United States Court of Appeals
for the Fifth Circuit
____________
No. 22-60596
____________
United States of America,
Plaintiff—Appellee,
versus
Patrick Darnell Daniels, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:22-CR-58-1
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a fire-
arm if he is an “unlawful user” of a controlled substance. Patrick Daniels is
one such “unlawful user”—he admitted to smoking marihuana multiple days
per month. But the government presented no evidence that he was intoxi-
cated at the time of arrest, nor did it identify when he last had used mari-
huana. Still, based on his confession to regular usage, a jury convicted Dan-
iels of violating § 922(g)(3).
The question is whether Daniels’s conviction violates his right to bear
United States Court of Appeals
Fifth Circuit
FILED
August 9, 2023
Lyle W. Cayce
Clerk
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2
arms. The answer depends on whether § 922(g)(3) is consistent with our
nation’s “historical tradition of firearm regulation.” N.Y. State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply
challenging question.
Throughout American history, laws have regulated the combination
of guns and intoxicating substances. But at no point in the 18th or 19th cen-
tury did the government disarm individuals who used drugs or alcohol at one
time from possessing guns at another. A few states banned carrying a weapon
while actively under the influence, but those statutes did not emerge until
well after the Civil War. Section 922(g)(3)—the first federal law of its kind—
was not enacted until 1968, nearly two centuries after the Second Amend-
ment was adopted.
In short, our history and tradition may support some limits on an
intoxicated person’s right to carry a weapon, but it does not justify disarming
a sober citizen based exclusively on his past drug usage. Nor do more gen-
eralized traditions of disarming dangerous persons support this restriction on
nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the
Second Amendment. We reverse the judgment of conviction and render a
dismissal of the indictment.
I.
In April 2022, two law enforcement officers pulled Daniels over for
driving without a license plate. One of the officers—an agent with the Drug
Enforcement Administration (“DEA”)—approached the vehicle and recog-
nized the smell of marihuana. He searched the cabin and found several mari-
huana cigarette butts in the ashtray. In addition to the drugs, the officers
found two loaded firearms: a 9mm pistol and a semi-automatic rifle. Daniels
was taken into custody and transported to the local DEA office.
At no point that night did the DEA administer a drug test or ask
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Daniels whether he was under the influence; nor did the officers note or tes-
tify that he appeared intoxicated. But after Daniels was Mirandized at the
station, he admitted that he had smoked marihuana since high school and was
still a regular user. When asked how often he smoked, he confirmed he used
marihuana “approximately fourteen days out of a month.”
Based on his admission, Daniels was charged with violating 18 U.S.C.
§ 922(g)(3), which makes it illegal for any person “who is an unlawful user
of or addicted to any controlled substance . . . to . . . possess . . . any firearm.”
An “unlawful user” is someone who uses illegal drugs regularly and in some
temporal proximity to the gun possession. See United States v. McCowan,
469 F.3d 386, 392 (5th Cir. 2006).
While Daniels was under indictment, the Supreme Court decided
Bruen. It clarified that firearms regulations are unconstitutional unless they
are firmly rooted in our nation’s history and tradition of gun regulation. See
142 S. Ct. at 2129–30. Daniels immediately moved to dismiss the indictment,
claiming that § 922(g)(3) is unconstitutional under that new standard.
The district court denied the motion. See United States v. Daniels,
610 F. Supp. 3d 892, 892 (S.D. Miss. 2022). It expressed some doubt that
Daniels was part of “the people” whom the Second Amendment protects, as
Daniels was not a “law abiding, responsible citizen[].” Id. at 894. Neverthe-
less, assuming that Daniels had a right to bear arms, the court found that
§ 922(g)(3) was a longstanding gun regulation. See id. at 895. It compared
§ 922(g)(3) to laws disarming felons and the mentally ill that Heller called
“presumptively lawful.” Id. at 895 (quoting District of Columbia v. Heller,
554 U.S. 570, 627 n.26 (2008)). Congress passed § 922(g)(3) in 1968, only
after many states had similarly banned habitual drug abusers from possessing
guns. Id. at 896. The district court placed great weight on that regulatory
tradition. It engaged with few historical sources from the Founding or
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Reconstruction, but it relied on statements from other courts—notably all
predating Bruen—that § 922(g)(3) was supported by the historical practice
of disarming those who “exhibit a dangerous lack of self-control.” Id. at 897.
A jury found Daniels guilty. He was sentenced to nearly four years in
prison and three years of supervised release. By nature of his § 922(g)(3)
felony, Daniels is also barred for life from possessing a firearm. See 18 U.S.C.
§ 922(g)(1).
Daniels appeals his conviction, reasserting the Second Amendment
challenge that he raised before trial.
1
As with all constitutional questions, we
consider the issue de novo. United States v. Perez-Macias, 335 F.3d 421, 425
(5th Cir. 2003).
II.
The Second Amendment protects the right of individuals to “keep
and bear” firearms for their self-defense. U.S. Const. amend. II; see Hel-
ler, 554 U.S. at 595. But even fundamental rights have limits. See Bruen,
142 S. Ct. at 2128. Before Bruen, our circuit evaluated the legality of gun
restrictions using the familiar standards of scrutiny. See United States v.
McGinnis, 956 F.3d 747, 753–54 (5th Cir. 2020). If legislation infringed on
the historical right to bear arms, we asked whether the government had a suf-
ficiently strong interest and whether its firearm regulation was sufficiently
tailored. If a law breached the core of the Second Amendment liberty, we
applied strict scrutiny; if not, we applied intermediate scrutiny. Id. at 754.
Bruen, 142 S. Ct. at 2129−31, decisively rejected that kind of analysis.
In place of means-end balancing, Bruen “requires” us to interpret the Second
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1
Daniels also contends that § 922(g)(3) is unconstitutionally vague and that there
was insufficient evidence for a reasonable jury to convict. Because we hold that § 922(g)(3)
is unconstitutional as applied to Daniels, we need not address his additional challenges.
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Amendment in light of its original public meaning. Id. at 2126, 2131. As the
Court explained, the Second Amendment codified a “pre-existing right” with
pre-existing limits. Id. at 2127 (quoting Heller, 554 U.S. at 592). To ascertain
those limits, history is our heuristic. Because historical gun regulations
evince the kind of limits that were well-understood at the time the Second
Amendment was ratified, a regulation that is inconsistent with those limits is
inconsistent with the Second Amendment. Id.
To determine whether a modern firearms law is unconstitutional, we
now proceed in two steps. First, we ask whether the Second Amendment
applies by its terms. Id. at 2129–30. “[W]hen the Second Amendment’s
plain text covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 2126. Second, we ask whether a given gun
restriction is “consistent with the Nation’s historical tradition of firearm
regulation.” Id. at 2130. The government bears the burden of demonstrating
a tradition supporting the challenged law. Id. at 2130. Only by showing that
the law does not tread on the historical scope of the right can the government
“justify its regulation.” Id.
The second step requires both close attention to history and analogical
reasoning. Bruen did not forswear all legislative innovation. To the contrary,
“the Constitution can, and must, apply to circumstances beyond those the
Founders specifically anticipated.” Id. at 2132. What we are looking for is a
“tradition”—well-accepted limits on the right to bear arms manifested by a
tangible practice of comparable gun regulations. But how do we know
whether an older regulatory practice is “comparable”?
Bruen helpfully gave us two conceptual pathways. If the modern regu-
lation addresses “a general societal problem that has persisted since the 18th
century,” then “the lack of a distinctly similar historical regulation address-
ing that problem is relevant evidence that the challenged regulation is incon-
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sistent with the Second Amendment.” Id. at 2131. But if a modern law
addresses “unprecedented societal concerns or dramatic technological
changes,” it calls for a “more nuanced approach.” Id. at 2132. We must
reason by analogy to determine whether older regulations are “relevantly
similar” to the modern law. Id.
Bruen acknowledged the difficulty of determining whether two laws
are “relevantly similar.” Id. Bruen clarified that two laws are “relevantly
similar” if they share a common “why” and “how”; they must both address
a comparable problem (the “why”) and place a comparable burden on the
rightsholder (the “how”). Id. at 2132–33.
In all of that, Bruen reminded us that we are looking for a “represen-
tative historical analogue, not a historical twin.” Id. at 2133 (emphasis
removed). It is not a death knell to the government that the challenged
regulation did not previously exist. What matters is whether a conceptual fit
exists between the old law and the new. Deciding whether there is a match
between historical and modern regulations requires the exercise of both
analogical reasoning and sound judgment. Nevertheless, we hew closely to
Bruen’s own reasoning and hold the government to its heavy burden.
A.
We begin with the threshold question: whether the Second Amend-
ment even applies to Daniels.
The right to bear arms is held by “the people.” U.S. Const.
amend. II. That phrase “unambiguously refers to all members of the political
community, not an unspecified subset.” Heller, 554 U.S. at 580. Indeed, the
Bill of Rights uses the phrase “the people” five times. In each place, it refers
to all members of our political community, not a special group of upright
citizens. Id. (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 265
(1990)). Based on that consistent usage, Heller concluded that “the Second
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Amendment right is exercised individually and belongs to all Americans.”
Heller, 554 U.S. at 581 (emphasis added).
Even as a marihuana user, Daniels is a member of our political com-
munity. Therefore, he has a presumptive right to bear arms. By infringing
on that right, § 922(g)(3) contradicts the plain text of the Second
Amendment.
True, Heller described the Second Amendment as applying to “law-
abiding, responsible citizens.” Heller, 554 U.S. at 635. And Bruen used the
phrase “law-abiding” fourteen times, including in the opening sentence,
where it says that the Second Amendment “protect[s] the right of an ordin-
ary, law-abiding citizen to possess a handgun.” 142 S. Ct. at 2122 (emphasis
added). The government seizes on that language and insists that the Second
Amendment does not extend to Daniels because he is a criminal.
But we cannot read too much into the Supreme Court’s chosen epi-
thet. More than just “model citizen[s]” enjoy the right to bear arms. United
States v. Rahimi, 61 F.4th 443, 453 (5th Cir. 2023), cert. granted, No. 22-915,
2023 WL 4278450 (June 30, 2023). Indeed, Rahimi held that citizens accused
of domestic violence still had Second Amendment rights. It reasoned that
when Heller and Bruen used the phrase “law-abiding,” it was just “short-
hand” to “exclude from the . . . discussion” the mentally ill and felons, peo-
ple who were historically “stripped of their Second Amendment rights.”
