United States v. Steven Duarte

                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                    No. 22-50048

                Plaintiff-Appellee,        D.C. No. 2:20-cr-
                                             00387-AB-1
 v.

STEVEN DUARTE, AKA Shorty,                    OPINION

                Defendant-Appellant.

         Appeal from the United States District Court
            for the Central District of California
         André Birotte, Jr., District Judge, Presiding
      Argued and Submitted En Banc December 11, 2024
                    Pasadena, California
                      Filed May 9, 2025
Before: Mary H. Murguia, Chief Judge, and Kim McLane
Wardlaw, Johnnie B. Rawlinson, Sandra S. Ikuta, John B.
  Owens, Ryan D. Nelson, Daniel P. Collins, Lawrence
 VanDyke, Holly A. Thomas, Salvador Mendoza, Jr. and
           Roopali H. Desai, Circuit Judges.

               Opinion by Judge Wardlaw;
            Concurrence by Judge R. Nelson;
              Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by Judge VanDyke
2                         USA V. DUARTE


                          SUMMARY *


                         Criminal Law

    The en banc court affirmed Steven Duarte’s conviction
for felon in possession of a firearm in violation of 

(g)(1).
   During the pendency of this appeal, the Supreme Court
decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

 (2022), in which it clarified the standard for
analyzing Second Amendment claims:

        When the Second Amendment’s plain text
        covers an individual’s conduct, the
        Constitution presumptively protects that
        conduct. The government must then justify
        its regulation by demonstrating that it is
        consistent with the Nation’s historical
        tradition of firearm regulation.

    Duarte argued that under Bruen’s framework,
§ 922(g)(1) is unconstitutional as applied to non-violent
felons like him.
    The parties disagreed as to the applicable standard of
review. Because the outcome is the same under either de
novo or plain error review, the en banc court assumed
without deciding that de novo review applies, the standard
for which Duarte advocated.


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        USA V. DUARTE                        3


   Aligning itself with the Fourth, Eighth, Tenth, and
Eleventh Circuits, the en banc court held that § 922(g)(1) is
not unconstitutional as applied to non-violent felons like
Duarte.
    Judge R. Nelson, joined by Judge Ikuta, concurred in the
judgment. Judge Nelson wrote that because Duarte failed to
raise his Second Amendment challenge before the district
court, this court must apply plain error review. He wrote that
there was no plain error by the district court, and would
uphold the conviction; he would not reach the merits of
Duarte’s Second Amendment challenge under de novo
review.
    Judge Collins concurred in the judgment. He agreed with
the majority’s ultimate conclusion that Duarte’s as-applied
Second Amendment challenge to his conviction under
§ 922(g)(1) fails on the merits even under de novo
review. He disagreed with the majority’s conclusion that,
standing alone, either of the two historical traditions
proffered by the Government—viz., (1) the recognized
traditional power of legislatures with respect to felons, i.e.,
those who have committed serious crimes; and (2) the
limited historical power of legislatures, at the time of the
founding, to disarm specified categories of persons—is
sufficient to supply a basis for the categorical application of
§ 922(g)(1) to felons. In his view, § 922(g)(1) survives
Second Amendment scrutiny only when these two historical
traditions are taken together.
    Judge VanDyke, joined by Judges Ikuta and R. Nelson
as to Part I (Standard of Review), concurred in the judgment
in part and dissented in part. As to the standard of review,
he wrote (1) de novo review does not apply here under Fed.
R. Crim. P. 12; (2) the plain error standard of review in Fed.
4                      USA V. DUARTE


R. Crim. P. 52(b) applies, and the majority should have
affirmed the conviction on that ground; and (3) the en banc
court should have used this opportunity to correct erroneous
exceptions to Rule 52(b)’s plain error standard. Regarding
the majority’s de novo review of the merits of Duarte’s
Second Amendment claim, he wrote that the majority errs
(1) by concluding that Bruen did not affect the holding or
analysis of this court’s precedent rejecting Second
Amendment challenges to § 922(g)(1); (2) by concluding
that legislatures have unilateral discretion to disarm anyone
by assigning the label “felon” to whatever conduct they
desire; and (3) by reaching the broad conclusion that
legislatures can disarm entire classes of individuals, even
absent a specific showing of individual dangerousness or
propensity to violence.



                        COUNSEL

William A. Glaser (argued), Attorney, Appellate Section;
Lisa H. Miller, Deputy Assistant Attorney General; Nicole
M. Argentieri, Principal Deputy Assistant Attorney General;
Criminal Division, United States Department of Justice,
Washington, D.C.; Suria M. Bahadue and Juan M.
Rodriguez, Assistant United States Attorneys; Kyle Kahan,
Special Assistant United States Attorney; Bram M. Alden
and David R. Friedman, Assistant United States Attorneys,
Criminal Appeals Section Chiefs; Mack E. Jenkins,
Assistant United States Attorney, Criminal Division Chief;
E. Martin Estrada, United States Attorney; Office of the
United States Attorney, United States Department of Justice,
Los Angeles, California; for Plaintiff-Appellee.
                       USA V. DUARTE                        5


Sonam A. H. Henderson (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Federal Public Defender’s Office, Los Angeles, California,
for Defendant-Appellant.
Katherine M. Hurrelbrink, Appellate Attorney; Kasha
Castillo, Executive Director, Southern District of California;
Federal Defenders of San Diego Inc., San Diego, California;
Carmen Smarandoiu, Appellate Chief; Jodi Linker, Federal
Public Defender, Northern District of California; Federal
Public Defender's Office, San Francisco, California; for
Amici Curiae Ninth Circuit Federal Public and Community
Defender Offices.
Matthew P. Cavedon and Clark M. Neily III, Cato Institute,
Washington, D.C., for Amicus Curiae Cato Institute.
Joseph G.S. Greenlee and Erin M. Erhardt, National Rifle
Association of America, Institute for Legislative Action,
Fairfax, Virginia, for Amici Curiae National Rifle
Association of America and Firearms Policy Coalition.
Neil K. Sawhney and Shilpi Agarwal, American Civil
Liberties Union Foundation of Northern California, San
Francisco, California; Cecillia D. Wang, American Civil
Liberties Union Foundation, San Francisco, California;
David D. Cole, American Civil Liberties Union Foundation,
Washington, D.C.; Louise Melling, M. Yasmin Cader, Ria
T. Mar, and Brandon Buskey, American Civil Liberties
Union Foundation, New York, New York; Summer Lacey,
American Civil Liberties Union Foundation of Southern
California, Los Angeles, California for Amici Curiae
American Civil Liberties Union, American Civil Liberties
Union of Northern California, American Civil Liberties
Union of Southern California, American Civil Liberties
6                     USA V. DUARTE


Union of Nevada, American Civil Liberties Union of
Arizona, and American Civil Liberties Union of Alaska.
Alex Hemmer and Sarah A. Hunger, Deputy Solicitors
General; Samantha Sherman, Assistant Attorney General;
Jane E. Notz, Solicitor General; Kwame Raoul, Illinois
Attorney General; Office of the Illinois Attorney General,
Chicago, Illinois; Rob Bonta, California Attorney General,
Office of the California Attorney General, Sacramento,
California; Philip J. Weiser, Colorado Attorney General,
Office of the Colorado Attorney General, William Tong,
Connecticut Attorney General, Office of the Connecticut
Attorney General, Hartford, Connecticut; Kathleen
Jennings, Delaware Attorney General, Office of the
Delaware Attorney General, Wilmington, Delaware; Brian
L. Schwalb, District of Columbia Attorney General, Office
of the District of Columbia Attorney General, Washington,
D.C.; Anne E. Lopez, Hawai’i Attorney General, Office of
the Hawai’i Attorney General, Honolulu, Hawai’i; Aaron M.
Frey, Maine Attorney General, Office of the Maine Attorney
General, August, Maine; Anthony G. Brown, Maryland
Attorney General, Office of the Maryland Attorney General,
Baltimore, Maryland; Andrea J. Campbell, Commonwealth
of Massachusetts Attorney General, Office of the
Commonwealth of Massachusetts Attorney General, Boston,
Massachusetts; Dana Nessel, Michigan Attorney General,
Office of the Michigan Attorney General, Lansing,
Michigan; Keith Ellison, Minnesota Attorney General,
Office of the Minnesota Attorney General, St. Paul,
Minnesota; Aaron D. Ford, Nevada Attorney General, Office
of the Nevada Attorney General, Carson City, Nevada;
Matthew J. Platkin, New Jersey Attorney General, Office of
the New Jersey Attorney General, Trenton, New Jersey;
Raùl Torrez, New Mexico Attorney General, Office of the
                      USA V. DUARTE                     7


New Mexico Attorney General, Albuquerque, New Mexico;
Letitia James, New York Attorney General, Office of the
New York Attorney General, New York, New York; Joshua
H. Stein, North Carolina Attorney General, Office of the
North Carolina Attorney General, Raleigh, North Carolina;
Ellen F. Rosenblum, Oregon Attorney General, Office of the
Oregon Attorney General, Salem, Oregon; Michelle A.
Henry, Commonwealth of Pennsylvania Attorney General,
Office of the Commonwealth of Pennsylvania Attorney
General, Harrisburg, Pennsylvania; Peter F. Neronha, Rhode
Island Attorney General, Office of the Rhode Island
Attorney General, Providence, Rhode Island; Charity Clark,
Vermont Attorney General, Office of the Vermont Attorney
General, Montpelier, Vermont; Robert W. Ferguson,
Washington Attorney General, Office of the Washington
Attorney General, Olympia, Washington; for Amici Curie
Illinois, California, Colorado, Connecticut, Delaware,
District of Columbia, Hawaii, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, New York, North Carolina, Oregon,
Pennsylvania, Rhode Island, Vermont, and Washington.
8                           USA V. DUARTE


                             OPINION

WARDLAW, Circuit Judge:

    

(g)(1) prohibits those who have been
“convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year” from receiving
or possessing a firearm. Today, § 922(g)(1) is one of the
most significant gun laws in our modern regulatory
framework. Section 922(g)(1) accounts for the highest
percentage of convictions under § 922(g), 1 and is considered
the “cornerstone” of the federal background check system
for firearm purchases. 2 Following the Supreme Court’s
decision in District of Columbia v. Heller, 

(2008), every circuit to address the facial constitutionality of
§ 922(g)(1) upheld its categorical constitutionality. Medina
v. Whitaker, 

 (D.C. Cir. 2019) (collecting
cases). And no circuit, before the Supreme Court issued its
decision in New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 

 (2022), had held that the law was
unconstitutional as applied to certain felons. See 

1
  The United States Sentencing Commission estimates that 88.5% of
convictions under § 922(g) are due to prior felony convictions. See U.S.
Sent’g Comm’n, Quick Facts: 

(g) Firearms Offenses
(2024),        https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/quick-facts/Felon_In_Possession_FY23.pdf; see also
Rehaif v. United States, 

, 239 (2019) (Alito, J., dissenting)
(noting that § 922(g) “probably does more to combat gun violence than
any other federal law”).
2
 Dru Stevenson, In Defense of Felon-in-Possession Laws, 

, 1575 (2022); 

 at 1594–98 (describing § 922(g)(1)’s
impact on the federal background check system).
                        USA V. DUARTE                        9


    This was the state of Second Amendment affairs when
Steven Duarte was indicted, tried, convicted, and sentenced
as a felon in possession of a firearm in violation of
§ 922(g)(1). It was only after he filed his notice of appeal to
our court, that the Supreme Court issued its decision in
Bruen, which worked a sea change in the analytical
framework that the federal courts had developed since Heller
issued. The Court in Bruen rejected the “two-step
framework” Courts of Appeals had “coalesced around” since
Heller to evaluate whether gun regulations violate the
Second Amendment. Bruen, 597 U.S. at 17. The Court
clarified the standard for analyzing Second Amendment
claims:

        When the Second Amendment’s plain text
        covers an individual’s conduct, the
        Constitution presumptively protects that
        conduct. The government must then justify
        its regulation by demonstrating that it is
        consistent with the Nation’s historical
        tradition of firearm regulation.

