United States v. Diaz

Case: 23-50452      Document: 110-1         Page: 1   Date Filed: 09/18/2024




         United States Court of Appeal
              for the Fifth Circuit                              United States Court of Appeals
                                                                          Fifth Circuit

                             ____________                               FILED
                                                                September 18, 2024
                              No. 23-50452                         Lyle W. Cayce
                             ____________                               Clerk

United States of America,

                                                         Plaintiff—Appellee,

                                   versus

Ronnie Diaz, Jr.,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                         USDC No. 5:21-CR-2-1
               ______________________________

Before Smith, Wiener, and Douglas, Circuit Judges.
Jacques L. Wiener, Jr., Circuit Judge:
      Defendant-Appellant Ronnie Diaz, Jr. was charged with, inter alia,
possessing a firearm as a felon, in violation of 

(g)(1). He
moved to dismiss that charge, contending that the statute violates the Second
Amendment, both facially and as applied to him. The district court denied
that motion, and Diaz was convicted and sentenced. He appeals, again raising
his Second Amendment argument and adding a Commerce Clause challenge,
which he acknowledges is foreclosed by this court’s precedent. For the rea-
sons that follow, we AFFIRM.
Case: 23-50452       Document: 110-1        Page: 2    Date Filed: 09/18/2024




                                  No. 23-50452


                                       I.
       On November 4, 2020, officers from the San Antonio Police Depart-
ment conducted a traffic stop of a car driven by Diaz. The officers noted a
“strong odor of marijuana coming from the vehicle and empty baggies com-
monly known to contain narcotics.” Diaz was asked to exit the vehicle and
was placed in handcuffs. While his person was searched, he admitted that
there was ammunition in his pocket and that he was a convicted felon. A
search of the vehicle revealed a .45 caliber pistol, three baggies of metham-
phetamine, three baggies of counterfeit Xanax, and one small baggie of her-
oin.
       This was not Diaz’s first run-in with the law. After various misde-
meanors, he was convicted in 2014 in Texas state court of theft of a vehicle
and evading arrest or detention with a vehicle, and he was sentenced to three
years’ imprisonment. Then, in 2018, he was apprehended attempting to
break into a car and found to be in possession of a handgun and a baggie con-
taining methamphetamine. Diaz was convicted of possessing a firearm as a
felon, again in state court, and was sentenced to two years’ imprisonment.
       After the November 2020 traffic stop, Diaz was charged in the West-
ern District of Texas with the following: (1) count one, possession with intent
to distribute 50 grams or more of methamphetamine, in violation of 

(a)(1); (2) count two, possessing firearms during and in relation to a
drug trafficking crime, in violation of 

(c); and (3) count three,
being a felon in possession of a firearm, in violation of 

(g)(1)
and 924(a)(2). Diaz moved to dismiss count three of the indictment, arguing
that 

(g)(1) is unconstitutional under New York Rifle and Pistol
Association, Inc. v. Bruen, 

 (2022).
       The district court denied that motion, and, after a bench trial, found
Diaz guilty on all three counts. Diaz was sentenced to 120 months’




                                       2
Case: 23-50452       Document: 110-1        Page: 3    Date Filed: 09/18/2024




                                 No. 23-50452


imprisonment on counts one and three, to run concurrently, and 60 months’
imprisonment on count two, to run consecutively.
       Diaz brings two claims on appeal. First, he asserts that his conviction
under § 922(g)(1) is unconstitutional under the Second Amendment, both
facially and as applied to him. Second, he contends that § 922(g)(1) exceeds
Congress’s power under the Commerce Clause. He acknowledges that this
second argument is foreclosed under this court’s precedent, and that he
raises it only to preserve it for possible future review by the Supreme Court.
See United States v. Alcantar, 

 (5th Cir. 2013). We spend no
more words on that subject.
       We review constitutional challenges to a statute de novo. United States
v. Perez-Macias, 

 (5th Cir. 2003).
                                      II.
       The Second Amendment mandates that “[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. We begin by
tracing the courts’ application of this often-obfuscating language to statutes
regulating firearm possession and use.
       In 2001, this court evaluated the constitutionality of 

(g)(8), which prohibits firearm possession by those subject to domestic
violence restraining orders. United States v. Emerson, 

 (5th
Cir. 2001). We determined that the statute does not violate the Second
Amendment, which has always been limited in its application. 

. For
example, “it is clear that felons, infants[,] and those of unsound mind may be
prohibited from possessing firearms.” 

 The necessary finding of a present
and actual threat inherent in the issuance of a restraining order was a valid
reason to restrict the Amendment’s guarantee. 