Id. at 452. All others are presumptively included in the Second Amend-
ment’s ambit. Because Daniels is not a felon or mentally ill, Rahimi’s treat-
ment of the “law-abiding” moniker suggests that he has presumptive Second
Amendment rights as well.
Still, Heller’s and Bruen’s emphasis on “law-abiding” citizens hints
that Congress and state legislatures have greater latitude to limit the gun lib-
erties of the lawless. But, as a general rule, limitations on the Second Amend-
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ment come from the traditionally understood restrictions on the right to bear
arms, not because ordinary citizens are categorically excluded from the privi-
lege. See Rahimi, 61 F.4th at 453.
2
Once we conclude that Daniels has presumptive Second Amendment
rights, the focus shifts to step two of the Bruen analysis: whether history and
tradition support § 922(g)(3).
B.
Before we decide whether § 922(g)(3) is consistent with our tradition
of gun regulation, we must first ask a methodological question: What kind of
similarity are we looking for? “Distinct” similarity or a less precise “rele-
vant” similarity? See Bruen, 142 S. Ct. at 2131–32. That depends on whether
§ 922(g)(3) “addresses a general societal problem that has persisted since the
18th century” or an “unprecedented societal concern[]” that the Founding
generation did not experience. Id. at 2131–32.
Bruen does not require more than “relevant” similarity here. It is true
that the Founding generation was familiar with intoxication via alcohol,
3
and
it was familiar with marihuana plants.
4
But the Founders grew hemp to make
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2
That accords with the holding in Range v. Att’y General United States of America,
69 F.4th 96, 101–03 (3d Cir. 2023) (en banc), where the court held that a man convicted of
a false statement was part of “the people” and had Second Amendment rights, even though
he was not “law-abiding.” Range relied in part on then-Judge Barrett’s dissent in Kanter
v. Barr, 919 F.3d 437, 452 (7th Cir. 2019), in which she reasoned that “all people have the
right to keep and bear arms,” but “history and tradition support Congress’s power to strip
certain groups of that right.”
3
W.J. Rorabaugh, The Alcoholic Republic: An American Tra-
dition 10 (1981) (“[I]n 1770 the annual per capita intake of alcohol from all sources was
3.5 gallons. In the years following the Revolution the amount declined . . . . But after 1800,
as the quantity of spirits consumed increased, the total quantity of alcohol consumed from
all sources increased until it reached a peak of nearly 4 gallons per capita in 1830.”).
4
See, e.g., Benjamin Franklin, A Modest Inquiry into the Nature
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rope.
5
They were not familiar with widespread use of marihuana as a nar-
cotic, nor the modern drug trade.
6
Thus, though intoxication generally was
a persistent social problem, see Bruen 142 S. Ct. at 2131, the Founding gen-
eration had no occasion to consider the relationship between firearms and
intoxication via cannabis.
7
Although marihuana might be comparable in
some ways to alcohol or tobacco, merely by making the comparison we have
moved past the hunt for a distinctly similar law and are engaged in analogical
reasoning.
Indeed, Bruen’s discussion of “distinct” and “relevant” similarity
seems aimed at interpreting historical silence. That is, when the historical
_____________________
and Necessity of a Paper Currency (1729), reprinted in 2 The Works of
Benjamin Franklin 253, 275 (Boston, Hilliard, Gray & Co. 1836) (claiming that
America was “very capable” of growing hemp). George Washington himself cultivated
hemp. 1 The Diaries of George Washington 1748-1799, at 213 (John C. Fitz-
patrick ed., 1925).
5
See Thomas Paine, Common Sense (1776), in 1 The Political Writ-
ings of Thomas Paine 15, 52 (Charlestown, George Davidson 1824) (“Hemp flour-
ishes even to rankness, so that we need not want cordage.”).
6
Some post-colonial books and newspapers noted that people in the Middle East
used hemp as an intoxicant. See, e.g., 3 C.S. Sonnini, Travels in Upper and
Lower Egypt: Undertaken by Order of the Old Government of
France 92 (Henry Hunter trans., London 1807). But the novelty of those reports from
faraway lands demonstrates the absence of marihuana intoxication in America at the
Founding.
7
See David F. Musto, The American Experience with Stimulants and Opiates,
2 Persps. on Crime & Just. 51, 51 (1998) (“[M]ost [non-alcoholic] drugs were not
familiar products early in the 19th century . . . .”); see also Richard J. Bonnie & Charles H.
Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal
History of American Marijuana Prohibition, 56 Va. L. Rev. 971, 985–87, 1010–11 (1970)
(describing how American society gradually realized the social effects of narcotics in the
late 1800s and began regulating them at the turn of the century); see also id. at 1011 (“[From
1914–31], we can find no evidence of public concern for, or understanding of, marijuana,
even in those states that banned it . . . . Observers in the middle and late 1930’s agreed that
marijuana was . . . a very new phenomenon on the national scene.”).
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record reveals no regulations of a particular kind, we could interpret that
silence in one of two ways. We could say that it means nothing (i.e., neither
approval nor disapproval), or we could count silence as evidence that the
public did not approve of such a regulation. Bruen says we should make the
latter inference, at least when the public experienced the harm the modern-
day regulation attempts to address. Bruen, 142 S. Ct. at 2131. By contrast,
when the ratifying public did not confront a particular harm, its failure to
regulate it says little about whether it approved such regulation.
In that case, we look instead for analogues—similar harms that the
Founding generation did confront and the regulations they used to address
them. Id. at 2132. Just as Founding-era prohibitions on firearms in “sensitive
places” can extend to “new and analogous sensitive places,” id. at 2133, we
can compare the Founders’ treatment of one problem to new problems that
the Founders could not have anticipated.
Even so, the government has the burden to find and explicate the
historical sources that support the constitutionality of § 922(g)(3). Rahimi,
61 F.4th at 455 (citing Bruen, 142 S. Ct. at 2132–33). Here, the government’s
proffered analogues fall into three general buckets: (1) statutes disarming
intoxicated individuals, (2) statutes disarming the mentally ill or insane, and
(3) statutes disarming those adjudged dangerous or disloyal.
8
Each deserves
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8
We limit ourselves to the record amassed by the district court, the parties, and
the amici who offered additional historical materials in response to this court’s order on
June 6, 2023. See Bruen, 142 S. Ct. at 2130 n.6 (“Heller’s text-and-history test . . . [requires]
resolv[ing] legal questions presented in particular cases or controversies. . . . Courts are
thus entitled to decide a case based on the historical record compiled by the parties.”).
Still, notable repositories of historical gun laws—such as the database maintained by the
Duke Center for Firearms Law—do not reveal additional probative statutes. See Repository
of Historical Gun Laws, Duke Ctr. for Firearms L.,
https://firearmslaw.duke.edu/repository/ (last visited July 20, 2023).
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independent consideration.
1.
Because there was little regulation of drugs (related to guns or
otherwise) until the late-19th century,
9
intoxication via alcohol is the next-
closest comparator. Throughout the colonial period and into the 19th cen-
tury, Americans drank alcohol—and lots of it.
10
Common sense indicates
that individuals who are impaired by alcohol lack the self-restraint to handle
deadly weapons safely. So it is unsurprising to find historical laws dealing
with guns and alcohol. Such rules are relevant to our history and tradition of
gun regulation.
Unfortunately for the government, that regulatory tradition is sparse
and limited during the relevant time periods. Despite the prevalence of alco-
hol and alcohol abuse, neither the government nor amici identify any
restrictions at the Founding that approximate § 922(g)(3). Although a few
states after the Civil War prohibited carrying weapons while under the influ-
ence, none barred gun possession by regular drinkers.
a.
Founding-era statutes concerning guns and alcohol were few. They
were also limited in scope and duration. The laws that did exist had two
primary concerns: (1) the misuse of weapons while intoxicated and (2) the
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9
See Bonnie & Whitebread, supra note 7, at 985–86.
10
John Adams claimed that Americans “exceed all other and millions of people in
the world in this degrading, beastly vice of intemperance.” Letter from John Adams to
William Willis (Feb. 21, 1819), in 10 The Works of John Adams, Second Pres-
ident of the United States 365, 365 (Charles Francis Adams ed., Boston, Little,
Brown & Co. 1856); see also Musto, supra note 7, at 52 (finding that “[i]n the early
Republic,” there was “an extremely high level of alcohol consumption (chiefly, distilled
spirits)”).
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discipline of state militias.
Consider the first group of statutes. In 1656, Virginia banned
“shoot[ing] any gunns at drinkeing.”
11
But in historical context, that was not
a disarming regulation like § 922(g)(3). Virginia was a brand-new colony at
the time. The 1656 statute was explicitly passed to conserve gunpowder,
which was at a premium, and because ill-timed gunshots might be mistaken
for a signal that local Indians were attacking.
12
Not only was the statute
enacted for a different purpose, but it did not even ban gun possession or
carry—it only prevented the colonists from misusing the guns they did have
during bouts of drinking.
Another law, passed by New York in 1771, prohibited citizens from
firing guns from December 31 to January 2 because of the “great Damages”
done by those “intoxicated with Liquor” during New Year’s celebrations.
13
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11
Acts of Mar. 10, 1655–56, Act 12, reprinted in 1 The Statutes at Large;
Being a Collection of All the Laws of Virginia, from the First Ses-
sion of the Legislature in the year 1619, at 401, 401–02 (William Waller Hen-
ing ed., New York, R. & W. & G. Bartow 1823). As a historical note, some old statutes are
dated with dual years because, until 1752, the British colonies dated the new year from
March 25 (the Feast of the Annunciation). Thus, a law marked “1655” between January 1
and March 24 was actually passed in 1656 according to the New Style (Gregorian) Calen-
dar. See Colonial Records & Topics, Conn. State Libr.,
https://libguides.ctstatelibrary.org/hg/colonialresearch/calendar (last visited July 9,
2023).
