adult citizen, Moore is one of the 

“people” whom the Second Amendment presumptively 

protects. See Lara v. Comm’r Pa. State Police, 91 F.4th 122, 

127 (3d Cir. 2024). And the charge at issue punishes Moore for 

quintessential Second Amendment conduct: possessing a 

handgun. See District of Columbia v. Heller, 554 U.S. 570, 628

(2008). So the Government bears the burden of justifying its 

regulation. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 

597 U.S. 1, 17 (2022); United States v. Rahimi, 144 S. Ct. 1889, 

1897 (2024).

2

B

The Government can satisfy its burden only “by 

demonstrating that [its regulation] is consistent with the 

Nation’s historical tradition of firearm regulation.” Bruen, 597 

2 That Moore was on supervised release does not relieve the 

Government of its burden to justify its regulation of Moore’s 

arms-bearing conduct. To hold otherwise would relegate the 

Second Amendment to “a second-class right, subject to an 

entirely different body of rules than the other Bill of Rights 

guarantees.” Bruen, 597 U.S. at 70 (cleaned up). The First and 

Fourth Amendments apply to convicts on parole, probation, 

and supervised release. See Jones v. N.C. Prisoners’ Lab. 

Union, Inc., 433 U.S. 119, 125 (1977) (First Amendment);

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (Fourth 

Amendment). So too for the Second Amendment. 
7

U.S. at 24. To do so, it must “identify a well-established and 

representative historical analogue,” which need not be “a 

historical twin” or a “dead ringer.” Id. at 30 (emphasis 

omitted). 

In analyzing the Government’s proposed historical 

analogues, we “must ascertain whether the [challenged] law is 

‘relevantly similar’ to laws that our tradition is understood to 

permit.” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. 

at 29). “Why and how the regulation burdens the right are 

central to this inquiry.” Id. (emphasis added). As compared to 

its historical analogue, a modern regulation must “impose a 

comparable burden on the right of armed self-defense, and . . .

that burden [must be] comparably justified.” Bruen, 597 U.S. 

at 29. In other words, a modern firearms regulation passes 

constitutional muster only if it is “consistent with the principles 

that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at 

1898.

To justify disarming Moore while he was on supervised 

release, the Government cites the tradition of forfeiture laws, 

which temporarily disarmed convicts while they completed 

their sentences. For example, a 1790 Pennsylvania statute

provided that “every person convicted of robbery, burglary, 

sodomy or buggery . . . shall forfeit to the commonwealth all 

. . . goods and chattels whereof he or she was . . . possessed at 

the time the crime was committed . . . and be sentenced to 

undergo a servitude of any term . . . not exceeding ten years.” 

Act of Apr. 5, 1790, 13 Statutes at Large of Pennsylvania, at

511, 511–12 (James T. Mitchell & Henry Flanders eds., 1896). 

That 1790 Pennsylvania law is analogous to disarming

convicts on supervised release because it burdened armsbearing conduct in the same way and for the same purpose. The 
8

law seized all of the convict’s possessions, including his 

weapons, as part of his “servitude” or sentence. Id. So it was 

like disarming a convict on supervised release—which is a 

“part of the same sentence” as a term of imprisonment. Mont 

v. United States, 587 U.S. 514, 524 (2019). And the 

Pennsylvania law burdened the right to bear arms for the same 

reasons that we now burden the rights of convicts on 

supervised release: to deter criminal conduct, protect the 

public, and facilitate the convict’s rehabilitation. Compare 18 

U.S.C. § 3583(c) (instructing courts to consider these factors 

in imposing supervised release), with Act of Apr. 5, 1790, 13 

Statutes at Large of Pennsylvania, at 511 (intending “to 

reform” and “to deter”). 

To be sure, the 1790 Pennsylvania law is not a dead 

ringer for § 922(g)(1). The old law deprived convicts of all 

their goods—including their weapons—while § 922(g)(1) 

deprives them of firearms and ammunition alone. But the 

founding-era law and the modern statute need not be 

“identical.” Rahimi, 144 S. Ct. at 1901. The old law took the 

convict’s possessions, including his weapons, and then 

imprisoned him, preventing reacquisition until the sentence 

was complete. Because it disarmed the convict while he served 

his criminal sentence, the 1790 Pennsylvania law is sufficiently 

analogous to § 922(g)(1) as applied to convicts on supervised 

release.