.




                                       3
Case: 23-50452       Document: 110-1       Page: 4       Date Filed: 09/18/2024




                                 No. 23-50452


       Then, in 2003, we applied Emerson to § 922(g)(1) in United States v.
Darrington, 

 (5th Cir. 2003). Section 922(g)(1) regulates
possession of firearms by any person “who has been convicted in any court
of[] a crime punishable by imprisonment for a term exceeding one year.”
Darrington upheld the constitutionality of the statute by relying on Emerson’s
language about “felons, infants[,] and those of unsound mind.” 

 (quoting
Emerson, 

). No additional analysis ensued.
       The landscape of Second Amendment jurisprudence changed in
2008. In District of Columbia v. Heller, 

 (2008), the Supreme
Court held that a Washington D.C. law that prohibited possession of hand-
guns in the home was unconstitutional. The Court interpreted the language
of the Second Amendment and determined that its drafters intended for it to
protect “the right of law-abiding, responsible citizens to use arms in defense
of hearth and home.” 

. Thus, D.C.’s categorical prohibition did not
pass constitutional muster. 

 at 628–29. However, Justice Scalia wrote, the
right to bear arms is not unlimited: it is not a right to “keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose.”

. He cautioned that the opinion should not be read to “cast doubt
on longstanding prohibitions on the possession of firearms by felons and the
mentally ill,” among other limitations. 

 at 626–27. Those regulations, Hel-
ler said, are “presumptively lawful.” 

 at 627 n.26.
       After Heller, this court and its peers “adopted a two-step inquiry for
analyzing laws that might impact the Second Amendment.” Hollis v. Lynch,

 (5th Cir. 2016). We first considered “whether the chal-
lenged law impinges upon a right protected by the Second Amendment.” 

(quoting Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 

 (5th Cir. 2012)). If it did, we would then pro-
ceed to the second “means-end scrutiny” step, during which we determined
“whether to apply intermediate or strict scrutiny,” and then applied the



                                       4
Case: 23-50452       Document: 110-1       Page: 5     Date Filed: 09/18/2024




                                 No. 23-50452


appropriate scrutiny to the challenged law. Id.; see also Nat’l Rifle Ass’n, 

. However, even after Heller and its resultant two-step framework,
we continued to apply Darrington to bar challenges to § 922(g)(1) under the
Second Amendment. See, e.g., United States v. Anderson, 

, 352 &
n.6 (5th Cir. 2009) (explaining that Heller “provides no basis for reconsider-
ing Darrington” because it re-affirmed longstanding prohibitions on felons’
possessing firearms).
       In 2022, the Supreme Court revisited and refined Heller in Bruen.
There, the Court extended Heller’s protection for carrying handguns in the
home to carrying them publicly. 597 U.S. at 8–9. In so doing, the Court re-
jected the second step of the two-step framework that had developed after
Heller. Id. at 19 (“Despite the popularity of this two-step approach, it is one
step too many.”). “Step one,” the Court wrote, “is broadly consistent with
Heller, which demands a test rooted in the Second Amendment’s text, as in-
formed by history.” Id. However, instead of moving on to means-ends scru-
tiny, the Court held that, when step one’s requirements are met, the Consti-
tution presumptively protects that conduct. Id. at 17. The burden then shifts
to the government to “demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id. This involves ad-
dressing “how and why the regulations burden a law-abiding citizen’s right
to armed self-defense.” Id. at 29. The Court held that the plain text of the
Second Amendment protects the right to bear arms in public for self-defense,
and that the government had failed to “identify an American tradition” jus-
tifying the regulation of such behavior. Id. at 38–39. The challenged New
York law thus violated the Second Amendment.
       A panel of this court applied Bruen to find § 922(g)(8) unconstitu-
tional in United States v. Rahimi, 

, 450–51 (5th Cir. 2023), rev’d,

 (2024) (hereinafter “Rahimi I”). The panel considered vari-
ous “historical analogues” and found that they were not “relevantly similar”