12
According to the statute, the misuse of weapons while intoxicated furthered
“that beastly vice[:] spending much powder in vaine” instead of “reserve[ing] [it] against
the comon enemie,” “the Indians.” Acts of Mar. 10, 1655–56, Act 12, reprinted in 1 The
Statutes at Large, supra note 11, at 401. Plus, “[t]he only means for the discovery
of [Indian] plotts is by allarms, of which no certainty can be had in respect of the frequent
shooting of gunns in drinking.” Id. at 401. The 1656 law was a descendant of a 1632 law,
which prevented “spend[ing] powder unnecessaril[y] . . . in dringinge or enterteynments.”
Acts of Feb. 24, 1631–32, Act 50, reprinted in 1 The Statutes at Large, supra note 11,
at 155, 173.
13
Act of Feb. 16, 1771, ch. 1501, reprinted in 5 The Colonial Laws of New
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The statute had a similar purpose as § 922(3) does—preventing public harm
by individuals under the influence. Nevertheless, the law was strikingly nar-
row. It applied on only three days out of the year; it only prevented firing
guns (not possessing them); and it applied only to those under the influence,
not habitual drinkers.
Beyond that duet of colonial regulations—separated by over a
century—the government identifies no Founding-era law or practice of
disarming ordinary citizens for drunkenness, even if that intoxication was
routine.
Instead, the government points to a second group of statutes regulat-
ing militia service. For example, a soldier could be “disarm[ed]” if he
showed up for militia service in New Jersey “disguised in Liquor.”
14
Pennsylvania did the same in 1780.
15
For related reasons, dram shops were
prohibited from selling to local soldiers.
16
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York from the Year 1664 to the Revolution 244, 244–245 (Albany, James B.
Lyon 1894).
14
Act of May 8, 1746, ch. 200, § 3, reprinted in Acts of the General
Assembly of the Province of New-Jersey 140, 140–41 (Samuel Allison ed.,
Burlington, Isaac Collins 1776).
15
Act of Mar. 20, 1780, ch. 902, § 45, reprinted in 2 Military Obligation:
The American Tradition, pt. 11, at 75, 97 (Arthur Vollmer ed., 1947) (“[I]f any
non-commissioned officer or private shall . . . be found drunk . . . he shall be disarmed
. . . until the company is dismissed . . . .”). Later, some states excluded “common drunk-
ards” from militia service. See, e.g., An Act to regulate the Militia, § 1, reprinted in Public
Laws of the State of Rhode-Island and Providence Plantations 501,
503 (Providence, Knowles & Vose 1844).
16
See, e.g., Act of May 22, 1756, reprinted in 2 Military Obligation, supra
note 15, pt. 5, at 83, 93 (Arthur Vollmer ed., 1947) (Maryland statute); Act of May 8, 1703,
§ 19, reprinted in 2 Military Obligation, supra note 15, pt. 13, at 8, 13 (South Caro-
lina statute). It is not clear how strictly those laws were enforced, however. Founding-era
militias were notorious for imbibing heavily. One officer wrote that it was “the universal
custom, in all regiments of the militia . . . for the officers, on every muster day, to get
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14
Those laws, however, are even less probative. For one thing, their
purpose is different. They exist to ensure a competent military—a service-
member cannot perform his duties if he is impaired. Furthermore, the limi-
tations applied only to the militia; none of the laws spoke to the ability of
militiamen to carry outside of their military service. At the Founding, as
today, restrictions on the liberties of servicemen tell us little about the limits
acceptable for the general public.
Given the prevalence of drinking at the Founding, that handful of laws
puts the government on shaky footing. The government has failed to identify
any relevant tradition at the Founding of disarming ordinary citizens who
consumed alcohol.
b.
The government’s Reconstruction-era evidence, though stronger,
still falls short of the history and tradition that could validate § 922(g)(3).
Between 1868 and 1883, three states prohibited carrying firearms
while intoxicated: Kansas, Missouri, and Wisconsin.
17
Missouri’s law was
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gloriously drunk in their country’s service.” See Reminiscences of a Retired Militia Offi-
cer: No. IV, reprinted in 3 The New-England Magazine 110, 111 (Boston, J. T. & E.
Buckingham 1832).
17
Art. 9, § 282, in The General Statutes of the State of Kansas
378, 378 (Lawrence, John Speer 1868) (“[A]ny person under the influence of intoxicating
drink . . . who shall be found . . . carrying on his person a pistol . . . or other deadly weapon,
shall be subject to arrest . . . .”); Act of Mar. 5, 1883, § 1, reprinted in Laws of Missouri
Passed at the Session of the Thirty-Second General Assembly 76, 76
(Jefferson City, State J. Co. 1883) (“If any person . . . shall have or carry any [firearms]
upon or about his person. when intoxicated or under the influence of intoxicating drinks
. . . he shall [be punished].”); Act of Apr. 3, 1883, ch. 329, § 3, reprinted in 1 The Laws
of Wisconsin 290, 290 (Madison, Democrat Printing Co. 1883) (“It shall be unlawful
for any person in a state of intoxication, to go armed with any pistol or revolver.”). Okla-
homa Territory banned all public carry of pistols in 1890 and specifically prohibited public
officers from carrying while intoxicated. See Bruen, 142 S. Ct. at 2154; Art. 47, § 4, in The
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challenged under the state constitution but was upheld by the Missouri
Supreme Court. State v. Shelby, 2 S.W. 468 (Mo. 1886). The opinion ac-
knowledged that the state constitution “secure[d] to the citizen the right to
bear arms in the defense of his home, person, and property.” Id. at 469. But
the court reasoned that if the state could regulate the “manner in which arms
may be borne,” there is “no good reason . . . why the legislature may not do
the same thing with reference to the condition of the person who carries such
weapons.” Id. The ban on intoxicated carry was therefore “in perfect har-
mony with the constitution.” Id.
Those laws come closer to supporting § 922(g)(3), but they are
notably few. The Bruen Court doubted that three colonial-era laws could
suffice to show a tradition, let alone three laws passed eighty to ninety years
after the Second Amendment was ratified. See 142 S. Ct. at 2142.
More fatally, § 922(g)(3) is substantially broader than the postbellum
intoxication laws. On Bruen’s two axes of relevant similarity, the postbellum
laws and § 922(g)(3) share a common “why”: preventing public harm by
individuals who lack self-control and carry deadly weapons.
18
But the “how”
_____________________
Statutes of Oklahoma 495, 495 (Will T. Little et al. eds., Guthrie, State Capital
Printing Co. 1891).
In a similar vein (but less relevant here), Mississippi limited the sale of small
firearms to people who were actively intoxicated. Ch. 77, § 2986, in The Revised Code
of the Statute Laws of the State of Mississippi 776, 776 (J.A.P. Campbell
ed., Jackson, J.L. Power 1880). And in 1899, South Carolina prohibited the “discharge [of]
any gun, pistol, or other firearm . . . within fifty yards of any public road” while “under the
influence[] of intoxicating liquors.” Ch. 12, § 252, in 2 Code of Laws of South
Carolina, 1902, at 318, 318 (1902) (emphasis added).
18
Compare Shelby, 2 S.W. at 469 (acknowledging the obvious “mischief to be
apprehended from an intoxicated person going abroad with fire-arms”), with Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983) (“Congress’ intent in enacting
[§ 922(g)] was to keep firearms out of the hands of presumptively risky people.”).
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is different. At most, the postbellum statutes support the banning the carry
of firearms while under the influence. Section 922(g)(3) bans all possession,
and it does so for an undefined set of “user[s],” even if they are not under
the influence.
As applied to Daniels, § 922(g)(3) is a significantly greater restriction
of his rights than were any of the 19th-century laws. Although the older laws’
bans on “carry” are likely analogous to § 922(g)(3)’s ban on “posses-
s[ion],”
19
there is a considerable difference between someone who is actively
intoxicated and someone who is an “unlawful user” under § 922(g)(3). The
statutory term “unlawful user” captures regular users of marihuana, but its
temporal nexus is vague—it does not specify how recently an individual must
“use” drugs to qualify for the prohibition.
20
Daniels himself admitted to
smoking marihuana fourteen days a month, but we do not know how much
he used at those times, and the government presented no evidence that
Daniels was intoxicated at the time he was found with a gun. Indeed, under
the government’s reasoning, Congress could ban gun possession by anyone
who has multiple alcoholic drinks a week from possessing guns based on the
postbellum intoxicated carry laws. The analogical reasoning Bruen pre-
scribed cannot stretch that far.
A further problem with the Reconstruction-era statutes is precisely
_____________________
19
Possession for the purposes of § 922(g)(3) includes either “direct physical
control” over a weapon or “‘dominion or control’ over the thing itself or the area in which
it was found.” United States v. Jones, 484 F.3d 783, 787 (5th Cir. 2007). Though that is
not coextensive with the concept of “carry,” it is analogous, at least here, where Daniels
was in the same vehicle as his firearms.
20
According to the implementing rules for § 922(g)(3), “[a] person may be an
unlawful current user of a controlled substance even though the substance is not being used
at the precise time the person . . . possesses a firearm.” 27 C.F.R. § 478.11. An inference
of “current use” can even be drawn from “a conviction for use or possession of a controlled
substance within the past year.” Id. (emphasis added).
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that they emerged during and after Reconstruction. Bruen did not discount
the relevance of late-19th-century history, but it insisted that the Second
Amendment’s “meaning is fixed according to the understandings of those
who ratified it.” Bruen, 142 S. Ct. at 2132. A tradition cannot inform the
original meaning of the Bill of Rights if it emerges one hundred years later.
Id.; see also id. at 2162–63 (Barrett, J., concurring). When 19th-century
practice is inconsistent with the categorical protection of the Second Amend-
ment, the “text controls.” Id. at 2137 (emphasis added).
Admittedly, there is an “ongoing scholarly debate” about whether the
right to bear arms acquired new meaning in 1868 when it was incorporated
against the states. Id. at 2137–38; see also McDonald v. City of Chicago,
561 U.S. 742, 750 (2010) (incorporating the Second Amendment against the
states via the Fourteenth Amendment). But the instant case involves a fed-
eral statute and therefore implicates the Second Amendment, not the Four-
teenth. Even if the public understanding of the right to bear arms did evolve,
it could not change the meaning of the Second Amendment, which was fixed
when it first applied to the federal government in 1791.