Id. at 24.
     Bruen was issued on June 23, 2022; Duarte filed his
opening brief in our court on January 27, 2023, and for the
first time challenged the constitutionality of § 922(g)(1) as
applied to him.
    Duarte argues that § 922(g)(1) is unconstitutional as
applied to non-violent felons like him under Bruen’s
analytical framework. While this is an issue of first
impression for our court, we do not write on a blank slate, as
Courts of Appeals across the nation have been wrestling with
fresh challenges to the viability of § 922(g)(1) in the wake
10                      USA V. DUARTE


of Bruen. Four circuits have upheld the categorical
application of § 922(g)(1) to all felons. See United States v.
Hunt, 

, 707–08 (4th Cir. 2024) (rejecting an as-
applied challenge on a categorical basis); United States v.
Jackson, 

, 1129 (8th Cir. 2024) (same);
Vincent v. Bondi, 

, 1265–66 (10th Cir. 2025)
(rejecting an as-applied challenge because neither Bruen nor
United States v. Rahimi, 

 (2024), abrogated
circuit precedent foreclosing such a challenge); United
States v. Dubois, 

, 1293 (11th Cir. 2024), cert.
granted, judgment vacated, No. 24-5744, 

(U.S. Jan. 13, 2025) (holding that Bruen did not abrogate
circuit precedent foreclosing such challenges).
    Other circuits have rejected as-applied challenges, but
have left open the possibility that § 922(g)(1) might be
unconstitutional as applied to at least some felons. See
United States v. Diaz, 

, 471 (5th Cir. 2024)
(rejecting an as-applied challenge because the defendant’s
underlying felony was sufficiently similar to a death-eligible
felony at the founding); United States v. Williams, 

, 661–62 (6th Cir. 2024) (rejecting an as-applied
challenge because the defendant’s criminal record
sufficiently showed that he was dangerous enough to warrant
disarmament). By contrast, the Third Circuit has held that
§ 922(g)(1) is unconstitutional as applied to a felon who was
convicted of making a false statement to secure food stamps.
See Range v. Att’y Gen., 

, 222–23 (3d Cir.
2024) (en banc). And, as of the date of this writing, the First
and Second Circuits have declined to address constitutional
challenges to § 922(g)(1) on the merits, while the Seventh
Circuit has yet to definitively resolve an as-applied
challenge. See United States v. Langston, 

,
419–20 (1st Cir. 2024) (rejecting an as-applied challenge
                       USA V. DUARTE                       11


because there was no “plain” error); United States v. Caves,
No. 23-6176-CR, 

, at *1 (2d Cir. Dec. 26,
2024) (same); United States v. Gay, 

, 846–47
(7th Cir. 2024) (assuming for the sake of argument that there
is some room for an as-applied challenge, but rejecting the
defendant’s specific as-applied challenge because his prior
felonies included aggravated battery of a peace officer and
possession of a weapon while in prison).
   Today, we align ourselves with the Fourth, Eighth, Tenth
and Eleventh Circuits and hold that § 922(g)(1) is not
unconstitutional as applied to non-violent felons like Steven
Duarte.
           I. Factual and Procedural History
    On March 20, 2020, at approximately 9:30 p.m.,
Inglewood police officers observed a car drive through a
stop sign. Duarte was the only passenger in the vehicle. As
officers activated their car’s lights and sirens, Duarte threw
a pistol, without its magazine, out of the car’s rear window.
After asking the driver and Duarte to step out of the vehicle,
officers searched the car and found a magazine loaded with
six .380-caliber bullets stuffed between the center console
and the front passenger seat, within reach from the passenger
compartment. The magazine fit “perfectly” into the
discarded pistol. In September 2020, a federal grand jury
charged Duarte with a single count of violating § 922(g)(1).
    The indictment charged Duarte with knowingly
possessing a firearm with knowledge that he had previously
been convicted of at least one of five felonies:
(1) Vandalism, in violation of California Penal Code Section
594(a), in 2013; (2) Felon in Possession of a Firearm, in
violation of California Penal Code Section 29800(a)(1), in
2016; (3) Evading a Peace Officer, in violation of California
12                     USA V. DUARTE


Vehicle Code Section 2800.2, in 2016; (4) Possession of a
Controlled Substance for Sale, in violation of California
Health and Safety Code Section 11351.5, in 2016; and
(5) Evading a Peace Officer, in violation of California
Vehicle Code Section 2800.2, in 2019.
    Following a jury verdict of guilty, the district court
sentenced Duarte to a below-guidelines sentence of 51
months in prison. Duarte timely filed his notice of appeal on
March 9, 2022. Duarte did not challenge his indictment or
conviction as violating his Second Amendment rights before
the district court.
    On June 23, 2022, during the pendency of Duarte’s
appeal, the Supreme Court decided Bruen. Based on this
new authority, Duarte argued in his opening brief to our
court that because he has only non-violent prior felony
convictions, § 922(g)(1) is unconstitutional as applied to
him. He argued that our prior precedent upholding felon-in-
possession laws as applied to non-violent felons is clearly
irreconcilable with Bruen. He further argued that under
Federal Rule of Criminal Procedure 12(c)(3) he
demonstrated good cause to raise this defect in the
indictment now, as it had been previously foreclosed by
Ninth Circuit precedent.
    A divided panel of our court accepted Duarte’s Second
Amendment argument. See United States v. Duarte, 

, 661 (9th Cir. 2024), reh’g en banc granted,
opinion vacated, 

 (9th Cir. 2024). First, the
panel majority found that Duarte demonstrated good cause
for failing to raise his Second Amendment challenge to the
district court as a Rule 12(b)(3) pre-trial motion because at
the time our circuit precedent in United States v. Vongxay,

 (9th Cir. 2010), foreclosed his Second
                           USA V. DUARTE                            13


Amendment argument. Duarte, 101 F.4th at 663. Second,
the panel found that de novo review applied because “[w]e
normally review claims of constitutional violations de
novo,” id., and once good cause is shown, permitting our
consideration of the argument for the first time, we “apply
whatever default standard of review would normally govern
the merits,” id. Third, the majority determined that Vongxay
was “clearly irreconcilable” with Bruen, and thus, its holding
that § 922(g)(1) applied to non-violent felons was no longer
controlling under Miller v. Gammie, 

 (9th Cir.
2003) (en banc). Duarte, 101 F.4th at 665. 3 Finally,
applying the Bruen analytical framework, the panel majority
held that the plain text of the Second Amendment covered
Duarte’s conduct and that the Government failed to meet its
burden of showing that the application of § 922(g)(1) was
consistent with the nation’s historical tradition of firearm
regulation. Id. at 671, 691.
    A majority of the active judges of our court voted to
rehear this appeal en banc. Having done so, although we
agree that Duarte demonstrated good cause under Federal
Rule of Criminal Procedure 12(c)(3), we now hold that
§ 922(g)(1) is not unconstitutional as applied to non-violent
felons like Duarte.
                    II. Standard of Review
    The parties disagree as to whether the good cause
standard in Federal Rule of Criminal Procedure 12(c)(3) or
the plain error standard in Federal Rule of Criminal
Procedure 52(b) governs our review of Duarte’s


3
  Dissenting, Judge M. Smith contended that Vongxay was not clearly
irreconcilable with Bruen, and thus, foreclosed Duarte’s constitutional
challenge. Duarte, 101 F.4th at 691–92 (M. Smith, J., dissenting).
14                      USA V. DUARTE


constitutional challenge. The Government asserts that
because Duarte did not raise his constitutional challenge
before the district court, we must review his conviction for
plain error. By contrast, Duarte contends that de novo
review is appropriate, because under our precedent “Rule
12’s good-cause standard . . . displac[es] the plain-error
standard under [Rule] 52(b).” United States v. Guerrero,

 (9th Cir. 2019). He argues further that
once he demonstrates good cause, we should apply the
default standard of review that would govern the merits;
here, de novo review. See United States v. Aguilera-Rios,

 (9th Cir. 2014); United States v.
Stackhouse, 

, 1198 (9th Cir. 2024).
    However, as the Government acknowledges, under
either the good cause/de novo review standard or the plain
error standard, we must address the merits of Duarte’s
constitutional claim. And, because under either standard, the
outcome is the same—the district court did not err and
§ 922(g)(1) is constitutional as applied to non-violent
felons—we need not decide which standard applies here.
See United States v. Begay, 

, 1089–90 (9th Cir.
2022) (en banc); see also Hunt, 123 F.4th at 702 (assuming
for the sake of argument that de novo review applies to a
newly raised Bruen challenge to a § 922(g)(1) conviction).
Therefore, “we assume without deciding that de novo review
applies,” the standard of review for which Duarte advocates.
Begay, 33 F.4th at 1089.
              III. The Second Amendment
     A. Bruen Did Not Alter Heller’s Assurances as to
                 Felon-In-Possession Laws.
   Although Heller recognized “an individual right to keep
and bear arms,” 

, “[l]ike most rights, the right
                       USA V. DUARTE                       15


secured by the Second Amendment is not unlimited,” 

. The Second Amendment does not provide an
individual “a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.” 