                                       5
Case: 23-50452        Document: 110-1       Page: 6     Date Filed: 09/18/2024




                                  No. 23-50452


precursors to § 922(g)(8). Id. at 456. The Supreme Court reversed. 144 S.Ct.
at 1903. An eight-Justice majority held that § 922(g)(8) “fits comfortably” in
this Nation’s tradition of “preventing individuals who threaten physical
harm to others from misusing firearms.” Id. at 1897. The Court first cited
surety laws as a historical analogue. Those laws required individuals to post
bonds whenever there was a “probable ground to suspect of future misbehav-
iour.” Id. at 1899–1900 (quoting 4 Blackstone 251). Surety laws were used to
“prevent all forms of violence, including spousal abuse” and the misuse of
firearms. Id. at 1900. The Court also relied on “going armed” laws, which
prohibited “riding or going armed, with dangerous or unusual weapons, to
terrify the good people of the land.” Id. at 1901 (brackets omitted) (quoting
4 Blackstone 149). Because such conduct “disrupted the public order and led
almost necessarily to actual violence . . . . the law punished these acts with
forfeiture of the arms and imprisonment.” Id. (cleaned up).
       The Court examined “why and how” surety and going armed laws
burdened the Second Amendment right to bear arms, as instructed by Bruen.
Id. at 1898. It determined that, just like § 922(g)(8), both surety and going
armed laws were used “to mitigate demonstrated threats of physical vio-
lence.” Id. at 1901. In considering the “how,” the Court found that
§ 922(g)(8)’s burden is comparable to the burdens imposed by surety and
going armed laws. Id. None of these laws “broadly restrict arms use by the
public generally,” but instead apply only “once a court has found that the
defendant ‘represents a credible threat to the physical safety’ of another.”
Id. at 1901–02 (quoting § 922(g)(8)(C)(i)). Surety laws were temporary re-
strictions, like § 922(g)(8), which applies only while a restraining order is in
place. Id. at 1902. Finally, violating surety and going armed laws could result
in imprisonment. Id. “[I]f imprisonment was permissible to respond to the
use of guns to threaten the physical safety of others, then the lesser restriction
of temporary disarmament that Section 922(g)(8) imposes is also




                                        6
Case: 23-50452       Document: 110-1           Page: 7   Date Filed: 09/18/2024




                                  No. 23-50452


permissible.” Id. In short, the Court held that § 922(g)(8) does not violate
the Second Amendment, facially or as applied to Rahimi, because “[o]ur tra-
dition of firearm regulation allows the Government to disarm individuals who
present a credible threat to the physical safety of others.” Id.
       Having outlined the jurisprudence as it currently stands, we turn to
Diaz’s Second Amendment challenge.
                                        III.
       Diaz brings a facial and an as-applied challenge to the constitutionality
of 

(g)(1) under Bruen. We address the government’s prelim-
inary defenses before undertaking the historical analysis required by Bruen
and its progeny to decide the merits of Diaz’s claims.
                                        A.
       The government first contends that our pre-Bruen precedent such as
Darrington, which upheld the constitutionality of § 922(g)(1), is still the law
of the land. It notes that Bruen did not address § 922(g)(1), nor any other
“status-based gun restrictions.” See Bruen, 

 (Alito, J., concur-
ring) (“Our holding decides nothing about who may lawfully possess a fire-
arm.”). We have repeatedly held that Emerson and Darrington foreclose Sec-
ond Amendment challenges to § 922(g)(1). See, e.g., United States v. Massey,

 (5th Cir. 2017); Anderson, 

; United States v.
Mares, 

 (5th Cir. 2005); United States v. Everist, 

 (5th Cir. 2004). But each of those cases predates Bruen, which estab-
lished a new historical paradigm for analyzing Second Amendment claims.
Under the rule of orderliness, a later panel may overturn another panel’s de-
cision when it has “fallen unequivocally out of step with some intervening
change in the law.” In re Bonvillian Marine Servs., Inc., 

 (5th
Cir. 2021). Bruen constitutes such a change, “rendering our prior precedent
obsolete.” Rahimi I, 

.




                                         7
Case: 23-50452          Document: 110-1          Page: 8      Date Filed: 09/18/2024




                                      No. 23-50452


        The government maintains that these earlier cases survive Bruen be-
cause they were decided at Heller’s step one—historical tradition—and not
at its second step which was repudiated by Bruen. See Darrington, 351 F.3d at
633–34; Bruen, 

. But Darrington relied solely on Emerson for its
Second Amendment analysis, and Emerson was decided based on the means-
ends scrutiny that Bruen renounced. See Emerson, 

; Bruen, 597
U.S. at 22–24. 1 The Supreme Court in Rahimi declined to even mention Em-
erson, which would have been directly on point to its consideration of
§ 922(g)(8). The law of orderliness mandates that we abandon that prior
precedent.
        Even if our own case law is no longer binding, says the government,
the Supreme Court has already weighed in on the constitutionality of
§ 922(g)(1) as well. To be sure, there is language in the cases described above
that contrasts the regulations at issue with the regulation of felons’ pos-
sessing firearms. In Heller, the Court wrote that “nothing in our opinion
should be taken to cast doubt on the longstanding prohibitions on the posses-
sion of firearms by felons.” 