21
And even if late-century practice sheds some dim light on Founding-
era understandings,
22
the most the Reconstruction-era regulations support is
a ban on gun possession while an individual is presently under the influence.
By regulating citizens like Daniels based on a pattern of drug use, § 922(g)(3)
_____________________
21
See Bruen, 142 S. Ct. at 2137 (“[W]e have 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.”); see also Lawrence
B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre
Dame L. Rev. 1, 15 (2015).
22
See Bruen, 142 S. Ct. at 2137 (calling 19th-century commentary “secondary,”
and “mere confirmation” of what Founding-era sources reveal) (quotation omitted).
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goes further. Our history and tradition do not support the leap.
2.
As an alternative, the government posits that the tradition of dis-
arming the mentally ill supports § 922(g)(3). To quote Heller’s now-famous
caveat, “longstanding prohibitions on the possession of firearms by . . . the
mentally ill” are still “presumptively lawful.”
23
Obviously, mental illness
and drug use are not the same thing. But there is an intuitive similarity:
Those who are “briefly mentally infirm as a result of intoxication” are similar
to those “permanently mentally infirm” because of illness or disability.
24
We note at the outset that there is not a clear set of positive-law stat-
utes concerning mental illness and firearms. In fact, the federal ban on gun
possession by those judged mentally ill was enacted in 1968, the same year as
§ 922(g)(3). See 18 U.S.C. § 922(g)(4); United States v. Skoien, 614 F.3d 638,
641 (7th Cir. 2010). But scholars have suggested that the tradition was impli-
cit at the Founding because, “in eighteenth-century America, justices of the
peace were authorized to ‘lock up’ ‘lunatics’ who were ‘dangerous to be per-
mitted to go abroad.’”
25
In other words, the greater restriction included the
lesser. If the insane could be wholly deprived of their liberty and property,
the government could necessarily take away their firearms.
Of course, the practice of institutionalizing so-called “lunatics” does
not give clear guidance about which lesser impairments are serious enough to
_____________________
23
554 U.S. at 626, 627 n.26; see also Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., con-
curring) (quoting that portion of Heller); McDonald, 561 U.S. at 786 (quoting the same).
24
Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda, 56 U.C.L.A. L. Rev. 1443, 1535 (2009).
25
United States v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (per curiam) (quoting
Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller
and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009)).
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warrant the loss of constitutional freedoms. But we can assume that intoxi-
cation with marihuana is analogous to short-term mental illness. Dr. Benja-
min Rush—who signed the Declaration of Independence—said a “tempor-
ary fit of madness” was a symptom of drunkenness.
26
And in an influential
treatise on constitutional law, Thomas Cooley described drunkenness as a
form of “temporary insanity.”
27
The same could be said of intoxication via
marihuana.
Still, that comparison could justify disarming a citizen only while he is
in a state comparable to lunacy. Just as there was no historical justification
for disarming a citizen of sound mind, there is no tradition that supports
disarming a sober citizen who is not currently under an impairing influence.
Indeed, it is helpful to compare the tradition surrounding the insane
and the tradition surrounding the intoxicated side-by-side. The Founders
purportedly institutionalized the insane and stripped them of their guns; but
they allowed alcoholics to possess firearms while sober. We must ask, in
Bruen-style analogical reasoning, which is Daniels more like: a categorically
“insane” person? Or a repeat alcohol user? Given his periodic marihuana
usage, Daniels is firmly in the latter camp. If and when Daniels uses mari-
huana, he may be comparable to a mentally ill individual whom the Founders
would have disarmed. But while sober, he is like the repeat alcohol user in
between periods of drunkenness.
_____________________
26
Benjamin Rush, An Inquiry into the Effects of Ardent
Spirits upon the Human Body and Mind 6 (8th ed., Boston, James Loring
1823).
27
Thomas M. Cooley, A Treatise on the Constitutional Limi-
tations Which Rest upon the Legislative Power of the States of
the American Union 660 n.1 (2d ed., Boston, Little Brown & Co. 1871). He suggests
that some states prohibited intoxicated people from voting on that basis. Id.
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In short, neither the restrictions on the mentally ill nor the regulatory
tradition surrounding intoxication can justify Daniels’s conviction. Perhaps
the government could show that the drugs Daniels used were so powerful
that anyone who uses them is permanently impaired in a way that is compar-
able to ongoing mental illness. Or the government could demonstrate that
Daniels’s drug use was so regular and so heavy that he was continually
impaired. Here, it has shown evidence of neither.
3.
Finally, the government asserts that Congress can limit gun posses-
sion by those “dangerous” to public peace or safety. It contends that prin-
ciple was well understood when the Second Amendment was ratified. And
it posits that Daniels—a repeat marihuana user—was presumptively danger-
ous enough to be disarmed. Although there is some historical evidence for
the government’s underlying principle, the historical examples of danger-
based disarmament do not justify § 922(g)(3)’s application here.
a.
As Justice Barrett detailed when she was a judge on the Seventh Cir-
cuit, history supports the intuitive proposition that the government can keep
deadly firearms away from dangerous people. Kanter, 919 F.3d at 451 (Bar-
rett, J., dissenting).
28
Even the amici who believe that Daniels should prevail
on his Second Amendment challenge suggest that the government can disarm
the dangerous, even under Bruen’s history-and-tradition test.
29
_____________________
28
See also Folajtar v. Att’y Gen. of U.S., 980 F.3d 897, 913–15 (3d Cir. 2020) (Bibas,
J., dissenting) (urging the same); see generally Joseph G.S. Greenlee, Disarming the Dan-
gerous: The American Tradition of Firearm Prohibitions, 16 Drexel L. Rev. (forthcoming
2023), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4317000
(collecting historical regulations).
29
Brief of Amicus Curiae Scholars of Second Amendment Law and the Inde-
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21
That said, no one piece of historical evidence suggests that when the
Founders ratified the Second Amendment, they authorized Congress to dis-
arm anyone it deemed dangerous. Instead, the government collects different
statutes disarming discrete classes of persons at various points in history.
Those laws suggest an abstract belief that an individual’s right to bear arms
could be curtailed if he was legitimately dangerous to the public.
The government’s examples fall into two general buckets. First, states
barred political dissidents from owning guns during periods of conflict. Many
American states, for instance, disarmed those who failed to take an oath of
allegiance during the Revolutionary War.
30
Second, both British and Ameri-
can governments disarmed religious minorities—especially Catholics.
31
_____________________
pendence Institute at 9 (“Dangerousness should be the key feature for firearms prohibitors,
and a person whose conduct is never dangerous may not be disarmed.”); Brief of Amici
Curiae Firearms Policy Coalition and FPC Action Foundation at 30 (“The only historical
justification for disarmament is dangerousness.”).
30
See, e.g., Act of June 13, 1777, ch. 756, § 3, reprinted in 9 The Statutes at
Large of Pennsylvania from 1682 to 1801, at 110, 112–13 (Wm. Stanley Ray ed.,
1903) (allowing local law enforcement to freeze the assets and “disarm[]” those who did
not take a loyalty oath); Act of May 1, 1776, ch. 21, reprinted in 5 The Acts and
Resolves, Public and Private, of the Province of the Massachu-
setts Bay 479, 479 (Boston, Wright & Potter Printing Co. 1886) (ordering those “notor-
iously disaffected to the cause of America” to be “disarmed” and their weapons given to
the Continental Army); Act of June 1776, reprinted in 7 Records of the Colony of
Rhode Island and Providence Plantations in New England 566, 567
(John Russell Bartlett ed., Providence, A. Crawford Greene 1862) (permitting county sher-
iffs to take the “arms, ammunition[,] and warlike stores” of those refusing to take loyalty
oaths and transfer the weapons to the local militia).
31
During the English Interregnum, Oliver Cromwell’s government disarmed “all
known Popish and dangerous or seditious persons.” Council: Day’s Proceedings (Feb. 15,
1654–55), reprinted in 8 Calendar of State Papers, Domestic Series, 1655,
at 42, 43–44 (Mary Anne Everett Green ed., London, Longmans & Co. et al. 1881). Several
American states disarmed Catholics as well. See, e.g., Act of March 25, 1756, ch. 4, reprinted
in 7 Statutes at Large; Being a Collection of All the Laws of
Virginia from the First Session of the Legislature in the Year 1619,
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Each of those laws was generally based on concerns for the safety of
the polity, but each disarmament also had its own unique political or social
motivations. Almost all the laws disarming dissidents were passed during
wartime or periods of unprecedented political turmoil. Indeed, Founding-
era governments did not disarm Loyalists because they were thought to lack
self-control; it was because both were viewed as potential threats to the
integrity of the state.
32
The same was true of religious minorities—the
perceived threat was as much political as it was religious.
33
Independent of those class-based restrictions, the government relies
_____________________
at 9, 35–36 (William Waller Hening ed., Richmond, Franklin Press 1820) (disarming
“Papists” because it was “dangerous at this time to permit [them] to be armed”).
But disarmament was not limited to Catholics. The civil government disarmed
fifty-eight supporters of John Wheelwright, a clergyman who was expelled from Massa-
chusetts for his religious views around the same time as Anne Hutchinson. See James F.
Cooper, Jr., Anne Hutchinson and the “Lay Rebellion” Against the Clergy, 61 N. Eng. Q.
381, 391 (1988). Quakers and other pacifist sects were also perceived to be Tory sympa-
thizers or traitors because they refused to support the American Revolution. Jim Wede-
king, Quaker State: Pennsylvania’s Guide to Reducing the Friction for Religious Outsiders
Under the Establishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51–52 (2006).
32
Greenlee, supra note 288, at 42–43.
33
Id. at 38–40. Although the government does not mention it, perhaps the most
categorical firearm restrictions at the Founding were the discriminatory gun bans applic-
able to blacks and Indians. See Stephen P. Halbrook, To Bear Arms for Self-Defense: A
“Right of the People” or a Privilege of the Few?, 21 Federalist Soc’y Rev. 46, 53 (2020);
Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and
Outsiders, in New Histories of Gun Rights and Regulation: Essays on
the Place of Guns in American Law and Society (Joseph Blocher et al. eds.,
forthcoming) (manuscript at 4–5), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3702696. Americans feared that
slaves, free blacks, and Indians would stage violent attacks or revolts. Greenlee, supra
note 28, at 28, 31. Although those laws are also examples of danger-based disarmament,
we need not build our history and tradition on repugnant laws that today would be struck
down as unconstitutional. There are plenty of examples at the Founding of states’ disarm-
ing citizens who were considered a violent threat to society.