The relevance of the 1790 law is buttressed by the fact 

that the Pennsylvania Constitution included a precursor to the 

federal Constitution’s Second Amendment. Cf. Roth v. United 

States, 354 U.S. 476, 482 (1957) (state analogues to First 

Amendment). The Pennsylvania Constitution of 1776 

provided: “the people have a right to bear arms for the defence 

of themselves and the state.” Pa. Const. of 1776, ch. I, art. XIII. 
9

And as revised in 1790, it stated: “the right of the citizens to 

bear arms, in defence of themselves and the state, shall not be 

questioned.” Pa. Const. of 1790, art. IX, § XXI. 

At the same time that it provided these guarantees, 

Pennsylvania enacted multiple forfeiture provisions in addition 

to the 1790 law. For example, the legislature stipulated that

counterfeiters were subject to imprisonment “and moreover 

[were required to] forfeit all [their] . . . goods and chattels.” Act 

of Nov. 26, 1779, § 2, 10 Statutes at Large of Pennsylvania, at

12, 15–16 (James T. Mitchell & Henry Flanders eds., 1904). 

Likewise, Pennsylvania regulations intended to protect the 

Philadelphia market from competition required a repeat 

offender to “forfeit all his goods, and [be] imprisoned at the 

discretion of the court.” Act of Apr. 5, 1779, 9 Statutes at Large 

of Pennsylvania, at 387, 388–89 (James T. Mitchell & Henry 

Flanders eds., 1896).

The Pennsylvania forfeiture laws just mentioned were

not outliers; they were sufficiently well-established and 

representative in the late 18th century to serve as historical 

analogues. See Bruen, 597 U.S. at 30. For example, 

Massachusetts provided:

[A]ll persons who, for the space of one hour after 

[an anti-riot] proclamation [is] made . . . shall 

unlawfully, routously, riotously and 

tumultuously continue together, or shall wilfully 

. . . hinder any such officer . . . from making the 

said proclamation, shall forfeit all their . . . goods 

and chattels to this Commonwealth, or such part 

thereof as shall be adjudged by the Justices, 

before whom such offence shall be tried . . . and 
10

suffer imprisonment for a term not exceeding 

twelve months, nor less than six months.

Act of Oct. 28, 1786, 1 Laws of the Commonwealth of 

Massachusetts, at 346, 347 (J.T. Buckingham ed., 1807); see 

also Mass. Const. of 1780, pt. I, art. XVII (recognizing the 

“right to keep and to bear arms”). Virginia had a similar penalty 

for counterfeiting: 

[I]f any person within this commonwealth shall 

forge or counterfeit, alter or erase, any certificate 

of money . . . , every person so offending, and 

being lawfully convicted, shall forfeit his whole 

estate, real and personal, . . . and shall be obliged 

to serve on board some armed vessel . . . without 

wages, not exceeding seven years.

Act of May 5, 1777, ch. 5, § 4, 9 Virginia Statutes at Large, at 

286, 287 (William Waller Hening ed., 1821). Unlike the outlier 

territorial laws that the Supreme Court has rejected, see Bruen, 

597 U.S. at 67–68, these forfeiture laws came from populous 

States that sent the most representatives to the First Congress,

see U.S. Const. art. I, § 2.

Disarming convicts as part of their sentences continued 

into the 19th century. For example, Kentucky criminalized

“go[ing] with force and arms before courts.” Act of Dec. 19, 

1801, § 33, Collection of All the Public and Permanent Acts of 

the General Assembly of Kentucky, at 360, 371 (Harry Toulmin 

ed., 1802) (capitalization altered). Those who violated that law 

were required “to forfeit their arms to the commonwealth,” and 

were “fined and imprisoned at the discretion of a jury.” Id.That 

disarmament was compelled even though the Kentucky 

Constitution stated that “the rights of the citizens to bear arms 
11

in defence of themselves and the State shall not be questioned.”