. Multiple concurrences in Bruen
reiterated the Justices’ intent to leave undisturbed those government regula-
tions that prohibit convicted felons from carrying firearms. See, e.g., 

 (Kavanaugh, J., concurring). Finally, Rahimi cited Heller’s language to
again state that prohibitions on possession of firearms by “felons and the
mentally ill” are “presumptively lawful.” 144 S. Ct. at 1902. The

        _____________________
        1
          Rahimi I specifically identified Emerson as “applying some form of means-ends
scrutiny sub silentio.” 

. Courts have recently (post-Rahimi-reversal) relied
on this reasoning, distinguishing cases such as Emerson that involve means-ends scrutiny.
See United States v. Alvarez, Crim. No. H-20-297, 

, at *3 (S.D. Tex. June
25, 2024); see also United States v. Petteway, No. 24 Cr. 80 (AT), 

, at *2
(S.D.N.Y. June 24, 2024) (adopting the same logic, distinguishing cases not involving
means-ends scrutiny, under Second Circuit precedent).




                                            8
Case: 23-50452          Document: 110-1         Page: 9       Date Filed: 09/18/2024




                                      No. 23-50452


government makes much of this language, suggesting that it can begin and
end our analysis.
        However, because none of those cases actually concerned § 922(g)(1),
they are not binding precedent on the issue now before us. The Court did not
complete any historical analysis of laws forbidding felons from possessing
firearms, as required by Bruen. The mentions of felons in those cases are mere
dicta. See Int’l Truck & Engine Corp. v. Bray, 

, 721 (5th Cir. 2004)
(“A statement is dictum if it ‘could have been deleted without seriously im-
pairing the analytical foundations of the holding’ and ‘being peripheral, may
not have received the full and careful consideration of the court that uttered
it.’” (quoting Gochicoa v. Johnson, 

, 286 n.11 (5th Cir. 2000)).
And although we recognized in McRorey v. Garland that we are generally
bound by Supreme Court dicta, 

 (5th Cir. 2024), that dicta
cannot supplant the most recent analysis set forth by the Supreme Court in
Rahimi, which we apply today. Without precedent that conducts Bruen’s his-
torical inquiry into our Nation’s tradition of regulating firearm possession by
felons in particular, we must do so ourselves. 2
        The government also raises the familiar argument that Diaz is not
among “the people” protected by the Second Amendment. We disagree.
There are two approaches to take in considering the constitutionality of gun
regulations. As now-Justice Barrett has written in an oft-cited passage, one

        _____________________
        2
           Not all courts agree with this proposition. The Eleventh Circuit has recently
relied solely upon Rahimi’s mention of Heller’s “felons and the mentally ill” language in
upholding the constitutionality of § 922(g)(1). See United States v. Rambo, No. 23-13772,

, at *2 (11th Cir. July 25, 2024) (per curiam); United States v. Young, No.
13-10464, 

, at *9 (11th Cir. July 19, 2024) (per curiam); United States v.
Johnson, No. 23-11885, 

, at *3 (11th Cir. July 11, 2024) (per curiam). We
respectfully disagree with this approach—especially after Rahimi—and believe that a full
historical analysis is required.




                                            9
Case: 23-50452       Document: 110-1           Page: 10   Date Filed: 09/18/2024




                                  No. 23-50452


approach “uses history and tradition to identify the scope of the right, and
the other uses that same body of evidence to identify the scope of the legisla-
ture’s power to take it away.” Kanter v. Barr, 

 (7th Cir.
2019) (Barrett, J., dissenting). Bruen mandates the second approach. See 

 (explaining that the right can be limited under certain circum-
stances, but that the government does not require citizens to “demonstrate a
special need for self-protection” to be entitled to the right in the first place).
“[A]ll people have the right to keep and bear arms,” but “history and tradi-
tion support Congress’s power to strip certain groups of that right.” Kanter,

 (Barrett, J., dissenting). The Court in Rahimi affirmed this
approach, assuming that Rahimi was protected by the Second Amendment
even though he had committed “family violence.” See 144 S.Ct. at 1898. As
Justice Thomas remarked in his dissent, it was “undisputed that the Second
Amendment applies to Rahimi . . . . [It] extends to ‘the people,’ and that ‘that
term unambiguously refers to all members of the political community, not an
unspecified subset.’” 144 S. Ct. at 1933 (Thomas, J., dissenting) (emphasis
added) (quoting Heller, 

); see also id. at 1907 (Gorsuch, J., con-
curring) (“In this case, no one questions that the law Mr. Rahimi challenges
addresses individual conduct covered by the text of the Second Amend-
ment.”).
       Diaz’s status as a felon is relevant to our analysis, but it becomes so in
Bruen’s second step of whether regulating firearm use in this way is “con-
sistent with the Nation’s historical tradition” rather than in considering the
Second Amendment’s initial applicability. See Bruen, 

. As in
Rahimi, the “two-step” view of Bruen is effectively collapsed into one ques-
tion: whether the law is consistent with our Nation’s history of firearm regu-
lation. See Rahimi, 144 S. Ct. at 1898.