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heavily on the Militia Act of 1662, which allowed the Crown to disarm those
whom he judged “dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3,
§ 13 (1662). That is the most direct support for the government’s principle
that the legislature could prophylactically disarm any citizen who could
potentially be dangerous.
But Rahimi held that the Militia Act was not incorporated into Amer-
ican law. After all, the Act was the justification for the widespread disarming
of political opponents by Charles II and James II. Rahimi, 61 F.4th at 456.
After the Glorious Revolution, the 1689 English Bill of Rights expanded the
right to bear arms in order to curtail the Militia Act’s reach and limit the
Crown’s “politically motivated disarmaments.” Id. Our Second Amend-
ment is a direct descendant of that latter guarantee. Id. (citing Heller,
554 U.S. at 593). If anything, our constitutional right to bear arms was pur-
posefully broader than its English ancestor. See William Rawle, A
View of the Constitution of the United States of Amer-
ica 122–23 (Philadelphia, H.C. Carey & I. Lea 1825). Although some his-
torians maintain that the Militia Act was still frequently used after the Glori-
ous Revolution,
34
its limitations likely did not survive the categorical com-
mand of the Second Amendment. See Rahimi, 61 F.4th at 456.
Finally, the government posits that Congress can disarm dangerous
citizens because the idea was discussed during the ratification of the Consti-
_____________________
34
See Patrick J. Charles, “Arms For Their Defense”?: An Historical, Legal, and
Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should
Be Incorporated in McDonald v. City of Chicago, 57 Cleve. State L. Rev. 351, 376
(2009) (noting that “the 1662 Militia Act’s seizure of arms provision was not only fre-
quently used” after the English Bill of Rights, “but it was also supported by both Houses
of Parliament”); see also Diarmuid F. O’Scannlain, Glorious Revolution to American Revolu-
tion: The English Origin of the Right to Keep and Bear Arms, 95 Notre Dame L. Rev. 397,
405–06 (2019).
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tution. Samuel Adams, for example, proposed an amendment at the Massa-
chusetts ratifying convention that would have limited the right to bear arms
to “peaceable citizens.”
35
At the Pennsylvania ratifying convention, the
dissenting minority suggested several constitutional amendments, including
one that would have protected the right to bear arms “unless for crimes com-
mitted, or real danger of public injury from individuals.”
36
Heller described
the Pennsylvania proposal as an “influential” precursor to our Second
Amendment, 554 U.S. at 604, as many of the Pennsylvania minority’s sug-
gestions ended up in our current Bill of Rights.
37
Again, however, we must pause. The predecessors of the Second
Amendment gave concrete language to possible limits on the right to bear
arms. Yet that language was not adopted. Instead, the People ratified the
unqualified directive: “shall not be infringed.” U.S. Const. amend. II.
Usually, when the relevant lawmaking body does not adopt language in a
draft, we presume that the stricken language was not intended. See Skoien,
614 F.3d at 648 (Sykes, J., dissenting). Indeed, Rahimi also considered those
Second Amendment precursors and concluded that the unadopted language
could not supplant the Amendment’s enacted text. Rahimi, 61 F.4th at 457.
That said, there is an undeniable throughline in all those historical
sources: Founding-era governments took guns away from persons perceived
to be dangerous. Even if the disarming of Loyalists and Catholics was limited
_____________________
35
Convention Journal (Feb. 6, 1788), reprinted in 6 The Documentary His-
tory of the Ratification of the Constitution 1452, 1453 (J. Kaminski
et al. eds. 2000).
36
The Address and Reasons of Dissent of the Minority of the Convention of the
State of Pennsylvania to their Constituents (1787), reprinted in 2 Documentary His-
tory of the Ratification, supra note 35, at 618, 624.
37
See Address and Reasons of Dissent, supra note 36, at 623–24.
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to exigent historical contexts, no party identifies “disputes regarding the
lawfulness of such prohibitions” at the time. Bruen, 142 S. Ct. at 2133.
Indeed, some states such as Pennsylvania disarmed dissident citizens while
their state constitutions guaranteed a right to bear arms.
38
And even if the
Founders repudiated the Militia Act and rejected the Second Amendment
precursors, the language of those documents says something about the outer
limit of the right to bear arms in the English tradition.
Perhaps the Second Amendment was meant to do away with all those
restrictions of liberty, and we can chalk such restrictions up to reactionary
excess during the birth of a nation. On the other hand, we cannot completely
discount the sheer number of disarming statutes at the time of the Founding.
Together, they suggest a public understanding that when a class of individ-
uals was thought to pose a grave danger to public peace, it could be disarmed.
b.
Assuming the Second Amendment encodes some government power
to disarm the dangerous, the question becomes: At what level of generality
may we implement that principle? Bruen requires us to interrogate the his-
torical record for “relevantly” similar regulations. It does not allow us to
enforce unenacted policy goals lurking behind the Second Amendment.
Indeed, any ability to implement a “dangerousness principle” is
fenced in by at least two strictures in the applicable caselaw. On the one
hand, the legislature cannot have unchecked power to designate a group of
persons as “dangerous” and thereby disarm them. Congress could claim that
immigrants, the indigent, or the politically unpopular were presumptively
“dangerous” and eliminate their Second Amendment rights without judicial
_____________________
38
Compare Pa. Const., Decl. of Rights, § XIII (1776), with Act of June 13, 1777,
supra note 30.
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review. That would have “no true limiting principle,” Rahimi, 61 F.4th
at 454, and would render the Second Amendment a dead letter.
On the other hand, we cannot inspect a legislature’s judgment of dan-
gerousness using traditional standards of scrutiny. Bruen forbids us from
balancing a law’s justifications against the burden it places on rightsholders.
142 S. Ct. at 2127, 2129. Imagine, for example, that a state legislature disarms
all men, citing statistics that men commit more violent crimes than do
women.
39
Before Bruen, we would have considered whether the evidence
supporting male dangerousness was substantial enough—and whether the
law was sufficiently tailored—to justify such a categorical restriction on gun
rights. But Bruen forswears that kind of review. Bruen, 142 S. Ct. at 2129.
Similarly, imagine that the government bars all convicted cybercriminals
from owning guns, referencing the “dangerousness” of cybercrime. Cyber-
crime is assuredly dangerous, but in a different way than is violent crime.
Applying a standard of scrutiny, we might have interrogated whether Con-
gress had adequately demonstrated that someone who spreads ransomware
or pirates television shows is likely to be dangerous with a firearm. Again,
Bruen heads that analysis off at the pass. Id.
40
How, then, do we square the post-Bruen circle? To remain faithful to
Bruen, the solution is to analogize to particular regulatory traditions instead
_____________________
39
In 2012, approximately 80% of offenders arrested for violent crimes were men.
Crime in the United States 2012, Fed. Bureau Invest. (2012),
https://ucr.fbi.gov/crime-in-the-u.s/2012/crime-in-the-u.s.-
2012/tables/42tabledatadecoverviewpdf/table_42_arrests_by_sex_2012.xls.
40
Indeed, when then-Judge Barrett wrote in Kanter that danger-based disarma-
ment was consistent with the original understanding of the Second Amendment, Bruen had
not yet been decided. 919 F.3d at 451 (Barrett, J., dissenting). So she explicitly relied on
means-end scrutiny to cabin the government’s modern-day determinations that a particular
group is too dangerous to possess guns. Id. at 465. But post-Bruen, that judicial check is
no longer available to us. Bruen, 142 S. Ct. at 2129–30.
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of a general notion of “dangerousness.” The government must show that a
historical danger-based disarmament is analogous to the challenged regula-
tion.
41
We must use Bruen’s “why” and “how” analysis to assess whether
the Founding-era restriction is relevantly similar to the modern one. We
must ask: Why was the group considered dangerous at the Founding and
therefore disarmed? And why does the modern law classify a person as pre-
sumptively dangerous? Is the comparison supported by the record? Fur-
thermore, how did the historical regulation limit the rights of the dangerous
class? And how does the modern regulation do so?
42
c.
Applying Bruen’s framework to the proffered analogues, it follows
that the government’s theory of danger-based disarmament falls apart. The
government identifies no class of persons at the Founding (or even at Recon-
struction) who were “dangerous” for reasons comparable to marihuana
users. Marihuana users are not a class of political traitors, as British Loyalists
were perceived to be. Nor are they like Catholics and other religious dissent-
ers who were seen as potential insurrectionists. And even if we consider the
racially discriminatory laws at the Founding, Daniels is not like the minorities
_____________________
41
Bruen, 142 S. Ct. at 2133 n.7 (“[C]ourts may [not] engage in independent means-
end scrutiny under the guise of an analogical inquiry. . . . Analogical reasoning requires
judges to apply faithfully the balance struck by the founding generation to modern circum-
stances, . . . not . . . revise that balance through means-end scrutiny.”).
42
The en banc Third Circuit recently followed that approach in Range, 69 F.4th at
104–05. Facing a challenge to § 922(g)(1), the felon-in-possession statute, the court
acknowledged Founding-era evidence for disarming the dangerous. But it required the
government to “analogize [historically disarmed] groups to [the defendant] and his indi-
vidual circumstances.” Id. “That Founding-era governments disarmed groups they dis-
trusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to
prove that [a defendant] is part of a similar group today.” Id. at 105. The Third Circuit
ultimately held that § 922(g)(1) was unconstitutional as applied to a non-violent felon. Id.
at 106.
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who the Founders thought threatened violent revolt.
The government suggests that, in the spirit of the drafts of the Second
Amendment and the Militia Act, marihuana users threaten the public
“peace.” But at the time of the Founding, that notion referred specifically
to violence or rebellion, not generalized public harm.
43
And § 922(g)(3) is
not limited to those with a history of violent behavior—not all members of
the set of “drug users” are violent. As applied in this case, the government
has not shown how Daniels’s marihuana use predisposes him to armed con-
flict or that he has a history of drug-related violence.