Ky. Const. of 1799, art. X, § 23. Unlike more general forfeiture 

laws, which required forfeiture of all goods, this law 

specifically required forfeiture of arms as part of a criminal 

sentence.

Similarly, a founding-era Massachusetts law 

specifically disarmed offenders as part of their rehabilitation 

and reintegration into the community. In the wake of Shays’ 

Rebellion, “the Massachusetts legislature made rebels who had 

taken up arms against the state swear allegiance and give up 

their arms for three years before they could be pardoned.” 

Folajtar v. Att’y Gen., 980 F.3d 897, 914 (3d Cir. 2020) (Bibas, 

J., dissenting) (cleaned up). To qualify for pardon, the rebels 

were required to “deliver up their arms to, and take and 

subscribe the oath of allegiance, before some Justice of the 

Peace.” Act of Feb. 16, 1787, ch. VI, 1787 Mass. Acts 555. If 

the rebels satisfied certain conditions for three years, those 

arms would be “returned to the . . . persons who delivered the 

same, at the expiration of the said term of three years.” Id. at 

556. The temporary disarmament imposed by that law is also 

akin to disarmament during a criminal sentence. 

The bottom line is this: during the founding era, 

forfeiture laws temporarily disarmed citizens who had 

committed a wide range of crimes.

3 Convicts could be required

3 The crimes referenced from the early days of the Republic 

differ from Moore’s felon-in-possession crime. But they all 

stand for the proposition that convicts could be disarmed while 

serving their sentences. So those founding-era laws serve as 

relevant analogues to § 922(g)(1), as it applies to convicts on 

supervised release. The context is critical because a law which 

constitutes an “an appropriate analogue” in one context may 
12

to forfeit their weapons and were prevented from reacquiring 

arms until they had finished serving their sentences. This

historical practice of disarming a convict during his sentence—

or as part of the process of qualifying for pardon—is like

temporarily disarming a convict on supervised release. After 

all, “[t]he defendant receives a term of supervised release 

thanks to his initial offense, and . . . it constitutes a part of the 

final sentence for his crime.” United States v. Haymond, 588 

U.S. 634, 648 (2019) (plurality opinion); see also United States 

v. Island, 916 F.3d 249, 252 (3d Cir. 2019) (“The supervised 

release term constitutes part of the original sentence.”) 

(cleaned up). Consistent with our Nation’s history and tradition

of firearms regulation, we hold that convicts may be disarmed

while serving their sentences on supervised release.

Moore tries to distinguish supervised release from 

founding-era forfeiture laws. He argues that supervised release 

differs materially from forfeiture because supervised release

occurs after the term of imprisonment. We disagree primarily 

because “analogical reasoning under the Second Amendment 

is n[ot] a regulatory straightjacket.” Bruen, 597 U.S. at 30. In 

addition, Moore’s argument misconstrues the historical record. 

The forfeiture of property and limitation on rights occurred 

while the convict was serving out his sentence, not only while 

he was physically in prison. For example, Virginia convicts 

served out their sentences by doing forced labor on a ship, not

in prison. See Act of May 5, 1777, 9 Virginia Statutes at Large, 

at 287. And convicts sentenced to prison could serve part of 

their sentences outside of prison. See Act of Dec. 22, 1787, ch. 

“not [be] a proper historical analogue” in another. Rahimi, 144 

S. Ct. at 1902. 
13

11, 1 Public Acts of the General Assembly of North Carolina, 

at 434 (James Iredell and Francois-Xavier Martin, eds. 1804).

Moore also suggests that supervised release cannot be 

subject to historical analogues because it “is a modern 

innovation . . . created by the federal government in 1984.” 