                                          10
Case: 23-50452       Document: 110-1         Page: 11    Date Filed: 09/18/2024




                                  No. 23-50452


                                       B.
       Having disposed of the government’s initial contentions, we reach the
marrow of the case. We begin with Diaz’s as-applied challenge, because it is
“the narrower consideration.” See Buchanan v. Alexander, 

(5th Cir. 2019).
       The plain text of the Second Amendment covers the conduct prohib-
ited by § 922(g)(1), as it does with that of § 922(g)(8). See Rahimi, 144 S. Ct.
at 1907 (Gorsuch, J., concurring). The burden thus shifts to the government
to demonstrate that regulating Diaz’s possession of a firearm is “consistent
with the Nation’s historical tradition of firearm regulation.” Bruen, 

. To satisfy this burden, the government must “identify a well-estab-
lished and representative historical analogue, not a historical twin.” 

.
Evidence must be “relevantly similar” to the challenged law. 

. In
assessing similarity, we consider “whether modern and historical regulations
impose a comparable burden on the right of armed self-defense and whether
that burden is comparably justified.” 

 The government identifies as rele-
vant laws (1) focusing on how our Nation punished felons; and (2) disarming
certain classes of persons.
       For the purposes of assessing Diaz’s predicate offenses under
§ 922(g)(1), we may consider prior convictions that are “punishable by im-
prisonment for a term exceeding one year.” See § 922(g)(1). Diaz’s pertinent
criminal history consists of vehicle theft, evading arrest, and possessing a fire-
arm as a felon. Both he and the government discuss various drug offenses in
their briefing on his as-applied challenge, but those are not relevant for our
purposes. In 2018 and 2020, Diaz was charged with possession of a controlled
substance and possession with intent to deliver a controlled substance, but
those charges were dismissed. He was convicted in state court of possession
of less than two ounces of marijuana, but that is not a felony punishable by




                                        11
Case: 23-50452      Document: 110-1          Page: 12   Date Filed: 09/18/2024




                                   No. 23-50452


more than one year, as required by § 922(g)(1). And count one of the convic-
tion that Diaz appeals here (possession with intent to distribute) cannot serve
as a predicate for his § 922(g)(1) charge in the same indictment; that charge
must instead rely on previous history. Thus, the only relevant criminal con-
victions for our purposes are car theft, evading arrest, and possessing a fire-
arm as a felon. To survive Diaz’s as-applied challenge, the government must
demonstrate that the Nation has a longstanding tradition of disarming some-
one with a criminal history analogous to this.
       1. Punishment
       The government first cites historical laws authorizing capital punish-
ment and estate forfeiture as consequences for felonies. At the time of the
Founding, the death penalty was “the standard penalty for all serious
crimes.” Baze v. Rees, 

 (2008) (Thomas, J., concurring in the
judgment) (quoting Stuart Banner, The Death Penalty: An
American History 23 (2002)); see also Tennessee v. Garner, 

 (1985) (explaining that, at common law, “virtually all felonies were pun-
ishable by death”). Colonies and states also routinely made use of estate for-
feiture as punishment. See Beth A. Colgan, Reviving the Excessive Fines Clause,
102 CAL. L. REV. 277, 332 nn. 275 & 276 (2014) (collecting statutes). The
government asserts that, since these penalties imposed such severe burdens
on the right to bear arms, the lesser burden of disarmament via § 922(g)(1) is
consistent with our Nation’s history and traditions.
       At the outset, Diaz contends that laws about capital punishment and
estate forfeiture are not relevant because Bruen directs courts to consider
whether the regulation is “consistent with the Nation’s historical tradition
of firearm regulation.” See Bruen, 

 (emphasis added). Diaz notes
that every historical law that Bruen addressed was an “explicit firearm regu-
lation.”   That   makes    sense     because      Bruen was   addressing   the