Rather, the Supreme Court in Heller clarified that:

       Although we do not undertake an exhaustive
       historical analysis today of the full scope of
       the Second Amendment, nothing in our
       opinion should be taken to cast doubt on
       longstanding prohibitions on the possession
       of firearms by felons and the mentally ill, or
       laws forbidding the carrying of firearms in
       sensitive places such as schools and
       government buildings, or laws imposing
       conditions and qualifications on the
       commercial sale of arms.

 at 626–27 (emphasis added). The Court further
emphasized that such limitations on the right to bear arms
were “presumptively lawful regulatory measures.” 

 at 627
n.26.
    Relying on this declaration, we have recognized that
“[n]othing in Heller can be read legitimately to cast doubt on
the constitutionality of § 922(g)(1)” and that “felons are
categorically different from the individuals who have a
fundamental right to bear arms.” Vongxay, 

. And we have continued to foreclose Second
Amendment challenges to § 922(g)(1), regardless of
whether an underlying felony is violent or not. See United
States v. Phillips, 

 (9th Cir. 2016).
Indeed, since Heller, the Supreme Court has repeated its
“assurances” that Heller “did not cast doubt on such
16                      USA V. DUARTE


longstanding regulatory measures as ‘prohibitions on the
possession of firearms by felons and the mentally ill.’”
McDonald v. City of Chicago, 

 (2010)
(citation omitted).
    Bruen did not change or alter this aspect of Heller.
Rather, Bruen and Rahimi support Vongxay’s holding that
§ 922(g)(1) constitutionally prohibits the possession of
firearms by felons. First, the Bruen Court largely derived its
constitutional test from Heller and stated that its analysis
was “consistent with Heller and McDonald.” 597 U.S. at 10;
id. at 17 (“In keeping with Heller, we hold that when the
Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that
conduct.”); id. at 26 (“The test that we set forth in Heller and
apply today requires courts to assess whether modern
firearms regulations are consistent with the Second
Amendment’s text and historical understanding”); id. at 31
(“Having made the constitutional standard endorsed in
Heller more explicit, we now apply that standard to New
York’s proper-cause requirement.”).
    Second, Bruen limited the scope of its opinion to “law-
abiding citizens,” evidenced by its use of the term fourteen
times throughout the opinion. See, e.g., id. at 8–9 (“In
[Heller and McDonald], we recognized that the Second and
Fourteenth Amendments protect the right of an ordinary,
law-abiding citizen to possess a handgun in the home for
self-defense.” (emphasis added)); id. at 26 (“The Second
Amendment ‘is the very product of an interest balancing by
the people’ and it ‘surely elevates above all other interests
the right of law-abiding, responsible citizens to use arms’ for
self-defense.” (citation omitted and emphasis added)); id. at
60 (“None of these historical limitations on the right to bear
arms approach New York’s proper-cause requirement
                             USA V. DUARTE                            17


because none operated to prevent law-abiding citizens with
ordinary self-defense needs from carrying arms in public for
that purpose.” (emphasis added)). 4
    Third, six justices, including three in the majority,
emphasized that Bruen did not disturb the limiting principles
in Heller and McDonald. 597 U.S. at 72 (Alito, J.,
concurring) (“Our holding decides nothing about who may
lawfully possess a firearm or the requirements that must be
met to buy a gun.”); id. at 80–81 (Kavanaugh, J., concurring,
joined by Roberts, C.J.) (quoting Heller’s language); id. at
129 (Breyer, J., dissenting, joined by Sotomayor and Kagan,
JJ.) (“Like Justice Kavanaugh, I understand the Court’s
opinion today to cast no doubt on that aspect of Heller’s
holding.”).
    Finally, the Bruen majority clarified that “nothing in our
analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing
regimes.” 5 Id. at 38 n.9 (majority opinion). Justifying this
reservation, the Supreme Court explained that “shall issue”
laws require background checks for the very purpose of
ensuring that licenses are not issued to felons:

           Because these licensing regimes do not
           require applicants to show an atypical need
           for armed self-defense, they do not
           necessarily      prevent      “law-abiding,

4
    See also Bruen, 597 U.S. at 15, 29–31, 33 n.8, 38 & n.9, 70–71.
5
  A “shall-issue” regime is “where authorities must issue concealed-carry
licenses whenever applicants satisfy certain threshold requirements,
without granting licensing officials discretion to deny licenses based on
a perceived lack of need or suitability.” Bruen, 597 U.S. at 13 (majority
opinion).
18                       USA V. DUARTE


        responsible citizens” from exercising their
        Second Amendment right to public carry. . . .
        Rather, it appears that these shall-issue
        regimes, which often require applicants to
        undergo a background check or pass a
        firearms safety course, are designed to ensure
        only that those bearing arms in the
        jurisdiction are, in fact, “law-abiding,
        responsible citizens.”

Id. (citations omitted). This preservation of “‘shall-issue’
regimes and related background checks . . . arguably
implie[s] that it [is] constitutional to deny firearm licenses to
individuals with felony convictions.” Vincent v. Garland,

, 1202 (10th Cir. 2023), cert. granted,
judgment vacated, 

 (2024); Vincent, 127
F.4th at 1264 (readopting prior analysis on remand); see also
Range, 124 F.4th at 283 (Krause, J., concurring) (“Prior
felony convictions are by far the most common reason
individuals fail NICS background checks.[] And the
Supreme Court in Bruen endorsed the use of background
checks, for violent and non-violent offenses alike, to ensure
individuals bearing firearms are ‘law-abiding’ citizens.”
(footnote omitted)).
    And most recently, in Rahimi the Supreme Court
reaffirmed Heller’s “assurances,” McDonald, 

, noting that “many such prohibitions, like those on the
possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’” 602 U.S. at 699 (citation omitted);
see also id. at 735 (Kavanaugh, J., concurring) (observing
that Heller “recognized a few categories of traditional
exceptions to the [Second Amendment] right,” including the
“longstanding prohibitions on the possession of firearms by
                       USA V. DUARTE                       19


felons” (quotation marks omitted)). Indeed, the Supreme
Court was careful to note that “we do not suggest that the
Second Amendment prohibits the enactment of laws banning
the possession of guns by categories of persons thought by a
legislature to present a special danger of misuse.” Id. at 698
(majority opinion) (citing Heller, 

.).
    Together, these repeated and consistent “assurances”
make clear that felon-in-possession laws, like § 922(g)(1),
are presumptively constitutional, demonstrating that our
holding in Vongxay remains consistent with the Supreme
Court’s articulation of Second Amendment rights. Further,
these “assurances” recognize a historical tradition of firearm
regulation that supports the categorical application of
§ 922(g)(1) to felons like Duarte. See Jackson, 110 F.4th at
1125 (“Given these assurances by the Supreme Court, and
the history that supports them, we conclude that there is no
need for felony-by-felony litigation regarding the
constitutionality of § 922(g)(1).”). Our application of
Bruen’s constitutional test to Duarte’s conduct confirms this
reading.
 B. Bruen Step One: Duarte’s Conduct Is Covered by
               the Second Amendment.
    Turning to the application of Bruen, “[w]e first consider
whether the Second Amendment’s plain text covers an
individual’s proposed course of conduct.” United States v.
Perez-Garcia, 

, 1178 (9th Cir. 2024), petition
for cert. filed, --- U.S. ---- (U.S. Dec. 26, 2024) (Nos. 22-
50314, 22-50316).         “If so, the Second Amendment
presumptively protects that conduct[, and] [t]he Government
then bears the burden of justifying the challenged regulation
by showing that it is consistent with our nation’s ‘historical
20                      USA V. DUARTE


tradition of firearm regulation.’” 

 (quoting Bruen, 597
U.S. at 24).
    We conclude that Duarte’s proposed course of conduct
is covered under the plain text of the Second Amendment.
“The text of the Second Amendment refers to the right of
‘the people’ to keep and bear arms.” Id. at 1178 (citing U.S.
Const. amend. II). As the Court in Heller observed, “‘[t]he
people’ seems to have been a term of art employed in select
parts of the Constitution[,] . . . refer[ring] to a class of
persons who are part of a national community or who have
otherwise developed sufficient connection with this country
to be considered part of that community.” Id. at 580.
Therefore, the Heller Court instructed that we start “with a
strong presumption that the Second Amendment right is
exercised individually and belongs to all Americans.” Id. at
581. Accordingly, because Duarte is undoubtably a member
of the national community, he is part of “the people” and the
“Constitution presumptively protects” his right to possess a
firearm. Bruen, 597 U.S. at 17.
    Nonetheless, the Government contends that Duarte does
not fall within the scope of the Second Amendment because
of his status as a felon. The Government first relies on a
“massively popular,” Heller, 

, treatise by
Thomas Cooley, which states that “[c]ertain classes have
been almost universally excluded” from “the people,”
including “the idiot, the lunatic, and the felon, on obvious
grounds.”      Thomas M. Cooley, A Treatise on the
Constitutional Limitations Which Rest upon the Legislative
Power of the States of the American Union 28–29 (Little,
Brown & Co., 1st ed. 1868). And in line with this view, the
Government notes that historically felons could be excluded
from certain rights, such as the right to hold office and serve
on juries. Thus, the Government reasons that felons are
                         USA V. DUARTE                        21


constitutionally excludable from the scope of the Second
Amendment.
    However, this passage from Cooley does not address the
scope of constitutionally protected individual rights, like the
one contained in the Second Amendment. Rather, Cooley’s
description of certain groups excluded from “the people” is
derived from his discussion of “[w]ho are the people in
whom is vested the sovereignty of the State?” Id. at 28.
There, Cooley recognizes that “although all persons are
under the protection of the government, and obliged to
conform their action to its laws, there are some who are
altogether excluded from participation in the government.”
Id. (emphasis added). In other words, Cooley’s passage
refers to “elective franchise” and those who “should be
admitted to a voice in the government.” Id. at 29; see also
Williams, 113 F.4th at 647 (“Cooley is discussing the right
to vote—the ‘elective franchise’ and ‘a voice in [the
government’s] administration.’” (citation omitted)).
    These collective rights are distinct from individual
rights, such as the rights set forth in the First, Second, and
Fourth Amendments. See Kanter v. Barr, 

(7th Cir. 2019) (Barrett, J., dissenting) (“[T]he right to vote
is held by individuals, but they do not exercise it solely for
their own sake; rather, they cast votes as part of the collective
enterprise of self-governance.”). Indeed, when discussing
the right to assemble and petition, Cooley takes a broader
view of “the people,” explaining that:

        The first amendment to the Constitution
        further declares that Congress shall make no
        law abridging the right of the people
        peaceably to assemble and to petition the
        government for a redress of grievances. . . .
22                      USA V. DUARTE


       When the term the people is made use of in
       constitutional law or discussions, it is often
       the case that those only are intended who
       have a share in the government through being
       clothed with the elective franchise. . . . But in
       all the enumerations and guaranties of rights
       the whole people are intended . . . . In this
       case, therefore, the right to assemble is
       preserved to all the people, and not merely to
       the electors, or to any other class or classes
       of the people.

Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 267–68
(Little, Brown & Co. 1880) (second emphasis added). And
in describing the Second Amendment, Cooley observes that
its meaning “undoubtedly is, that the people, from whom the
militia must be taken, shall have the right to keep and bear
arms.” Id. at 271.
    This view comports with how other individual rights like
those of the First and Fourth Amendments—which are rights
held by “the people”—apply to felons. See Pell v.
Procunier, 

 (1974) (“[A] prison inmate
retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections
system.”); United States v. Lara, 

 (9th Cir.
2016) (applying the Fourth Amendment to a defendant on
probation who was convicted under § 922(g)(1)). Thus, “[a]
felon might lose the right to vote. But that does not mean
the government can strip them of their right to speak freely,
practice the religion of their choice, or to a jury trial.”
Williams, 113 F.4th at 647; See Range, 124 F.4th at 226
                             USA V. DUARTE                               23


(“We see no reason to adopt a reading of ‘the people’ that
excludes Americans from the scope of the Second
Amendment while they retain their constitutional rights in
other contexts.”).
   Next, the Government relies on language in Vongxay
where we observed:

         [M]ost scholars of the Second Amendment
         agree that the right to bear arms was
         “inextricably . . . tied to” the concept of a
         “virtuous citizen[ry]” that would protect
         society through “defensive use of arms
         against criminals, oppressive officials, and
         foreign enemies alike,” and that “the right to
         bear arms does not preclude laws disarming
         the unvirtuous citizens (i.e. criminals).”

 (alteration in original) (citation omitted).
However, we are not convinced that this language places
Duarte, and other felons, outside the ambit of the Second
Amendment. As an initial matter, Vongxay recognized that
this “historical question has not been definitively resolved.”

 And although some of our sister circuits have cited this
aspect of Vongxay with approval, 6 other jurists have noted

6
  See, e.g., United States v. Yancey, 

, 684–85 (7th Cir. 2010)
(per curiam) (“[M]ost scholars of the Second Amendment agree that the
right to bear arms was tied to the concept of a virtuous citizenry and that,
accordingly, the government could disarm ‘unvirtuous citizens.’” (citing
Vongxay, 

)); United States v. Carpio-Leon, 

, 979–80 (4th Cir. 2012) (“[F]elons were excluded from the right to
arms because they were deemed unvirtuous.” (citation and quotation
marks omitted)); Binderup v. Att’y Gen., 

 (3d Cir.
24                         USA V. DUARTE


that the “historical evidence is inconclusive at best.” United
States v. Skoien, 

 (7th Cir. 2010) (en banc)
(Sykes, J., dissenting); see also Folajtar v. Att’y Gen., 

, 915–20 (3d Cir. 2020) (Bibas, J., dissenting)
(criticizing the historical foundation for the theory that the
right to keep and bear arms was limited to those who are
virtuous). Indeed, then-Judge Barrett noted that “virtue
exclusions are associated with civic rights[,]” which, as
discussed above, are distinct from individual rights. Kanter,

 (Barrett, J., dissenting). Thus, in the face of
these conflicting interpretations of history, we adhere to the
Supreme Court’s definition of “the people,” which does not
exclude felons. Heller, 

. 7 Accordingly, we
hold that Duarte’s status as a felon does not remove him
from the ambit of the Second Amendment; he is one of “the
people” who enjoys Second Amendment rights.




2016) (en banc) (citing Vongxay, 

, for the proposition
that felons are excluded from the right to bear arms because they are
“unvirtuous citizens”).
7
  The Government also contends that the “people” need not have the
same meaning in the Second Amendment as it does in the First and
Fourth Amendments because of Heller and Bruen’s use of the language
“law-abiding” citizens. Although we recognize that this language limits
Heller and Bruen’s holdings, it does not follow that it also limits the
scope of the Second Amendment. See Rahimi, 602 U.S. at 702 (“[T]hose
decisions did not define the term and said nothing about the status of
citizens who were not ‘responsible.’ The question was simply not
presented.”). Instead, we interpret the use of the phrase “law-abiding”
as recognizing a historical tradition of disarming felons.
                        USA V. DUARTE                       25


  C. Bruen Step Two: Section 922(g)(1) Is Consistent
        with Our Historical Tradition of Firearm
                      Regulation.
    Turning to the second step of the Bruen analysis, we hold
that the Government has met its burden of showing that
§ 922(g)(1) “is consistent with the Nation’s historical
tradition of firearm regulation.” Bruen, 597 U.S. at 24.
    Under Bruen, courts must engage in analogical reasoning
to determine “whether the modern regulation is ‘relevantly
similar’ to historical laws and traditions, . . . so as to
‘evince[ ] a comparable tradition of regulation.’” Perez-
Garcia, 96 F.4th at 1181 (citations omitted). Two metrics
guide our analysis: (1) “whether modern and historical
regulations impose a comparable burden on the right of
armed self-defense” (the “how”); and (2) “whether that
burden is comparably justified” (the “why”). Bruen, 597
U.S. at 29 (citation omitted). “[A]nalogical reasoning
requires only that the government identify a well-established
and representative historical analogue, not a historical twin.”
Id. at 30. Thus, “even if a modern-day regulation is not a
dead ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.” Id.
Ultimately, “the appropriate analysis involves considering
whether the challenged regulation is consistent with the
principles that underpin our regulatory tradition.” Rahimi,
602 U.S. at 692 (emphasis added).
   Furthermore, not all historical evidence is entitled to
equal weight. See Bruen, 597 U.S. at 34. Because our
inquiry focuses on interpreting the Second Amendment as
the founding generation would have understood it, we
primarily look to historical regulations extant when the
Second and Fourteenth Amendments were adopted in 1791
26                         USA V. DUARTE


and 1868, respectively. 8 See id. However, we may consider
pre- and post-ratification history to the extent that it does not
contravene founding-era evidence. See id. at 35–36, 39. In
sum, Bruen’s historical test requires that we attempt to place
ourselves in the shoes of the founding generation, and to
evaluate from this point of view whether the present
regulation would be consistent with its understanding of the
Second Amendment.
    To support the application of § 922(g)(1) to Duarte, the
Government proffers a variety of historical sources that
evince two regulatory principles that: (1) legislatures may
disarm those who have committed the most serious crimes;
and (2) legislatures may categorically disarm those they
deem dangerous, without an individualized determination of
dangerousness. We address each in turn, and agree that
either supplies a basis for the categorical application of
§ 922(g)(1) to felons. 9
             1. Historical Felony Punishments.
    First, “death was ‘the standard penalty for all serious
crimes’ at the time of the founding.” Bucklew v. Precythe,

8
 We recognize that there is “ongoing scholarly debate” regarding the
appropriate time frame of our analysis—whether we must only look to
1791 and the surrounding period or whether we may also consider 1868
and the surrounding period. See Rahimi, 602 U.S. at 692 n.1 (quoting
Bruen, 597 U.S. at 37). The Supreme Court has not resolved this issue,
and we need not decide it here, as the historical evidence from both
periods is consistent. See id.
9
  We do not disagree with Judge Collins’s conclusion that “taken
together” both historical principles—that legislatures may disarm those
who have committed the most serious crimes, and that categorical
disarmament was also within the legislative power—serves to bolster our
conclusion that § 922(g)(1) is categorically constitutional.         See
Concurring Op., Collins, J., at 58–60; see also Rahimi, 602 U.S. at 698.
                           USA V. DUARTE                             27

, 129 (2019) (citation omitted); see also
Tennessee v. Garner, 

 (1985) (explaining that,
at common law, “virtually all felonies were punishable by
death”). Likewise, “[c]olonies and states also routinely
made use of estate forfeiture as punishment.” Diaz, 116
F.4th at 468 (citing Beth A. Colgan, Reviving the Excessive
Fines Clause, 

, 332 nn.275 & 276
(2014) (collecting statutes)); see also Range, 124 F.4th at
267–71 (Krause, J., concurring) (collecting statutes). In
1769, Blackstone defined a felony as “an offence which
occasions a total forfeiture of either lands, or goods, or both,
at the common law; and to which capital or other punishment
may be superadded.” 4 William Blackstone, Commentaries
on the Laws of England 95 (1st ed. 1769). And these
punishments were not limited to violent felonies, as
“nonviolent crimes such as forgery and horse theft were
capital offenses.” Medina, 

; see Stuart
Banner, The Death Penalty: An American History 23 (2002)
(describing the escape attempts of men condemned to die for
forgery and horse theft in Georgia between 1790 and 1805);
Jackson, 110 F.4th at 1127 (collecting laws that punished
non-violent offenses with death and estate forfeiture).
Indeed, in 1790, the First Congress made counterfeiting and
forgery capital offenses. See Act of Apr.30, 1790, ch. 9,
§ 14, 

, 115. 10

10
  Colonies and states also authorized seizure of firearms from those who
engaged in misdemeanor hunting offenses, such as hunting partridge or
deer. See, e.g., Act of Oct. 9, 1652, Laws and Ordinances of New
Netherlands 138 (1868) (forbidding partridge and game hunting “on pain
of forfeiting the gun”); Act of Apr. 20, ch. III (1745), 23 Acts of the
North Carolina General Assembly 218, 219 (1805) (prohibiting
nonresidents from hunting deer in “the King’s Wast” and stating that any
28                          USA V. DUARTE


    Thus, “it is difficult to conclude that the public, in 1791,
would have understood someone facing death and estate
forfeiture to be within the scope of those entitled to possess
arms.” Medina, 

. Certainly, if the greater
punishment of death and estate forfeiture was permissible to
punish felons, then the lesser restriction of permanent 11
disarmament is also permissible. See Rahimi, 602 U.S. at
699 (“[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 permissible.”); see also Diaz, 116
F.4th at 469 (“[I]f capital punishment was permissible to
respond to theft, then the lesser restriction of permanent
disarmament that § 922(g)(1) imposes is also permissible.”);
Jackson, 110 F.4th at 1127; Hunt, 123 F.4th at 705–06.



violator “shall forfeit his Gun” to the authorities). Although we
recognize that these laws effected a temporary disarmament, we agree
with our sister circuits that these laws support a historical tradition of
disarming those who violated the law. See Jackson, 110 F.4th at 1127;
Hunt, 123 F.4th at 706.
11
    We note that § 922(g)(1) does not necessarily affect permanent
disarmament of all felons. Under § 921(a)(20), certain offenses are
excluded from § 922(g)(1)’s ambit including “offenses relating to the
regulation of business practices.” 

(a)(20). Furthermore,
“[a]ny conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter.” 

 And under
§ 925(c), a felon may seek administrative relief and regain his right to
bear arms. 