Reply Br. 23 (citing Haymond, 588 U.S. at 651–52). This 

argument is a nonstarter because requiring “regulations 

identical to ones that could be found in 1791” is just “as 

mistaken as applying the protections of the [Second 

Amendment] only to muskets and sabers.” Rahimi, 144 S. Ct. 

at 1898. Although criminal justice worked differently in the 

founding era than it does today, it is also true that a convict 

could be temporarily disarmed as part of his sentence. So the

“prohibition on the possession of firearms” by a convict subject 

to a criminal sentence “fits neatly within the tradition” 

embodied by forfeiture laws. Rahimi, 144 S. Ct. at 1901.

Our conclusion is bolstered by the Supreme Court’s 

recent decision in Rahimi. As the Court explained, early 

American surety and affray laws establish the principle that 

“[w]hen an individual poses a clear threat of physical violence 

to another, the threatening individual may be disarmed.” 

Rahimi, 144 S. Ct. at 1901. The Court applied that principle to 

uphold the federal law prohibiting an individual subject to a 

domestic violence restraining order from possessing firearms. 

See id. (citing 18 U.S.C. § 922(g)(8)).Taken together, the early 

American forfeiture laws—which required forfeiting property 

in general and arms in particular—likewise yield the principle 

that a convict may be disarmed while he completes his sentence 

and reintegrates into society. And this principle justifies 

applying § 922(g)(1) to Moore, a convict on supervised 

release. 
14

C

Moore’s other counterarguments are unpersuasive.

First, Moore argues that his status as a supervised releasee 

cannot support his felon-in-possession conviction. According 

to Moore, we may consider only the facts alleged in the 

indictment—such as the predicate offenses that made him a 

felon. But Moore cites no authority to support this proposition. 

That is unsurprising because an as-applied challenge requires

us to ask whether a statute’s “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) (cleaned up). “In order to mount a 

successful as-applied challenge, [Moore] must show that under 

these particular circumstances he was deprived of a 

constitutional right.” Id. at 406 (cleaned up). And “these 

particular circumstances” include facts beyond the predicate 

offenses alleged in the indictment. So the circumstances of a 

criminal offense can justify rejecting an as-applied challenge 

to a conviction regardless of whether they were charged. This 

is especially so where, as here, no party questions the fact that 

we deem constitutionally relevant: Moore was on supervised 

release when he possessed the firearm. See Moore Br. 5 

(conceding this fact). 

Moore also argues that § 922(g)(1) violates the Second 

Amendment as applied to his possession of a firearm for 

protection at home. He notes that self-defense is the “central 

component” of the right, and “the home” is where the need for 

self-defense is “most acute.” Moore Br. 44 (quoting Heller, 

554 U.S. at 599, 628). Those truisms about the core of the 

Second Amendment do not dictate the outcome here. A 

prisoner’s cell is his temporary home—and a prisoner may feel 

the need to defend himself against other prisoners—but that 
15

does not entitle him to keep a firearm in prison. “Persons 

accused of crime, upon their arrest, have constantly been 

divested of their arms, without the legality of the act having 

ever been questioned.” State v. Buzzard, 4 Ark. 18, 21 (Ark. 

1842) (opinion of Ringo, C.J.). A prisoner on house arrest does 

not necessarily have a right to keep a weapon at home for selfdefense, even though typical citizens do. The same is true for 

a prisoner on supervised release.

4

Because history and tradition support disarming 

convicts who are completing their sentences, we reject 

Moore’s as-applied challenge to his conviction for violating 

§ 922(g)(1).5

* * *

A convict completing his sentence on supervised release 

does not have a Second Amendment right to possess a firearm. 

So 18 U.S.C. § 922(g)(1) is constitutional as applied to Moore, 

and we will affirm his judgment of conviction. 

4 Of course, the doctrine of necessity or justification “is a valid 

defense to a felon-in-possession charge.” United States v. 

Alston, 526 F.3d 91, 94 (3d Cir. 2008). But Moore failed to 

preserve the argument that this defense applies.

5 Since we reject Moore’s as-applied challenge to § 922(g)(1), 

his facial challenge also fails: he cannot “establish that no set 

of circumstances exists under which the Act would be valid.” 

Rahimi, 144 S. Ct. at 1898 (cleaned up).