                                        12
Case: 23-50452        Document: 110-1        Page: 13    Date Filed: 09/18/2024




                                   No. 23-50452


constitutionality of a statute that entirely constrained carrying firearms out-
side of the home, applicable to everyone equally. Section 922(g)(1), in con-
trast, focuses on a specific group of people, so we may consider laws regulat-
ing that group, even if they are not explicitly related to firearms. In Rahimi,
the Court did just that, considering several historical laws that were not ex-
plicitly related to guns, yet sometimes applied to limit their possession. See
144 S. Ct. at 1899. For example, surety laws targeted various kinds of “mis-
behaviour,” just as did rules allowing capital punishment. See id. None of
those laws were passed solely for the purpose of regulating firearm possession
or use.
          At the time of our Nation’s birth, “felony” was “a term of loose sig-
nification.” The Federalist No. 42, at 228 (James Madison); see also
Will Tress, Unintended Collateral Consequences: Defining Felony in the Early
American Republic, 

, 465 (2009) (emphasizing the
“ambiguity in the meaning of felony” at the Founding). The category was “a
good deal narrower” then. Lange v. California, 

 (2021).
“Many crimes classified as misdemeanors, or nonexistent, at common law
are now felonies.” Tennessee v. Garner, 

 (1985). For example,
possessing a firearm as a felon—one of Diaz’s three predicate convictions
justifying the application of § 922(g)(1)—was not considered a crime until
1938 at the earliest. See Federal Firearms Act, ch. 850, §§ 1(6), 2(f), 

, 1250–51 (1938); An Act to Strengthen the Federal Firearms Act, Pub.
L. No. 87–342, § 2, 

, 757 (1961). The fact that Diaz is a felon today,
then, does not necessarily mean that he would have been one in the 18th cen-
tury.
          However, the government’s evidence is more specifically targeted to
Diaz’s circumstances. It cites laws targeting the crime of theft, which was
considered a felony at the time of the Founding and was punished accord-
ingly. See, e.g., 2 Records of the Court of Assistants of



                                        13
Case: 23-50452      Document: 110-1        Page: 14    Date Filed: 09/18/2024




                                 No. 23-50452


the Colony of the Massachusetts Bay 1630–1692, at 32 (John
Noble ed., 1904) (punishing theft by ordering, among other penalties, that
“all his estate shalbe forfected”); Act of Feb. 21, 1788, ch. 37, 1788 N.Y.
Laws 664–65 (authorizing the death penalty for theft of chattels worth over
five pounds). Our own research reveals that those convicted of horse theft—
likely the closest colonial-era analogue to vehicle theft—were often subject
to the death penalty. Kathryn Preyer, Crime and Reform in Post-Revolutionary
Virginia, 

, 73 (1983). Those colonial-era laws cor-
respond to the law against theft of a vehicle that serves as a predicate offense
for Diaz’s § 922(g)(1) charge. They establish that our country has a historical
tradition of severely punishing people like Diaz who have been convicted of
theft.
         Addressing Bruen’s two “central considerations,” the “why” of
these examples aligns with the “why” of § 922(g)(1). As the government ex-
plains, these laws were “justified by the need to adequately punish felons,
deter reoffending, and protect society from those proven untrustworthy to
follow the law.” The purpose of capital punishment in colonial America was
threefold: deterrence, retribution, and penitence. See Banner, supra, at 23.
Virginia, for example, punished the crime of horse theft with the death pen-
alty for the purpose of deterring the crime. Robert M. Bohm, Death-
Quest: An Introduction to the Theory and Practice of
Capital Punishment 6 (1999). The precursor to § 922(g)(1), in turn,
was enacted to “bar possession of a firearm from persons whose prior behav-
iors have established their violent tendencies.” 114 Cong. Rec. 14773
(daily ed. May 23, 1968) (statement of Sen. Russell Long of Louisiana). It was
intended to keep firearms out of the hands of those who are “a hazard to law-
abiding citizens” and who had demonstrated that “they may not be trusted
to possess a firearm without becoming a threat to society.” Id. The