(c). However, this “relief provision has been
rendered inoperative . . . for Congress has repeatedly barred the Attorney
General from using appropriated funds ‘to investigate or act upon [relief]
applications.’” See Logan v. United States, 

, 28 n.1 (2007)
(citation omitted).
                       USA V. DUARTE                      29


    Indeed, pre- and post-ratification history support the
view that legislatures could disarm those who committed the
most serious crimes. The 1689 English Bill of Rights—“the
‘predecessor to our Second Amendment’”—guaranteed that
“Protestants . . . may have Arms for their Defence suitable
to their Conditions, and as allowed by Law[.]” Bruen, 597
U.S. at 44 (emphasis added) (citations and quotation marks
omitted). “The purpose of this clause, according to
historians, was to leave no doubt that it was Parliament that
had regulatory power over firearms, not the Crown.”
Atkinson v. Garland, 

, 1031 (7th Cir. 2023)
(Wood, J., dissenting) (citing Carl T. Bogus, The Hidden
History of the Second Amendment, 

, 379–84 (1998)). And “[i]n Pennsylvania, Anti-
Federalist delegates—who were adamant supporters of a
declaration of fundamental rights—proposed that the people
should have a right to bear arms ‘unless for crimes
committed, or real danger of public injury from
individuals.’” Perez-Garcia, 96 F.4th at 1188 (emphasis and
citation omitted).
    Furthermore, in 1820, one of the nation’s “best known
proponents of abolishing capital punishment, Edward
Livingston,” prepared a systematic code of criminal law for
Louisiana, which replaced the death penalty for crimes such
as forgery, perjury, and fraud with permanent forfeiture of
certain rights, including the “right of bearing arms.” Range,
124 F.4th at 271–72 (Krause, J., concurring); See Edward
Livingston, A System of Penal Law for the State of Louisiana
377, 378 (Phila., J. Kay, Jun. & Bro., Pittsburgh, J.L. Kay &
Co. 1833) (including the right to bear arms as a civil right
that may be forfeited); id. at 393 (between three and seven
years’ imprisonment and permanent forfeiture of civil rights
for perjury); id. at 409 (between seven and fifteen years’
30                          USA V. DUARTE


imprisonment and permanent forfeiture of civil rights for
forgery). Livingston’s work won acclaim from founders
such as Thomas Jefferson, James Madison, Justice Joseph
Story, and Chief Justice John Marshall. See Range, 124
F.4th at 272 (Krause, J., concurring). 12 Though these codes
were ultimately not adopted, the creation and reception of
them serves as evidence of an unbroken understanding that
the legislature could permanently disarm those who
committed the most serious crimes consistent with the
Second Amendment. See id.
    The motivations for these historical punishments are
relevantly similar to the justification for § 922(g)(1). “The
purpose of capital punishment in colonial America was
threefold: deterrence, retribution, and penitence.” Diaz, 116
F.4th at 469. Likewise, “[t]he precursor to § 922(g)(1) . . .
was enacted to ‘bar possession of a firearm from persons
whose prior behaviors have established their violent
tendencies.’” Id. (quoting 114 Cong. Rec. 14773 (daily ed.
May 23, 1968) (statement of Sen. Russell Long of
Louisiana)). Thus, historical felony punishments are
relevantly similar—sharing the “how” and “why”—to
§ 922(g)(1) and support its application to Duarte and all
other felons.
   In response, Duarte first challenges the frequency with
which the punishments of death and estate forfeiture were
imposed at the time of the founding. Specifically, he

12
   See also Letter from John Marshall, Chief Justice, Supreme Court of
the United States, to Edward Livingston (Oct. 24, 1825),
https://findingaids.princeton.edu/catalog/C0280_c3493 (last visited Feb.
7, 2025) (noting that he had “no marginal notes to make nor any
alterations to suggest” and stating that “no former legislator has relied
sufficiently on [provisions that deprived criminals of civil political
rights]; and [that he had] strong hope of its efficacy”).
                        USA V. DUARTE                       31


contends that the notion that all felonies at the founding were
actually punished by death or forfeiture is “shaky.” See
Kanter, 

 (Barrett, J., dissenting) (“The
premise of this argument—that the states permanently
extinguished the rights of felons, either by death or operation
of law, in the eighteenth and nineteenth centuries—is
shaky.”).
    However, this argument misperceives our standard. To
find Duarte’s punishment consistent with the founding
generation’s understanding of the Second Amendment,
history need not show that every felony was punished with
death and estate forfeiture. It may be the case that by the
time of the founding, legislatures made the policy choice to
retreat from harsher punishments. But this does not mean
that, as a matter of constitutional authority, legislatures
lacked the ability to impose such punishments. Holding
otherwise would “force[] 21st-century regulations to follow
late-18th-century policy choices, giving us ‘a law trapped in
amber’ . . . [a]nd it assumes that founding-era legislatures
maximally exercised their power to regulate.” Rahimi, 602
U.S. at 739–40 (Barrett, J., concurring). Instead, the
exposure to capital punishment and estate forfeiture is
sufficient to demonstrate that the founding generation would
view § 922(g)(1)’s permanent disarmament as consistent
with the Second Amendment.
    Duarte next contends that, even assuming that death and
estate forfeiture were the standard punishments at the time
of the founding, today’s felonies do not correspond with
felonies at the founding that were eligible for death and
estate forfeiture. See Lange v. California, 

, 311
(2021) (“The felony category then was a good deal narrower
than now.”). And he asserts that relying only on the modern
32                      USA V. DUARTE


felony label would provide legislatures too much discretion
to define away Second Amendment rights.
    However, this discretion is consistent with our nation’s
history. Since the founding, legislatures have been permitted
to identify conduct that they deem the most serious and to
punish perpetrators with severe deprivations of liberty. See
Jackson, 110 F.4th at 1127 (“This historical record suggests
that legislatures traditionally possessed discretion to
disqualify categories of people from possessing firearms to
address a danger of misuse by those who deviated from legal
norms, not merely to address a person’s demonstrated
propensity for violence.”); Hunt, 123 F.4th at 707 (“Just as
early legislatures retained the discretion to disarm categories
of people because they refused to adhere to legal norms in
the pre-colonial and colonial era, today’s legislatures may
disarm people who have been convicted of conduct the
legislature considers serious enough to render it a felony.”).
     To the extent that Duarte contends that we should limit
the application of § 922(g)(1) to felonies that at the time of
the founding were punished with death, a life sentence, or
estate forfeiture, we reject such a narrow view of history.
Indeed, under Duarte’s and the now-vacated panel opinion’s
approach, modern felonies that have been considered closely
related to gun violence and presenting a danger to the
community such as drug trafficking offenses could not form
the basis for a § 922(g)(1) conviction. See Duarte, 101 F.4th
at 691 n.16 (noting that criminalizing drug possession did
not gain momentum until the early 20th century, and modern
“illicit drugs” were legal “for a long stretch of this country’s
history”); Dissenting Op. at 99–100 (“[T]here are no
comparable analogues that allowed for disarmament based
upon drug offenses.”); see also Williams, 113 F.4th at 659
(noting that drug trafficking is a serious offense that poses a
                           USA V. DUARTE                            33


danger to the community and often leads to violence). To
adopt such a test would create “a law trapped in amber.”
Rahimi, 602 U.S. at 691.
      2. Laws Categorically Disarming Dangerous
                      Individuals.
    Second, the Government points to a historical tradition
of disarming “categories of persons thought by a legislature
to present a special danger of misuse.” Rahimi, 602 U.S. at
698. The historical record reveals a host of regulations that
disarmed those whom the legislature deemed dangerous on
a categorical basis. See Jackson, 110 F.4th at 1126;
Atkinson, 70 F.4th at 1035 n.2 (Wood, J., dissenting); Range,
124 F.4th at 255–72 (Krause, J., concurring).
    “[I]n the late 1600s, . . . the government disarmed non-
Anglican Protestants who refused to participate in the
Church of England, . . . and those who were ‘dangerous to
the Peace of the Kingdom.” Jackson, 110 F.4th at 1126
(citations omitted). The same Parliament that enacted the
English Bill of Rights also disarmed Catholics who refused
to take an oath renouncing their faith, except as necessary
for self-defense. See Range, 124 F.4th at 256–57 (Krause,
J., concurring). Likewise, the colonies enacted similar
restrictions on Catholics, prohibited the transfer of weapons
to Native Americans, 13 and banned slaves and free Black
people from possessing firearms. See id. at 259, 264. And
during the revolutionary period states disarmed those who

13
    Although they did not directly prohibit Native Americans from
possessing firearms, “these laws still inform how early settlers of the
colonies that became the United States thought about regulating
firearms.” Williams, 113 F.4th at 652 n.8. “Their key idea was to keep
weapons out of the hands of the Native Americans, whom colonists
believed were hostile and dangerous.” Id.
34                           USA V. DUARTE


refused to swear oaths of loyalty to the emerging nation. See
id. at 259–63; Jackson, 110 F.4th at 1126–27; Atkinson, 70
F.4th at 1035 (Wood, J., dissenting).
    Consistent with this tradition, through the late 1800s
states continued to promulgate categorical restrictions on the
possession of firearms by certain groups of people. These
laws included restrictions on: (1) the sale of firearms to, or
the possession of firearms by, individuals below specified
ages; 14 (2) the sale of firearms to those of unsound mind;15
(3) the possession of firearms by those who were




14
   At least ten state statutes restricted the possession or sale of firearms
to those below certain ages: Act of July 13, 1892, ch. 159, § 5, 

, 117 (D.C.); Act of Feb. 2, 1856, No. 26, § 1, 1855 Ala. Acts 17; Act
of Apr. 8, 1881, ch. 548, § 1, 

, 716; Act of Feb. 17,
1876, No. 128, § 1, 

, 112; Act of Feb. 10, 1882, ch.
4, §§ 1-2, 1882 N.J. Acts 13, 13-14; Act of May 10, 1883, § 1, ch. 375,

, 556; Act of Mar. 6, 1893, ch. 514, § 1, 1893 N.C.
Pub. Laws 468, 468; Act of June 10, 1881, No. 124, § 1, 

, 111-112; Act of Apr. 13, 1883, ch. 374, § 1, 

, 157; Act of Nov. 16, 1896, No. 111, § 1, 

, 83.
15
   Three state statutes restricted the sale of firearms to those of unsound
mind: Act of Feb. 4, 1881, ch. 3285, No. 67, § 1, 

, 87;
Crimes and Punishments-Relating to Minors and Deadly Weapons or
Toy Pistols, ch. 105, § 1, 

; Act of Feb. 17,
1899, ch. 1, § 52, 1899 N.C. Pub. Laws 3.
                            USA V. DUARTE                               35


intoxicated; 16 and (4) the possession of weapons by certain
vagrants—known as “tramps.” 17
    Indeed, laws disarming “tramps” illustrate the broad and
imprecise nature of categorical disarmament. “Tramps”
were typically defined as those who went “about from place
to place begging and asking or subsisting upon charity.” See,
e.g., Act of Aug. 1, 1878, ch. 38, § 1, 

.
Tramps were an “object of fear” and described by one legal
scholar as “the chrysalis of every species of criminal.”
Lawrence Friedman, Crime and Punishment in American
History 102 (1993) (quotation marks omitted). Indeed, the
Ohio Supreme Court described tramps as follows:

         [T]he genus tramp, in this country, is a public
         enemy. He is numerous, and he is dangerous.
         He is a nomad, a wanderer on the face of the
         earth, with his hand against every honest

16
   Four other state statutes restricted the possession of firearms by those
who were intoxicated: Act of Feb. 23, 1867, ch. 12, § 1, 

; Act of Feb. 28, 1878, ch. 46, § 2, 

; 1 Mo.
Rev. Stat. ch. 24, Art. II, § 1274, at 224 (1879); Act of Apr. 3, 1883, ch.
329, § 3, 1883 Wis. Sess. Laws, Vol. 1, at 290.
17
   And thirteen more state statutes restricted the possession of firearms
by those who were deemed “tramps”: Act of Mar. 27, 1879, ch. 59, § 4,

, 394; Act of Mar. 27, 1879, ch. 155, § 8, 

, 225; Arrest Trial and Punishment of Tramps, ch. 43, § 4,

, 68-69; Act of Apr. 24, 1880, ch. 257, § 4, 

, 232; Miss. Rev. Code § 2964 (1880); Act of Aug. 1, 1878, ch.
38, § 2, 

, 170; Act of May 5, 1880, ch. 176, § 4, 1
N.Y. Laws 296, 297; Act of Mar. 12, 1879, ch. 198, § 2, 

, 355; Act of June 12, 1879, § 2, 76 Ohio Laws 191, 192; Act
of Apr. 30, 1879, No. 31, § 2, 

, 34; Act of Apr. 9, 1880,
ch. 806, § 3, 

, 110; Act of Nov. 26, 1878,
No. 14, § 3, 

, 30; Act of Mar. 4, 1879, ch.
188, § 4, 

, 274.
36                          USA V. DUARTE


         man, woman, and child, in so far as they do
         not promptly and fully supply his demands.
         He is a thief, a robber, often a murderer, and
         always a nuisance. He does not belong to the
         working classes, but is an idler.

State v. Hogan, 

, 215 (1900). In line with
this view, the Ohio Supreme Court held that a statute that
disarmed tramps was consistent with its state constitutional
right to bear arms, 18 writing that the state right to bear arms
“was never intended as a warrant for vicious persons to carry
weapons with which to terrorize others.” 

.
Certainly not all “tramps” were “vicious” or “dangerous.”
Yet, thirteen states passed laws categorically disarming them
on the belief that tramps, as a class, presented a danger to the
community if armed.
    To be clear, these laws reflect overgeneralized and
abhorrent prejudices that would not survive legal challenges
today.     And many of these laws would likely be
unconstitutional today under other parts of the Constitution.
But these laws are reflective of American history and
tradition.   And our historical tradition reveals that
legislatures were permitted to categorically disarm those
they deemed dangerous without having to perform “an
individualized determination of dangerousness as to each

18
   See Range, 124 F.4th at 267 (Krause, J., concurring) (noting that “state
constitutional rights to bear arms . . . were understood to be coextensive
with the Second Amendment”); see also William Baude & Robert
Leider, The General-Law Right to Bear Arms, 

, 1472 (2024) (explaining that early American courts described the
right to arms codified in “the English Bill of Rights, the Second
Amendment to the U.S. Constitution, and various state constitutions as
codifying the same preexisting right”).
                            USA V. DUARTE                              37


person in a class of prohibited persons.” Jackson, 110 F.4th
at 1128; see Atkinson, 70 F.4th at 1035 (Wood, J.,
dissenting) (“[S]ince the founding, governments have been
understood to have the power to single out categories of
persons who will face total disarmament based on the danger
they pose to the political community if armed.”). “[F]our
centuries of unbroken Anglo-American history shows that
legislatures consistently disarmed entire categories of people
who were presumed to pose a special risk of misusing
firearms.” Range, 124 F.4th at 273 (Krause, J., concurring).
“Not all persons disarmed under historical precedents . . .
were violent or dangerous persons.” Jackson, 110 F.4th at
1128. Indeed, “every categorical disarmament law was
overbroad—sweeping in law-abiding people who were not
dangerous, violent, untrustworthy, or unstable—yet they
comported with the Second Amendment.” Range, 124 F.4th
at 267 (Krause, J., concurring).
    Section 922(g)(1) fits within this tradition. “Congress
obviously determined that firearms must be kept away from
persons, such as those convicted of serious crimes, who
might be expected to misuse them.” Dickerson v. New
Banner Inst., Inc., 

 (1983). And this
legislative judgment comports with our historical tradition
of regulating firearm possession by those who commit the
most serious crimes to protect the public. Supra at 26–33;
see Hunt, 123 F.4th at 708. 19 Accordingly, our historical

19
   We do not hold, as Judge Collins would, that every legislative
judgment that a group of individuals presents a “special danger of
misuse” must be rooted in history. See Concurring Op., Collins, J., at
50. However, we recognize that, in this case, Congress’s well-founded
determination that felons, as a class, present a special danger of firearm
misuse is fully supported by our tradition of regulating those who have
committed the most serious crimes.
38                        USA V. DUARTE


tradition of categorically disarming those whom the
legislature determines to represent a “special danger of
misuse” also supports the application of § 922(g)(1) to
felons, like Duarte, who assert that their felonies were non-
violent. Rahimi, 602 U.S. at 698.
                                ...
    In sum, these laws demonstrate that § 922(g)(1)’s
permanent and categorical disarmament of felons is
consistent with this Nation’s historical tradition of firearm
regulations. Legislatures have historically retained the
discretion to punish those who commit the most severe
crimes with permanent deprivations of liberty, and
legislatures could disarm on a categorical basis those who
present a “special danger of misuse” of firearms. Rahimi,
602 U.S. at 698. We agree with the Fourth and Eighth
Circuits that either historical tradition is sufficient to uphold
the application of § 922(g)(1) to all felons. See Jackson, 110
F.4th at 1127–28; Hunt, 123 F.4th at 706.
     Section 922(g)(1) “is by no means identical to these
[historical laws], but it does not need to be.” Rahimi, 602
U.S. at 698. History does not require “felony-by-felony
litigation” to support the application of § 922(g)(1).
Jackson, 110 F.4th at 1125; Hunt, 123 F.4th at 700. Instead,
consistent with our historical tradition, the government is
“empowered to regulate guns through categorical
restrictions.” Atkinson, 70 F.4th at 1038 (Wood, J.,
dissenting). 20

20
  Echoing Justice Thomas’s lone dissent in Rahimi, Judge VanDyke’s
granular historical analysis contends that historical analogues for
§ 922(g)(1) are not sufficiently similar to uphold the application of
                            USA V. DUARTE                              39


    Finally, we recognize that these historical principles
“may allow greater regulation than would an approach that
employs means-end scrutiny with respect to each individual
person who is regulated.” Jackson, 110 F.4th at 1129.
However, these are the fruits of Bruen’s constitutional test.
See id.; see also Heller v. District of Columbia, 

 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)
(“[G]overnments appear to have more flexibility and power
to impose gun regulations under a test based on text, history,
and tradition than they would under strict scrutiny.”
(emphasis omitted)).
                          IV. Conclusion
   Accordingly, § 922(g)(1) is constitutional as applied to
Duarte and other non-violent felons. We AFFIRM Duarte’s
conviction.


R. NELSON, Circuit Judge, joined by IKUTA, Circuit
Judge, concurring in the judgment:

    Because Duarte failed to raise his Second Amendment
argument before the district court, we must apply plain error
review. Applying that standard, there was no plain error by
the district court, and I would uphold Duarte’s conviction.
Because I reach this conclusion, I would not reach the merits
of Duarte’s Second Amendment challenge under de novo
review.


§ 922(g)(1) to non-violent felons. Compare Rahimi, 602 U.S. at 752–
775 (Thomas, J., dissenting), with Dissenting Op. at 85–113. Our
response is simple: “[a]s the [Supreme Court] said in Bruen, a ‘historical
twin’ is not required.” Rahimi, 602 U.S. at 701 (quoting Bruen, 597 U.S.
at 30).
40                        USA V. DUARTE


COLLINS, Circuit Judge, concurring in the judgment:

     I agree with the majority’s ultimate conclusion that
Steven Duarte’s as-applied Second Amendment challenge to
his conviction under 

(g)(1) fails on the
merits even under de novo review. 1 But I disagree with the
majority’s conclusion that, standing alone, either of the two
historical traditions proffered by the Government—viz.,
(1) the recognized traditional power of legislatures with
respect to felons, i.e., those who have committed serious
crimes; and (2) the limited historical power of legislatures,
at the time of the founding, to disarm specified categories of
persons—is sufficient to “suppl[y] a basis for the categorical
application of § 922(g)(1) to felons.” See Opin. at 26. In my
view, § 922(g)(1) survives Second Amendment scrutiny
only when these two historical traditions are “[t]aken
together.” United States v. Rahimi, 

, 698
(2024). I therefore concur only in the judgment.
                                 I
    The Second Amendment provides: “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. In District of Columbia
v. Heller, 

 (2008), the Supreme Court held that
the Second Amendment “codified a pre-existing”
“individual right to keep and bear arms” “for defensive
purposes,” even if “unconnected to militia service.” 

 (emphasis omitted). The Court
cautioned, however, that “[l]ike most rights, the right
secured by the Second Amendment is not unlimited.” 

 at

1
 Like the majority, I assume arguendo that Duarte’s challenge should
be reviewed de novo. See Opin. at 13–14.
                       USA V. DUARTE                       41


626. Rather, the Second Amendment right was “enshrined
with the scope [it] w[as] understood to have when the people
adopted [it].” 

 at 634–35.
    In New York State Rifle & Pistol Ass’n v. Bruen, 

 (2022), the Supreme Court set forth a basic framework
based in “constitutional text and history” for “defining the
character” and “outer limits” of the Second Amendment
right and for “assessing the constitutionality of a particular
regulation.” 

. The Court instructed:

       When the Second Amendment’s plain text
       covers an individual’s conduct, the
       Constitution presumptively protects that
       conduct. The government must then justify
       its regulation by demonstrating that it is
       consistent with the Nation’s historical
       tradition of firearm regulation. Only then
       may a court conclude that the individual’s
       conduct     falls   outside   the  Second
       Amendment’s “unqualified command.”