Furthermore, even as the Founders were disarming Catholics and
politically disaffected citizens, they left ordinary drunkards unregulated. The
government has no meaningful response to the fact that neither Congress nor
the states disarmed alcoholics, the group most closely analogous to mari-
huana users in the 18th and 19th centuries. As with the government’s analogy
to mental illness, we must ask: Which are marihuana users more like: British
Loyalists during the Revolution? Or repeat alcohol users? The answer is
surely the latter.
The government asks us to set aside the particulars of the historical
record and defer to Congress’s modern-day judgment that Daniels is pre-
sumptively dangerous because he smokes marihuana multiple times a month.
But that is the kind of toothless rational basis review that Bruen proscribes.
Absent a comparable regulatory tradition in either the 18th or 19th century,
_____________________
43
See Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous
Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 266 (2020); Folajtar, 980 F.3d at 915
(Bibas, J., dissenting). Indeed, to the extent the Militia Act is probative, it was primarily
used to disarm religious minorities and “disaffected persons,” neither of which is compara-
ble to Daniels. See O’Scannlain, supra note 34, at 405–06. The Militia Act of 1661 had also
permitted law enforcement to disarm and detain “Disturbers of the Peace,” but that statute
was similarly targeted at insurrectionists. See 13 Car. 2. c. 6, § 2.
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§ 922(g)(3) fails constitutional muster under the Second Amendment.
44
III.
Daniels’s § 922(g)(3) conviction is inconsistent with our “history and
tradition” of gun regulation. Bruen, 142 S. Ct. at 2128. We conclude only by
emphasizing the narrowness of that holding. We do not invalidate the statute
in all its applications, but, importantly, only as applied to Daniels. Nor do we
suggest that a robust Second Amendment is incompatible with other reason-
able gun regulations.
45
Such statutes just need to be consonant with the limits
the Founding generation understood to be permissible when they ratified the
Second Amendment. The government has failed to demonstrate that here.
The judgment of conviction is therefore REVERSED, and a judg-
ment dismissing the indictment is RENDERED.
_____________________
44
Irrespective of any historical analysis, the government also asks us to side with
the many district courts around the country that have upheld § 922(g)(3) in the face of
constitutional challenges. Of those, however, the vast majority relied reflexively on pre-
Bruen caselaw or the same loose analogies that the government advances in this case. We
decline to follow those decisions for the reasons detailed above. The district courts that
have engaged carefully with the historical sources and the strictures of Bruen have found
that § 922(g)(3) violates the Second Amendment. See, e.g., United States v. Harrison,
No. CR-22-00328, 2023 WL 1771138, at *24–25 (W.D. Okla. Feb. 3, 2023); United States
v. Connelly, No. EP-22-CR-229(2), 2023 WL 2806324, at *12 (W.D. Tex. Apr. 6, 2023).
45
Bruen, 142 S. Ct. at 2133; cf. Heller, 554 U.S. at 635 (leaving open the constitu-
tionality of further “regulations of the right”).
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Stephen A. Higginson, concurring:
In the fifteen years since the Supreme Court first found in the Second
Amendment an individual right to keep and bear arms to defend the home,
See District of Columbia v. Heller, 554 U.S. 570, 595, 636 (2008); McDonald v.
City of Chicago, 561 U.S. 742, 750 (2010) (incorporating this right against the
states), historians and legal scholars have continued to question this
interpretation,
1
while the nation has continued to look for constitutionally
permissible safeguards against gun violence and gun-related death rates that
outstrip those of almost every other country.
2
_____________________
1
See, e.g., Richard A. Epstein, A Structural Interpretation of the Second Amendment:
Why Heller is (Probably) Wrong on Originalist Grounds, 59 Syracuse L. Rev. 171 (2008);
Paul Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267
(2008); Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss,
Same as the Old Boss,” 56 UCLA L. Rev. 1095 (2009); Patrick J. Charles, The Second
Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the
Embarrassing “Standard Model” Moving Forward, 39 Fordham Urb. L.J. 1727 (2012);
Lee Epstein & David T. Konig, The Strange Story of the Second Amendment in the Federal
Courts, and Why It Matters, 60 Wash. U. J.L. & Pol’y 147 (2019); Darrell A. H. Miller,
Owning Heller, 30 U. Fla. J.L. & Pub. Pol’y 153 (2020).
2
See, e.g., Evan D. Gumas, Munira Z. Gunja & Reginald D. Williams II, The Health
Costs of Gun Violence: How the U.S. Compares to Other Countries, The Commonwealth
Fund (Apr. 20, 2023),
https://www.commonwealthfund.org/publications/2023/apr/health-costs-gun-violence-
how-us-compares-other-countries (noting that the death rate from firearms-related causes
in 2019 was around five times greater in the U.S. (10.4 deaths per 100,000 people) than in
the high-income countries with the second- (France, 2.2) and third-highest rates
(Switzerland, 2.1)); Chris Gilligan, U.S. Remains an Outlier in Firearm Possession, Gun-
Related Deaths, U.S. News & World Rep. (Jan. 30, 2023, 3:42
p.m.),https://www.usnews.com/news/best-countries/articles/2023-01-30/how-the-u-s-
compares-to-the-world-on-guns; see also John Gramlich, What the Data Says About Gun
Deaths in the U.S., Pew Rsch. Ctr. (Apr. 26, 2023),
https://www.pewresearch.org/short-reads/2023/04/26/what-the-data-says-about-gun-
deaths-in-the-u-s (reporting that 48,830 people died from gun-related injuries in 2021, just
over half of which were suicides); Stefanie Dazio & Larry Fenn, Six Months. 28 Mass
Killings in the US. That’s the Worst Yet, and All But One Case Involved Guns, AP News
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Faced with this expanded Second Amendment reach and the
corresponding wave of legal challenges to gun safety regulations, lower courts
eventually “coalesced around a ‘two-step’ framework for analyzing Second
Amendment challenges that combine[d] history with means-end scrutiny.”
3
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2125 (2022). In
applying this framework, courts were attempting to balance Heller’s
rejection, on originalist grounds, of the previously narrow focus on a militia
interest in favor of an interest in self-defense, with Heller’s recognition that
the Second Amendment contains limiting principles and exceptions.
Specifically, Heller acknowledged that the Second Amendment does not
curtail the legislative power to regulate and restrict the carrying of
“dangerous and unusual weapons,” 554 U.S. at 627, nor does it undermine
“longstanding prohibitions” on the carrying of firearms in sensitive places or
by certain persons, or “laws imposing conditions and qualifications on the
commercial sale of arms,” id. at 626-27.
Thus, even as the politics of gun safety remained hotly contested, the
law had somewhat settled. And under this framework, courts generally
_____________________
(July 13, 2023, 11:43 p.m.), https://apnews.com/article/mass-killings-record-gun-
violence-0174103c37756fe4d247fd15cd3bc009; Kiara Alfonseca, There Have Been More
Mass Shootings Than Days in 2023, Database Shows, ABC News (May 8, 2023, 9:24 a.m.),
https://abcnews.go.com/US/mass-shootings-days-2023-database-
shows/story?id=96609874; John Gramlich, Gun Deaths Among U.S. Children and Teens
Rose 50% in Two Years, Pew Rsch. Ctr. (Apr. 6, 2023),
https://www.pewresearch.org/short-reads/2023/04/06/gun-deaths-among-us-kids-rose-
50-percent-in-two-years.
3
Courts would first turn to text, history, and tradition to determine whether the
challenged law or regulation burdens conduct protected by the Second Amendment, and
then, if so, evaluate the law under a version of means-end scrutiny. See Mark Anthony
Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology
Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts.
J. 413, 418-19 (2020).
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permitted Americans, through both state and federal elected officials, to
enact, or opt not to enact, gun safety regulations to address the ongoing crisis
of gun violence.
4
Last year, however, the Supreme Court again revised Second
Amendment doctrine in Bruen, declaring that this “two-step” approach,
which combined attentiveness to history with a traditional judicial balancing
test, was “one step too many.” Id. at 2127. Now, the Court has written, if
“the Second Amendment’s plain text covers an individual’s conduct,” then
a gun regulation is presumptively unlawful unless the government can
“justify its regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.”
5
Id. at 2126, 2129-30.
_____________________
4
This is not to say that courts disregarded Heller and McDonald, or otherwise
relegated the Second Amendment to the status of a “second class” right. Indeed, some
firearms restrictions were struck down, see, e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th
Cir. 2012) (finding Illinois’s ban on the carrying of ready-to-use weapons unconstitutional),
and, although it is difficult to precisely calculate rates of gun ownership, see Jennifer Mascia,
How Many Guns Are Circulating in the U.S.?, The Trace (Mar. 6, 2023),
https://www.thetrace.org/2023/03/guns-america-data-atf-total, there are significantly
more firearms in circulation today than ever before, and this expansion has primarily
occurred post-Heller, see Daniel De Visé, Americans Bought Almost 60 Million Guns During
the Pandemic, The Hill (Apr. 21, 2023, 6:00 a.m.), https://thehill.com/policy/national-
security/3960527-americans-bought-almost-60-million-guns-during-the-pandemic,
(noting that FBI firearm background checks more than doubled from 2005 to 2015, and
then skyrocketed further between 2015 and 2020).
5
Although Bruen appears to contemplate a “one-step” test, courts have correctly
perceived it to require a new two-step analysis wherein courts first determine whether the
challenged regulation or statute implicates the Second Amendment and then, if so, analyze
the relevant history and tradition to decide if such a restriction is justified. See Range v.
Att’y Gen. U.S., 69 F.4th 96, 101 (3d Cir. 2023) (en banc) (“After Bruen, we must first
decide whether the text of the Second Amendment applies to a person and his proposed
conduct. If it does, the government now bears the burden of proof: it ‘must affirmatively
prove that its firearms regulation is part of the historical tradition that delimits the outer
bounds of the right to keep and bear arms.’.” (internal citations omitted)); United States v.
Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023) (describing Bruen as having adopted a “two-
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Bound by this interpretative sequence, we hold today that 18 U.S.C.
§ 922(g)(3), a decades-old felony provision of our federal firearms law, is
unconstitutional as applied to Mr. Daniels. Although our decision is limited
in scope, it is hard for me to avoid the conclusion that most, if not all,
applications of § 922(g)(3) will likewise be deficient.