                                      14
Case: 23-50452        Document: 110-1          Page: 15     Date Filed: 09/18/2024




                                    No. 23-50452


justification for § 922(g)(1) is relevantly similar to that of the offered exam-
ples: to deter violence and lawlessness.
       As to the “how,” these laws achieved their goals by permanently pun-
ishing offenders, as does § 922(g)(1). Capital punishment is obviously per-
manent, and the majority of the estate forfeiture laws that the government
cites did not provide an opportunity for offenders to regain their posses-
sions. 3 Permanent disarmament under § 922(g)(1) does not punish such
crimes “to an extent beyond what was done at the founding,” given the gov-
ernment’s evidence that crimes such as theft were punished so severely and
permanently. See Rahimi, 144 S. Ct. at 1898. The Court in Rahimi was per-
suaded that, “if imprisonment was permissible to respond to the use of guns
to threaten the physical safety of others, then the lesser restriction of tempo-
rary disarmament that § 922(g)(8) imposes is also permissible.” Id. at 1902.
Here, if capital punishment was permissible to respond to theft, then the
lesser restriction of permanent disarmament that § 922(g)(1) imposes is also
permissible. These laws establish a historical tradition of permanently pun-
ishing certain offenders who the evidence shows would have been considered
felons and exposed to these types of penalties at the time of the Founding.
       We emphasize that our holding is not only premised on the fact that
Diaz is a felon. Simply classifying a crime as a felony does not meet the level
of historical rigor required by Bruen and its progeny. The legislature has de-
termined that the term “felony” encompasses all crimes punishable by more
than one year of imprisonment, rendering Diaz a felon today. But not all fel-
ons today would have been considered felons at the Founding. Further,

       _____________________
       3
          There are some exceptions. See Colgan, supra, at 332 n.276 (citing a 1718
Pennsylvania law allowing a forfeited estate to be returned to a “criminal’s wife and
children”). But, combined with the capital punishment examples and the going armed laws
described below, it is clear that America has a tradition of permanent punishment.




                                          15
Case: 23-50452         Document: 110-1          Page: 16      Date Filed: 09/18/2024




                                     No. 23-50452


Congress may decide to change that definition in the future. Such a shifting
benchmark should not define the limits of the Second Amendment, without
further consideration of how that right was understood when it was first rec-
ognized. At that time, at least one of the predicate crimes that Diaz’s
§ 922(g)(1) conviction relies on—theft—was a felony and thus would have
led to capital punishment or estate forfeiture. Disarming Diaz fits within this
tradition of serious and permanent punishment. 4
        2. Firearms
        We could stop here, as the punishment-focused laws discussed above
demonstrate a historical tradition of severely punishing people like Diaz who
would have been felons at the Founding. At least one court, though, has ex-
pressed concern that just because “Founding-era governments punished
some nonviolent crimes with death does not suggest that the particular (and
distinct) punishment at issue—lifetime disarmament—is rooted in our Na-
tion’s history and tradition.” Range v. Attorney General, 

 (3d
Cir. 2023) (en banc), vacated in light of Rahimi, 

 (2024). In that
court’s view, “[t]he greater does not necessarily include the lesser.” 

 We
thus consider the government’s proffered firearm-focused evidence as well,
to further illuminate the “how” of our country’s tradition of punishment.
See Bruen, 

.
        The government first identifies as relevant two proposals from state
constitutional conventions: a speech from a minority group in Pennsylvania
and an amendment offered by Samuel Adams of Massachusetts. Heller dis-
cussed both of these sources. See 

 (calling the Pennsylvania
proposal “highly influential”). The Pennsylvania address suggested that

        _____________________
        4
          Our opinion today does not foreclose future as-applied challenges by defendants
with different predicate convictions.




                                           16
Case: 23-50452       Document: 110-1        Page: 17     Date Filed: 09/18/2024




                                  No. 23-50452


citizens have a personal right to bear arms “unless for crimes committed, or
real danger of public injury.” Bernard Schwartz, The Bill of
Rights: A Documentary History 662, 665 (1971). Massachusetts’s
proposed amendment said that the Constitution authorized “the people of
the United States, who are peaceable citizens, [to keep] their own arms.” 

. The government maintains that these contemporaneous examples
support a national tradition of disarming those who are violent or pose a
threat to public safety. However, relying solely on these types of unadopted
proposals to establish a tradition is a “dubious” practice. Heller, 

. Nevertheless, taken together with the other evidence discussed herein,
they do help to illuminate the “public understanding” of the Second Amend-
ment around the time of its ratification. See Bruen, 

. They re-
veal that the right to bear arms at the time was not unlimited, and that the
government could prevent people who had committed crimes or were “quar-
relsome” from accessing weapons. See Samuel Johnson, A Diction-
ary of the English Language (5th Ed. 1773) (defining “unpeacea-
ble”).
         The government also points to colonial-era statutes that prohibited
going armed offensively and authorized forfeiture of weapons as punishment.
See, e.g., Acts and Resolves, Public and Private, of the Province of the Mas-
sachusetts Bay 52–53 (1869); Acts and Laws of His Majesty’s Province of
New Hampshire in New England; with Sundry Acts of Parliament 17 (1771);
Collection of All Such Acts of the General Assembly of Virginia, of a Public
and Permanent Nature, as Are Now in Force 33 (1794); A Compilation of the
Statutes of Tennessee of a General and Permanent Nature, from the Com-
mencement of the Government to the Present Time 99–100 (1836). These
laws punished “those who had menaced others with firearms.” Rahimi, 144
S. Ct. at 1900. Doing so “disrupted the ‘public order’ and ‘le[d] almost nec-
essarily to actual violence.’” Id. at 1901 (alteration in original) (quoting State