 (citation omitted). In Rahimi, the Court clarified
that the “appropriate” historically based analysis requires
“considering whether the challenged regulation is consistent
with the principles that underpin our regulatory tradition.”
602 U.S. at 692 (emphasis added). Thus, in evaluating a
challenged regulation’s consistency with our Nation’s
history of firearm regulation, “[a] court must ascertain
whether the new law is relevantly similar to laws that our
tradition is understood to permit, applying faithfully the
balance struck by the founding generation to modern
circumstances.” Id. (simplified). Accordingly, the Court
explained, “the Second Amendment permits more than just
42                      USA V. DUARTE


those regulations identical to ones that could be found in
1791,” and even “when a challenged regulation does not
precisely match its historical precursors, ‘it still may be
analogous enough to pass constitutional muster.’” Id. at
691–92 (quoting Bruen, 597 U.S. at 30).
    In determining whether a challenged law is “relevantly
similar” to particular historical examples of permissible
firearm regulations and fits within the “principles that
underpin [the] regulatory tradition” reflected in such
examples, a court must consider “[w]hy and how the
[challenged] regulation burdens the right.” Rahimi, 602 U.S.
at 692 (citation omitted). Specifically, the court must
consider “[1] whether modern and historical regulations
impose a comparable burden on the right of armed self-
defense” (i.e., the “how”); and “[2] whether that burden is
comparably justified” (i.e., the “why”). Bruen, 597 U.S. at
29 (citations omitted). The Rahimi Court further clarified
that, under the requisite historically based approach, courts
should not evaluate particular historical examples in
isolation, but should consider whether, “[t]aken together,”
they reflect a general principle that helps to define the
contours of the Second Amendment right. Rahimi, 602 U.S.
at 698 (citing two particular historical examples and holding
that, “[t]aken together,” these examples confirm the general
principle that “[w]hen an individual poses a clear threat of
physical violence to another, the threatening individual may
be disarmed” consistent with the Second Amendment).
                              II
    Applying this framework, I agree that § 922(g)(1)’s
criminal prohibition of possession of firearms by convicted
felons is consistent with the Second Amendment. In
reaching this conclusion, I think it is unnecessary to address,
                       USA V. DUARTE                       43


or to rely on, the Government’s argument that felons are not
included within the “people” whose rights are protected by
the “plain text” of the Second Amendment. Bruen, 597 U.S.
at 24.       Even assuming arguendo that felons are
presumptively covered by the literal text of the Second
Amendment, I agree that the Government has established
that § 922(g)(1) “is consistent with the Nation’s historical
tradition of firearm regulation.” Id.
                              A
     I turn first to the Government’s argument that the
historical tradition at the time of the Second Amendment’s
adoption confirms that the right guaranteed by that
Amendment does not “prohibit[] the enactment of laws
banning the possession of guns by categories of persons
thought by a legislature to present a special danger of
misuse.” Rahimi, 602 U.S. at 698 (stating that the Court did
“not suggest that the Second Amendment prohibits” such
laws and citing the page of Heller where the Court stated that
the Court did not “cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally
ill”). As I shall explain, a review of that often unsavory
history reveals a tradition of categorical legislative
disarmament that survives only in a highly constrained form.
                              1
    As Rahimi noted, English law over the centuries allowed
for the disarmament of certain categories of persons,
including “not only brigands and highwaymen but also
political opponents and disfavored religious groups.”
Rahimi, 602 U.S. at 694. In response to the perceived
abusive disarmament practices of “the Stuart Kings Charles
II and James II,” Heller, 

, Parliament in 1689
“adopted the English Bill of Rights, which guaranteed ‘that
44                         USA V. DUARTE


the Subjects which are Protestants, may have Arms for their
Defence suitable to their Conditions, and as allowed by
Law.’” Rahimi, 602 U.S. at 694 (quoting An Act Declaring
the Rights and Liberties of the Subject, and Settling the
Succession of the Crown, 1 Wm. & Mary, ch. 2, § 7, in
3 ENG. STAT. AT LARGE 441 (1689)). Because the English
Bill of Rights granted an individual right to “have Arms”
only to “Protestants” and only “as allowed by Law,” this
right by its terms “was restricted to Protestants and held only
against the Crown, but not Parliament.” Bruen, 597 U.S. at
44. Indeed, the same year that it enacted the Bill of Rights,
Parliament expressly disarmed Catholics (derisively referred
to as “Papists”), although it also permitted any Catholic men
“to retain those weapons that local justices . . . thought
necessary ‘for the Defence of his House or Person.’” See
Joyce Lee Malcolm, The Right of the People to Keep and
Bear Arms: The Common Law Tradition, 10 HASTINGS
CONST. L.Q. 285, 308–09 (1983) (citation omitted).
    Laws generally disarming Catholics also were enacted in
some of the American colonies after the French and Indian
War (1756–1763), which “was perceived by many in
[England] as a war between Protestantism and Catholicism.”
Joseph G.S. Greenlee, The Historical Justification for
Prohibiting Dangerous Persons From Possessing Arms, 20
WYO. L. REV. 249, 263 (2020). In particular, the colonial
legislatures in Pennsylvania, Maryland, and Virginia
enacted laws generally barring Catholics from possessing
firearms and ammunition. 2

2
 See 5 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801,
at 627 (James T. Mitchell & Henry Flanders eds., Wm. Stanley Ray
1898) (1759 statute providing “[t]hat all arms, military accoutrements,
                             USA V. DUARTE                                45


    Colonial American legislatures also adopted other laws
that categorically prohibited, or severely limited, the sale of
firearms and ammunition to specific classes of persons.
These included Native Americans, 3 as well as, in southern

gunpowder and ammunition of what kind soever, any papist or reputed
papist within this province hath or shall have in his house or houses . . . ,
shall be taken from such papist or reputed papist by warrant”);
52 ARCHIVES OF MARYLAND: PROCEEDINGS AND ACTS OF THE GENERAL
ASSEMBLY OF MARYLAND 1755–1756, at 454 (Baltimore, J. Hall
Pleasants ed., Md. Hist. Soc’y 1935) (1756 statute providing “that all
Arms Gunpowder and Ammunition of what kind soever any Papist or
reputed Papist within this Province hath or shall have in his House or
Houses or elsewhere shall be taken from Such Papist or reputed Papist
by Warrant”); 7 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL
THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE
IN THE YEAR 1619, at 35–39 (Richmond, William Waller Hening ed.,
Franklin Press 1820) (1756 statute providing “[t]hat no Papist, or reputed
Papist,” who refuses to take an oath of allegiance, “shall, or may have,
or keep in his house or elsewhere, or in the possession of any other
person to his use, or at his disposition, any arms, weapons, gunpowder
or ammunition”).
3
  See, e.g., ACTS OF ASSEMBLY OF THE PROVINCE OF MARYLAND, ch. 4,
§ 3 (Annapolis, Jonas Green 1763) (1763 statute providing that “it shall
not be lawful for any Person or Persons within this Province, to sell or
give to any Indian Woman or Child, any Gun-powder, Shot, or Lead,
whatsoever, nor to any Indian Man within this Province, more than the
Quantity of one Pound of Gun-powder, and Six Pounds of Shot or Lead,
at any one Time”); 6 THE STATUTES AT LARGE OF PENNSYLVANIA FROM
1682 TO 1801, at 319–20 (James T. Mitchell & Henry Flanders eds., Wm.
Stanley Ray 1899) (1763 statute providing for a fine, 39 lashes, and 12
months in the “common gaol of the county” “if any person or persons
whatsoever shall directly or indirectly give to, sell, barter or exchange
with any Indian or Indians whatsoever any guns, gunpowder, shot,
bullets, lead or other warlike stores without license from” designated
officials); ACTS AND LAWS OF HIS MAJESTY’S PROVINCE OF NEW-
HAMPSHIRE IN NEW-ENGLAND 164 (Portsmouth, Daniel Fowle & Robert
46                          USA V. DUARTE


States, slaves. 4 Moreover, during the Revolutionary War,
the Continental Congress in March 1776 “recommended to
the several assemblies, conventions, and councils or
committees of safety of the United Colonies, immediately to
cause all persons to be disarmed within their respective
colonies, who are notoriously disaffected to the cause of
America, or who have not associated, and shall refuse to
associate, to defend, by arms, these United Colonies.” See
4 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at
205 (Washington, D.C., Worthington Chauncey Ford ed.,
Library of Congress 1906). Heeding the Continental
Congress’s call, several States enacted laws disarming



Fowle 1771) (1721 statute prohibiting anyone from supplying Indians
“with any provision, cloathing, guns, powder shott, bullets, or any other
goods”); see generally 1 FRANCIS PAUL PRUCHA, THE GREAT FATHER:
THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 18–19
(Lincoln, Univ. of Neb. Press 1984).
4
  See, e.g., 4 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL
THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE
IN THE YEAR 1619, at 131 (New York, William Waller Hening ed.,
Franklin Press 1820) (1723 statute providing that “every gun, and all
power and shot, and every such club or weapon . . . found or taken in the
hands, custody, or possession of any such negro, mulatto, or Indian, shall
be taken away”); A CODIFICATION OF THE STATUTE LAW OF GEORGIA
813 (Savannah, William A. Hotchkiss ed., John M. Cooper 1845) (1770
statute providing that, with certain exceptions, “[i]t shall not be lawful
for any slave to carry and make use of firearms, or any offensive weapon
whatsoever”); 7 THE STATUTES AT LARGE OF SOUTH CAROLINA 410
(Columbia, David J. McCord ed., A.S. Johnston 1840) (1740 statute
providing that “it shall be lawful for all masters, overseers and other
persons whomsoever, to apprehend and take up any . . . negro or other
slave or slaves, met or found out of the plantation of his or their master
or mistress, . . . if he or they be armed with such offensive weapons,” and
“him or them to disarm”).
                             USA V. DUARTE                               47


loyalists or those who refused to take loyalty oaths. 5 In fact,
even before the Continental Congress issued its
recommendation, at least one State had already prohibited