6
It is also important to
acknowledge that other gun safety laws, especially longstanding status-based
prohibitions previously understood to be constitutionally unassailable, have
been recently struck down by courts across the country as they attempt to
faithfully implement Bruen.
7
_____________________
part test”); Atkinson v. Garland, 70 F.4th 1018, 1020 (7th Cir. 2023) (“[W]hen the Second
Amendment’s ‘plain text’ covers the regulated conduct, the government has only one way
to defend the regulation—by proving that it is ‘consistent with this Nation’s historical
tradition of firearm regulation.’” (quoting Bruen, 142 S. Ct. at 2126)).
6
Reviewing our precedent, many offenders convicted under § 922(g)(3) were not
intoxicated when they were found to possess or receive a firearm, but rather were generally
users of a controlled substance. See, e.g., United States v. Patterson, 431 F.3d 832, 837 (5th
Cir. 2005) (upholding the defendant’s conviction where he admitted that he regularly used
marijuana and where his urine sample tested positive for marijuana, which stays in the
system of an occasional user for up to two weeks); United States v. Edwards, 182 F.3d 333,
335-36 (5th Cir. 1999) (rejecting the argument that the defendant’s conduct did not
constitute a violation of § 922(g)(3) because “he was not using drugs at the exact moment
the police found him in possession of a firearm”); cf. United States v. McCowan, 469 F.3d
386, 392 (5th Cir. 2006) (finding that the defendant qualified as an “unlawful user” for the
purposes of the Sentencing Guidelines because the evidence showed that he “followed a
pattern of use over an extended period of time”).
7
In fact, there is already a circuit split on the constitutionality of § 922(g)(1), the
federal felon-in-possession statute. Compare Range, 69 F.4th at 98 (holding § 922(g)(1)
unconstitutional as applied), with United States v. Jackson, 69 F.4th 495, 501-02 (8th Cir.
2023) (upholding the constitutionality of § 922(g)(1) as applied and concluding that “there
is no need for felony-by-felony litigation regarding the constitutionality” of that provision).
Some courts, faced with Bruen challenges to multiple provisions of the federal criminal
code, have upheld one provision while striking down another. E.g., United States v. Price,
No. 22-cr-97, 635 F. Supp. 3d 455, 464, 467 (S.D.W. Va. Oct. 12, 2022) (finding 18 U.S.C.
§ 922(k), which makes it unlawful to possess a firearm with an obliterated serial number,
unconstitutional while holding that § 922(g)(1) “accords with the Second Amendment”).
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To be clear, I fully concur in the majority’s reasoning—albeit with the
caveat that the Supreme Court has granted certiorari in United States v.
Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, No. 22-915, __ S. Ct. __,
2023 WL 4278450, at *1 (June 30, 2023)—as I believe that we have applied
Bruen as well as possible in evaluating the constitutionality of § 922(g)(3). I
write separately to highlight what has become increasingly apparent—that
courts, operating in good faith, are struggling at every stage of the Bruen
inquiry. Those struggles encompass numerous, often dispositive, difficult
questions, including, but not limited to the following. First, who, and what
conduct, is covered by the Second Amendment?
8
Second, how does the
_____________________
Moreover, the effect of Bruen has been especially dramatic as to civil claims. See Jake
Charles, One Year of Bruen’s Reign: An Updated Empirical Analysis, Duke Ctr. for
Firearms Law (July 7, 2023), https://firearmslaw.duke.edu/2023/07/one-year-of-
bruens-reign-an-updated-empirical-analysis.
8
For instance, courts are divided as to whether the Supreme Court’s description
of the right as one belonging to “law-abiding, responsible citizens,” Bruen, 142 S. Ct. at
2131 (quoting Heller, 554 U.S. at 635), is meant to exclude certain categories of citizens,
such as those convicted of a crime, from the protection of the Second Amendment. See
United States v. Jackson, No. 22-cr-141, 2023 WL 2499856, at *7 (D. Md. Mar. 13, 2023)
(collecting cases in which courts “rejected post-Bruen challenges to status-based gun laws
on the ground that the restricted people are not law-abiding, responsible citizens to whom
the Second Amendment applies”). Compare also United States v. Charles, 633 F. Supp. 3d
874, 887-88 (W.D. Tex. 2022) (concluding that there is a historical basis for excluding
felons under the Second Amendment), and United States v. Hughes, No. 22-cr-640, 2023
WL 4205226, at *5-8 (D.S.C. June 27, 2023) (discussing how several courts have concluded
that “convicted felons have traditionally been excluded from the political community” and
are therefore not part of “the people” protected by the Second Amendment), with Range,
69 F.4th at 103 (“ [W]e reject the Government’s contention that only ‘law-abiding,
responsible citizens’ are counted among ‘the people’ protected by the Second
Amendment.”). In other cases, the debate as to what constitutes a “bearable arm” covered
by the Second Amendment has revitalized relevance. See , e.g., Oral Argument at 1:10-2:10,
Bevis v. City of Naperville, No. 23-1353, (7th Cir. June 29, 2023) (state and local defendants
arguing that large-capacity magazines are not “arms” but “accessories that are not
necessary to the operation of any firearm”); see also Ocean State Tactical, LLC v. Rhode
Island, No. 22-cv-246, 2022 WL 17721175, at *11-13 (D.R.I. Dec. 14, 2022) (finding at the
preliminary-injunction stage that plaintiffs had not shown that large-capacity magazines are
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Government demonstrate a regulatory “tradition”? This inquiry implicates
questions about how many states must have historically addressed an issue,
or how many laws must have been passed—or some combination of the
two
9
—for a historical practice to constitute a “tradition,”
10
see Bruen, 142 S.
Ct. at 2142 (“[W]e doubt that three colonial regulations could suffice to show
a tradition of public-carry regulation.”), as well as the related issue of
enforcement.
11
Third, what is the operative time period for such
regulations—1791 or 1868?—and to what extent does post-ratification
_____________________
“arms” within the “textual meaning of the Second Amendment”); Nat’l Assoc. for Gun
Rights v. Lamont, No. 22-cv-1118, 2023 WL 4975979, at *26 (D. Conn. Aug. 3, 2023)
(concluding that plaintiffs had failed to carry their burden of showing that statutorily
defined assault weapons and large-capacity magazines are covered by the Second
Amendment).
9
For example, is it enough if the historical record shows that one state had passed
and enforced numerous laws addressing a particular firearms issue, or must multiple states
have taken action on an issue? See Bruen, 142 S. Ct. at 2154 (“[W]e will not stake our
interpretation of the Second Amendment upon a law, in effect in a single State, or a single
city, ‘that contradicts the overwhelming weight of other evidence regarding the right to
keep and bear arms’ in public for self-defense.” (quoting Heller, 554 U.S. at 632)).
10
See, e.g., Hardaway v. Nigrelli, No. 22-cv-771, 2022 WL 16646220, at *14-17
(W.D.N.Y. Nov. 3, 2022) (discussing the necessary showing to establish a historical
tradition before finding plaintiffs were likely to prevail on their claim that New York’s
“place of worship” ban on firearms possession violates the Second Amendment). Compare
also United States v. Rowson, No. 22-cr-310, 2023 WL 431037, at *19-24 (S.D.N.Y. Jan. 26,
2023) (finding § 922(n) consistent with this nation’s historical tradition of firearms
regulations on the basis of colonial laws disarming groups of persons perceived as
dangerous and historical surety laws), with United States v. Hicks, 21-cr-60, 2023 WL
164170, at *3-7 (W.D. Tex. Jan. 9, 2023) (finding these same historical analogies to be
insufficient and holding § 922(n) to be unconstitutional).
11
See Bruen, 142 S. Ct. at 2149 (“[R]espondents offer little evidence that
authorities ever enforced surety laws.”); see also United States v. Combs, No. 22-cr-136,
2023 WL 1466614, at *12 (E.D. Ky. Feb. 2, 2023) (explaining that the Bruen plurality
rejected surety laws as a suitable historical analogue not because of a lack of evidence that
these laws were enforced, but because they did not impose a comparable burden on the
right).
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practice count? See id. at 2162-63 (Barrett, J., concurring).
12
Fourth—but
again, this list is not exhaustive—how are courts to differentiate between
“general societal problem[s]” that have “persisted since the 18th century,”
and those that “implicat[e] unprecedented societal concerns or dramatic
technological changes,” id. at 2131-32, and, moreover, between “historical
analogue[s]” as distinct from “historical twin[s]”? Id. at 2133.
13
More foundationally, courts are laboring to give meaning to the Bruen
requirement of “historical inquiry.” Must the Government provide expert
testimony to prevail, or could a district court independently seek such
evidence?
14
And in the event such evidence is lacking in the record below,
_____________________
12
See, e.g., Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322-23 (11th Cir. 2023)
(holding that because “[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them,” for purposes of a challenge to a state law,
“the right’s contours” turn on the understanding of the right “when the Fourteenth
Amendment was ratified” (internal quotation marks and citations omitted)), re’hg granted,
vacated, 72 F.4th 1346 (July 14, 2023); Worth v. Harrington, No. 21-cv-1348, 2023 WL
2745673, at *10-12 (D. Minn. Mar. 31, 2023) (noting that Bondi is “difficult to square with
the Supreme Court’s emphasis on applying the Bill of Rights against the states and federal
government according to the same standards” and suggesting that 1791 would be the
operative time period for defining the scope of the right).
13
See, e.g., Alaniz, 69 F.4th at 1129-30 (9th Cir. 2023) (describing “illegal drug
trafficking” as “a largely modern crime” that is “not closely analogous to founding-era
smuggling crimes” such that the Government’s proposed analogues needed to be only
“relevantly similar,” in upholding the application of a sentencing enhancement pursuant
to U.S.S.G. § 2D1.1(b)(1)”); Range, 69 F.4th at 120 (Krause, J., dissenting) (asserting that
§ 922(g)(1) implicates “unprecedented societal concerns” or dramatic technological
changes” due to “the lethality of today’s weaponry, the ubiquity of gun violence, the size
and anonymity of the population, and the extent of interstate travel [which] were unknown
at the Founding”); see also Protecting Public Safety After New York State Rifle & Pistol
Association v. Bruen, Hearing Before the Senate Comm. On the Judiciary, 118th Cong. (Mar.
15, 2023) (written testimony of Eric Ruben, Assistant Professor of Law, SMU Dedman
School of Law, at 9-12).