                                       17
Case: 23-50452         Document: 110-1          Page: 18      Date Filed: 09/18/2024




                                      No. 23-50452


v. Huntly, 

, 421–22 (1843) (per curiam)). Rahimi found these
same going armed laws to be a relevant historical analogue to § 922(g)(8). Id.
        The size of these laws’ burden on the right to bear arms is comparable
to that of § 922(g)(1). They both provide for permanent arms forfeiture as a
penalty. See, e.g., Acts and Resolves, Public and Private, of the Province of
the Massachusetts Bay 53. Capital punishment and estate forfeiture were not
the only severe penalties imposed on those who violated colonial-era laws.
Cf. Range, 

. Imposing permanent disarmament as a punish-
ment is also within our Nation’s history and tradition. Applying § 922(g)(1)
to Diaz “fits neatly” within that tradition. See Rahimi, 144 S. Ct. at 1901. 5
        Diaz complains that Bruen allows this type of reasoning-by-analogy
only when the regulation in question was “unimaginable at the founding.”
Bruen, 

. He says that, because § 922(g)(1) does not address
“unprecedented societal concerns or dramatic technological changes,” only
directly similar historical analogues should be considered. Id. at 27. This “bi-
furcated” approach has been rejected by the Supreme Court. 6 In Bruen, the
Court noted that handgun possession for self-defense was a “straightforward
historical inquiry,” such that the historical analogues were “relatively simple
to draw.” 

. Even so, it compared the Second Amendment
standard with the First and Sixth Amendments. 

 at 24–25. And, in Rahimi,
the Court considered surety and going armed laws, despite the fact that

        _____________________
        5
          We acknowledge that the justification behind going armed laws—to “mitigate
demonstrated threats of physical violence”—does not necessarily support a tradition of
disarming Diaz, whose underlying convictions do not inherently involve a threat of
violence. See 144 S. Ct. at 1901. We focus on these laws to address the “how” of colonial-
era firearm regulation, rather than the “why,” which is supported by other evidence. See
Bruen, 

.
        6
           Justice Thomas, as the lone dissenting voice in Rahimi, advanced this
interpretation. See 144 S. Ct. at 1933 (Thomas, J., dissenting).




                                           18
Case: 23-50452        Document: 110-1          Page: 19     Date Filed: 09/18/2024




                                    No. 23-50452


domestic violence is not a new phenomenon. 144 S. Ct. at 1901; see also id. at
1904 (Sotomayor, J., concurring) (“[T]he Government has not identified a
founding-era or Reconstruction-era law that specifically disarmed domestic
abusers, but it did not need to do so.” (citation omitted)). Going armed laws
are relevant historical analogues to § 922(g)(1), just as Rahimi found them to
be with respect to § 922(g)(8).
       “Taken together,” laws authorizing severe punishments for thievery
and permanent disarmament in other cases establish that our tradition of fire-
arm regulation supports the application of § 922(g)(1) to Diaz. 7 See id. Diaz’s
Second Amendment claim fails.
                                          C.
       Diaz also brings a facial challenge to § 922(g)(1). To sustain a facial
challenge, “the challenger must establish that no set of circumstances exists
under which the statute would be valid.” United States v. Salerno, 

 (1987). This Diaz cannot do, because the statute is constitutional as
applied to the facts of his own case. See Rahimi, 144 S. Ct. at 1898.
                                         IV.
       The government has met its burden to show that applying 

(g)(1) to Diaz is consistent with this Nation’s historical tradition of fire-
arm regulation. See Bruen, 

. At the time of the Second Amend-
ment’s ratification, those—like Diaz—guilty of certain crimes—like theft—
were punished permanently and severely. And permanent disarmament was
a part of our country’s arsenal of available punishments at that time. Because


       _____________________
       7
           Because the evidence discussed herein is sufficient to support a historical
tradition of permanently disarming people like Diaz, we do not address the government’s
other historical examples.




                                          19
Case: 23-50452       Document: 110-1        Page: 20     Date Filed: 09/18/2024




                                  No. 23-50452


applying § 922(g)(1) to Diaz “fits neatly” in this tradition, it is constitutional
as applied and facially as well. See Rahimi, 144 S. Ct. at 1901.
       Diaz’s conviction is AFFIRMED.




                                       20