14
See Miller v. Bonta, No. 19-cv-1537, Tr. of Proceedings at 9-10, ECF 162 (S.D.
Cal., Dec. 12, 2022) (statement by the district court, at a hearing, that it does not have the
staff nor the resources to create a historical survey of relevant laws and statutes in a timely
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may courts of appeal collect their own history and make up for a party’s
earlier failing?
15
Going even further, should courts undertake discovery and
evidentiary testing of historical evidence to perceive the existence of a
sufficient regulatory tradition?
16
And, in making that conclusion, does the
_____________________
fashion); id. Min. Entry, ECF 161 (Dec. 15, 2022) (ordering the state defendants to confer
with the plaintiffs and to create a “survey or spreadsheet of relevant statutes, laws, or
regulations in chronological order” that began at the time of the adoption of the Second
Amendment and continued until twenty years past the adoption of the Fourteenth
Amendment, and which contained specific directions as to the information that should be
included); see also United States v. Bullock, No. 18-cr-165, 2022 WL 16649175 (S.D. Miss.
Oct. 27, 2022) (ordering briefing as to whether the court should appoint a consulting
historian to aid in evaluating the defendant’s motion to dismiss his indictment under
§ 922(g)(1)); United States v. Sims, No. 22-cr-30081, 2023 WL 4461997, at *2 (C.D. Ill. July
11, 2023) (suggesting that both the government and the defendant “should freely cast a
wider net and provide more detail about whatever history they rely on” and “freely employ
the expert services of historians and historiographers” in briefing a motion to dismiss an
indictment brought under § 922(g)(1) and § 922(d)) (internal quotation and citation
omitted).
15
Although the Supreme Court in Heller, McDonald, and Bruen received numerous
unsolicited amici briefs from historians and other interested parties, as an inferior court,
we rarely receive that amount of independent interest in our cases. Accordingly, in this
case, we found it helpful to publish a court directive “invit[ing] briefs from amici curiae
who wish to supply relevant information regarding the history and tradition of the issues
presented in this case.” See also Alaniz, 69 F.4th at 1129, n.2 (citing to a 113-page
compilation of historical state firearms and weapons regulations which neither party had
cited to in their briefing).
16
See, e.g., Atkinson v. Garland, 70 F.4th 1018, 1022-24 (7th Cir. 2023) (remanding
to the district court for a “proper, fulsome analysis of the historical tradition” and
identifying specific questions to help focus that analysis as the district court’s ruling
occurred pre-Bruen and thus the parties had not yet developed that record); Oregon
Firearms Fed.’n v. Kotek, Nos. 2:22-cv-01815, 22-cv-01859, 22-cv-01862, 22-cv-01869,
2023 WL 3687404, *5 (D. Or. May 26, 2023) (denying cross-motions for summary
judgment, noting that “the threshold question of whether [the challenged restrictions]
involve conduct covered by the plain text of the Second Amendment” is a disputed fact);
id., 2023 WL 4541027, at *3 (D. Or. July 14, 2023) (findings of fact and conclusions of law
followed from a weeklong bench trial involving “testimony from twenty witnesses” and
“more than 100 exhibits”). Compare Teter v. Lopez, No. 20-15948, 2023 WL 5008203, at
*6 (9th Cir. Aug. 7, 2023) (denying a request for a remand so that the district court, which
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constitutionality of any given provision rise or fall with the strength of the
historical record as to a specific case, or will rulings be treated as establishing
a single historical truth?
The majority in Bruen, responding to unworkability concerns
identified by the dissent and echoed by courts over the past year, may have
intimated answers. Specifically, the majority insisted that, as in other legal
disputes, “historical evidence” is predicated on our “adversarial system of
adjudication,” in which courts must “decide [the] case based on the
historical record compiled by the parties.” Id. at 2130, n.6. In my view, this
suggests that Bruen requires that an evidentiary inquiry first be conducted in
courts of original jurisdiction, subject to party presentation principles, aided
by discovery and cross-examination and with authority to solicit expert
opinion.
17
In granting certiorari in Rahimi, the Supreme Court likely will resolve
some of these questions. Of course, in the meantime, it is our job as an inferior
court to apply the Supreme Court’s mandates and aid the development of
this field of law. But the uncertainty and upheaval resulting from best efforts
to apply Bruen now extend far beyond our dockets. Myriad and obvious
public safety laws, some over a century old, face inconsistent invalidation.
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had issued its ruling pre-Bruen, could conduct further factual development on the basis that
“the historical research required under Bruen involves issues of so-called ‘legislative
facts’ . . .rather than ‘adjudicative facts’” such that no additional inquiry from the district
court was required).
17
This reading of Bruen seems to me to be supported by the single authority cited
in the majority’s answer to the dissent, which frames its discussion of originalist
methodology with reference to a title dispute in which the court was required to trace a
chain of title, that is, develop and decide adjudicative facts, and where the court simply had
to determine whether prior precedent had been overruled. William Baude & Stephen E.
Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 809-10 (2019).
Notably, in Bruen, the Supreme Court speaks of historical “evidence” over fifty times.
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The impact of these challenges, outside of the evident yet indescribable
tragedies of victims of gun violence, will fall heavily on states, which exercise
most police power and must assure public safety. See Teter v. Lopez, No. 20-
15948, 2023 WL 5008203 (9th Cir. Aug. 7, 2023) (striking down Hawaii’s
ban on butterfly knives as unconstitutional under Bruen). Already, as courts
work through the impact of Bruen, defendants guilty of a gun crime in one
jurisdiction are presently innocent of it in another.
18
In attempting to navigate this new landscape, it is prudent to first
return to the text of the Second Amendment, which states, in full: “A well
regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Just as the doctrine corrected in Heller was held to have over-
emphasized the first third of the text (“[a] well regulated Militia”), it is
possible that inferior judicial officers such as myself are misinterpreting
Bruen by pressing too much on the last (“the right . . . to keep and bear
Arms”). It may be that the Supreme Court will remind us of the Second
Amendment’s middle, where the Framers stated explicitly that they were
fashioning a right “necessary to the security of a free State.” In this sense,
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18
Our holding today conflicts with decisions from district courts across the country
upholding the constitutionality of § 922(g)(3). See United States v. Seiwert, No. 20-cr-443,
2022 WL 4534605 (N.D. Ill. Sept. 28, 2022); United States v. Posey, No. 22-cr-83, 2023 WL
1869095 (N.D. Ind. Feb. 9, 2023); United States v. Randall, No. 22-cr-99, 2023 WL 3171609
(S.D. Iowa Feb. 14, 2023); United States v. Stennerson, No. 22-cr-139, 2023 WL 2214351
(D. Mont. Feb. 24, 2023); United States v. Cleveland-McMichael, No. 21-cr-119, 2023 WL
2613548 (D. Alaska Mar. 23, 2023); United States v. Le, No. 23-cr-14, 2023 WL 3016297
(S.D. Iowa Apr. 11, 2023); United States v. Costianes, No. 21-cr-0458, 2023 WL 3550972
(D. Md. May 18, 2023); United States v. Hart, No. 22-cr-114, 2023 WL 4144834 (W.D. Mo.
June 6, 2023) (report and recommendation), adopted by 2023 WL 4141044 (W.D. Mo. June
22, 2023); United States v. Ray, No. 21-cr-57, 2023 WL 4378152 (W.D. Va. July 6, 2023);
United States v. Lewis, No. 22-cr-222, 2023 WL 4604563 (S.D. Ala. July 18, 2023); United
States v. Beaty, No. 22-cr-95, 2023 WL 4662247 (M.D. Fla. July 20, 2023).
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unlike the textually unbounded pledges assuring freedom of speech and
conscience, “the right of the people to keep and bear Arms” is less about the
antithesis of liberty and control, and is more designed to assure “domestic
Tranquility [and] . . . the general Welfare.” U.S. Const. pmbl. Put
another way, the Second Amendment is not only a right to have, but is
especially a right to have to protect the state. That right to protect, as both
Heller, McDonald, and Bruen affirmatively acknowledged, incorporates
significant public safety exceptions.
19
Importantly, the Supreme Court in Bruen saw itself as continuing
with, rather than breaking from, Heller, which recognized that “[l]ike most
rights, the right secured by the Second Amendment is not unlimited.” Heller,
554 U.S. at 626. Thus, although in dicta, the Heller majority was confident
that, though never conceived of by the Framers and hence never subject to
public safety regulation, certain “dangerous and unusual weapons” could
properly be banned. Id. at 624, 627. Similarly, the majority assured that
“nothing in our opinion should be taken to cast doubt on” some of the most
critical tools for combatting gun violence, including both people- and place-
based restrictions. Id. at 626-27; see also McDonald, 561 U.S. at 786 (plurality)
(“We repeat [Heller’s] reassurances here.”); Bruen, 142 S. Ct. at 2162
(Kavanaugh, J., joined by Roberts, CJ., concurring). These assurances are a
recognition that the Second Amendment, explicitly and unlike the other
original ten amendments in our Bill of Rights, ties to the “security” of our
country. The Second Amendment assured a vigilant, armed citizenry and it
did so for an explicit purpose, i.e. “being necessary to the security of a free
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19
Indeed, the Bruen majority was careful to emphasize that its opinion was not
meant to “suggest the unconstitutionality” of all licensing regimes and specifically
highlighted that “shall-issue” licensing regimes, “which often require applicants to
undergo a background check or pass a firearms safety course,” are unlikely to pose a
constitutional problem. Bruen, 142 S. Ct. at 2138, n.9.
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State….” To read the Second Amendment as providing an ever-expanding
individual right, without limits, therefore, runs counter to both its text and
the Framers’ own understanding.
As should be evident, I am appreciative that the court that speaks the
final word has agreed to provide more guidance on an issue of such national
importance. I cannot help but fear that, absent some reconciliation of the
Second Amendment’s several values, any further reductionism of Bruen will
mean systematic, albeit inconsistent, judicial dismantling of the laws that
have served to protect our country for generations. Furthermore, such
decisions will constrain the ability of our state and federal political branches
to address gun violence across the country, which every day cuts short the
lives of our citizens. This state of affairs will be nothing less than a Second
Amendment caricature, a right turned inside out, against freedom and
security in our State.
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