5
    See 5 THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE
PROVINCE OF THE MASSACHUSETTS BAY 479–84 (Boston, Wright &
Potter Printing Co. 1886) (1776 statute providing that “every male
person above sixteen years of age . . . who shall neglect or refuse to
subscribe a printed or written declaration . . . upon being required thereto
. . . shall be disarmed, and have taken from him, in manner hereafter
directed, all such arms, ammunition and warlike implements, as, by the
strictest search, can be found in his possession or belonging to him”);
9 THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF
VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR
1619, at 281–83 (Richmond, William Waller Hening ed., J. & G.
Cochran 1821) (1777 statute providing that any male above the age of
16 who refuses to take a loyalty oath will be “disarmed”); 9 THE
STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 110–14
(James T. Mitchell & Henry Flanders eds., Wm. Stanley Ray 1903)
(1777 statute providing “[t]hat every person above the age [of 18]
refusing or neglecting to take and subscribe the said oath or affirmation
shall during the time of such neglect or refusal . . . be disarmed”);
7 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS IN NEW ENGLAND 567–68 (Providence, John Russell
Bartlett ed., A. Crawford Greene 1862) (1776 statute providing “that in
case any such suspected [loyalist] shall refuse to subscribe [to an oath],”
he will be “search[ed] for all arms, ammunition and warlike stores,”
which will be taken); THE ACTS OF ASSEMBLY OF THE STATE OF NORTH
CAROLINA 42–44 (Newbern, James Davis 1778) (1777 statute providing
“[t]hat all Persons failing or refusing to take the Oath of Allegiance, and
permitted by the County Courts . . . to remain in the State, . . . shall not
keep Guns or other Arms within his or their House”); JOURNAL OF THE
PROVINCIAL CONGRESS OF SOUTH CAROLINA, 1776, at 77–79
(Charlestown 1776) (1776 resolution providing “[t]hat all persons who
shall hereafter bear arms against, or shall be active in opposing the
measures of the Continental or Colony Congress, and upon due
conviction thereof before a majority of the Committee of the district or
parish where such persons reside, be disarmed, and at the discretion of
the said Committee taken into custody”).
48                      USA V. DUARTE


loyalists from bearing arms. See THE PUBLIC RECORDS OF
THE COLONY OF CONNECTICUT FROM MAY, 1775 TO JUNE,
1776, at 192–95 (Hartford, Charles J. Hoadly ed., Lockwood
& Brainard Co. 1890) (1775 statute pre-dating the
Continental Congress’s recommendation and requiring that
any accused loyalist who failed to show he was “not
inimical” to the colonies be “disarmed”).
                              2
    The tradition that emerges from these historical
precedents is not particularly impressive. Today, other
constitutional provisions would independently prohibit
racially or religiously based discriminatory bans on gun
ownership by Catholics, Blacks, or Native Americans (who,
since at least 1924, have been recognized as full citizens).
See U.S. CONST., amends. I, V, XIV. And, of course, slavery
was abolished by the Thirteenth Amendment. Moreover, the
Supreme Court has recognized that, in light of the
“polemical reactions by Americans” to the British
government’s efforts to “disarm the inhabitants of the most
rebellious areas” of the colonies, Heller, 

, the
Second Amendment was itself understood, at “the time of
the founding,” as having “largely eliminated governmental
authority to disarm political opponents on this side of the
Atlantic,” Rahimi, 602 U.S. at 694. Much of the actual
historical instances of legislative categorical exclusions
from firearms possession have thus either been vitiated by
other constitutional provisions or are inconsistent with what
the Second Amendment itself was understood to
accomplish. Given this shaky foundation, I cannot endorse
the majority’s view that we should extract from this
historical tradition the sweeping principle that the Second
Amendment allows a legislature to “categorically disarm[]
those whom the legislature determines to represent a ‘special
                        USA V. DUARTE                       49


danger of misuse’” or to “categorically disarm those [it]
deem[s] dangerous.” See Opin. at 36–38. The majority’s
deference to Congress’s judgments as to whom it “deem[s]”
to be unworthy of Second Amendment rights sounds like
rational basis review, see Armour v. City of Indianapolis,

 (2012) (holding that “rational basis review
requires deference to reasonable underlying legislative
judgments”), but the Heller Court squarely rejected that
standard as being inapplicable in the Second Amendment
context, see 

 n.27 (“If all that was required to
overcome the right to keep and bear arms was a rational
basis, the Second Amendment . . . would have no effect.”).
     The difficult question nonetheless remains as to what
“principles” should be understood to “underpin” this
particular “regulatory tradition,” keeping in mind that a
modern law need only be “relevantly similar to laws that our
tradition is understood to permit.” Rahimi, 602 U.S. at 692
(emphasis added) (simplified). In answering that question, I
think we must keep two contrasting considerations in mind.
On the one hand, as I have just noted, defining the principles
that emerge from the tradition of legislative categorical
disarmament at a very high level of generality—as the
majority does—could allow legislatures to creatively
fashion new categorical exclusions, thereby effectively
gutting the Amendment’s protections in a way that is at war
with its original understanding. See Rahimi, 602 U.S. at 694
(emphasizing that the Second Amendment was understood
to limit the sorts of broad disarmament measures the British
had applied); Heller, 554 U.S. at 594–95 (similar); see also
Bruen, 597 U.S. at 30 (stating that “courts should not uphold
every modern law that remotely resembles a historical
analogue, because doing so risks endorsing outliers that our
ancestors would never have accepted” (simplified)). On the
50                      USA V. DUARTE


other hand, the Supreme Court has made clear that “the
Second Amendment permits more than just those regulations
identical to ones that could be found in 1791.” Rahimi, 602
U.S. at 691–92.
    The key to steering between these two extremes, in my
view, is to remember that “history” must always remain the
“guide” when it comes to recognizing and defining the scope
of any asserted exclusions from the Second Amendment’s
reach. Bruen, 597 U.S. at 28. Therefore, to the extent that
the historical tradition described above recognizes some
measure of legislative discretion to impose disarmament on
particular categories of persons who are thought to present a
“special danger of misuse,” see Rahimi, 602 U.S. at 698, the
eligible categories of such persons must themselves be
historically based. To hold otherwise would be to say that
Second Amendment rights effectively exist only at the
sufferance of the legislature, which is directly contrary to the
Amendment’s central purpose. Accordingly, in order for a
legislature to validly disarm a given category of persons, that
category must itself be rooted in an identifiable historical
antecedent.
    The Court, however, has also made clear that the
historical antecedent only needs to be “relevantly” similar,
and the Rahimi Court held, in particular, that a historical
tradition allowing the imposition of other, more severe
penalties than disarmament on a given class of persons may
provide a sufficient analogue to support allowing such
persons to be disarmed. See Rahimi, 602 U.S. at 698–99
(citation omitted). Thus, in rejecting a Second Amendment
challenge to 

(g)(8)(C)(i), which forbids gun
possession by any person who is subject to a restraining
order that “includes a finding that he poses ‘a credible threat
to the physical safety’ of a protected person,” Rahimi, 602
                           USA V. DUARTE                             51


U.S. at 693 (quoting 

(g)(8)(C)(i)), Rahimi
held that the so-called “going armed laws” provided,
together with other laws, a relevant historical analogy, 

. The “going armed laws prohibited ‘riding or going
armed, with dangerous or unusual weapons, [to] terrify[ ] the
good people of the land,’” and the penalty for violation of
such laws was “‘forfeiture of the arms . . . and
imprisonment.’” 

 (alterations in original) (quoting
4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 149 (10th ed. 1787)). The Court held that
§ 922(g)(8)(C)(i) shared the same objective (i.e., the same
“why”) as the “going armed laws, “ because they both
“restrict[ed] gun use to mitigate demonstrated threats of
physical violence.” Id. at 698. The manner in which the
going armed laws burdened gun possession was also
sufficiently analogous, because § 922(g)(8)(C)(i) effectively
imposes “temporary disarmament” when a restraining order
is in effect, which entails a “lesser restriction” than
“imprisonment” (which was the penalty imposed by the
“going armed laws”). Id. at 699 (emphasis added). 6
    As applicable here, Rahimi thus teaches that a historical
precedent establishing that, at the time of the founding, a
discrete group of persons could categorically be subjected to
legal disabilities and penalties that were equivalent to, or
more onerous than, disarmament would provide a
“relevantly similar” “historical analogue” that would suffice

6
  The dissent obviously does not like that, in determining when a given
historical analogue is “sufficiently similar,” Rahimi applied a greater-
includes-the-lesser standard, Rahimi, 602 U.S. at 700, which the dissent
views as too indeterminate, see Dissent at 122–23 & n.26. We are, of
course, bound to follow and apply the Supreme Court’s decision in
Rahimi. See U.S. CONST., art. III, § 1 (confirming that federal courts
created by Congress are “inferior Courts” to the “one supreme Court”).
52                          USA V. DUARTE


to support a legislative determination to categorically disarm
such persons. Rahimi, 602 U.S. at 698–99 (citation omitted).
By confining any legislative categorical disarmament power
to only those historically based classes of persons who could
be subjected to equivalent or greater disabilities, this
approach avoids endorsing the sort of freewheeling
legislative power to categorically disarm that the Second
Amendment sought to eliminate. See id. at 694. And by
counting, as relevantly similar, historical precedents that
allowed categorical burdens greater than disarmament, this
approach avoids limiting the range of permissible
categorical disarmaments to only those particular categories
of persons who were specifically subject to categorical
disarmament in 1791. See id. at 691–92 (rejecting an
approach to the Second Amendment that would entail “a law
trapped in amber,” such that the only permissible regulations
would be those “identical to ones that could be found in
1791” (emphasis added)). 7 And, of course, notwithstanding
the historical precedents, a legislature may not impose
categorical disarmament on a given class of persons in a
manner that would violate other provisions of the
Constitution.
                                   B
     Against this backdrop, the question is whether there is a
relevant historically based category of persons who, at the
time of the founding, could be subjected to legal disabilities
that were equivalent to, or more severe than, § 922(g)(1)’s
lifetime prohibition on firearm possession. The answer to
that question is yes. See Heller, 554 U.S. at 626–27 & n.26

7
  The dissent, therefore, is wrong in insisting on an identical tradition,
viz., a showing that felons, “as a group, [were] categorically disarmed at
the founding.” See Dissent at 119.
                        USA V. DUARTE                       53


(describing “longstanding prohibitions on the possession of
firearms by felons and the mentally ill” as “presumptively
lawful regulatory measures”); Bruen, 597 U.S. at 38–39 n.9
(affirming the presumptive constitutionality of shall-issue
licensing regimes that “are designed to ensure only that those
bearing arms in the jurisdiction are, in fact, ‘law-abiding,
responsible citizens’” (quoting Heller, 

)); 

at 80–81 (Kavanaugh, J., joined by Roberts, C.J.,
concurring) (reiterating Heller’s statement regarding
“prohibitions on the possession of firearms by felons and the
mentally ill” (quoting Heller, 554 U.S. at 626–27)); Rahimi,
602 U.S. at 699 (same).
                              1
     The category of serious criminal offenses known as
“felonies” was well-recognized at the founding. As
explained in several influential contemporary legal treatises,
felonies were those crimes deemed to be sufficiently serious,
either at common law or by legislative enactment, so as to
warrant capital punishment and forfeiture of the convicted
individual’s estate.       See 4 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND 94–95 (Oxford,
Clarendon Press 1st ed. 1769) (hereinafter “BLACKSTONE”)
(“Felony, in the general acceptance of our English law,
compri[s]es every species of crime, which occasioned at
common law the forfeiture of lands or goods” and “for which
a capital punishment either is or was liable to be inflicted”);
1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE
CROWN 703 (E & R. Nutt & R. Gosling 1st ed. 1736)
(hereinafter “HALE”) (“Generally if an act of parliament be,
that if a man commit such an act, he shall have judgment of
life and member, this makes the offense [a] felony, and this
was ordinarily the clause used in ancient statutes.”);
1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE
54                     USA V. DUARTE


CROWN 107 (London, E. Richardson & C. Lintot 4th ed.
1762) (hereinafter “HAWKINS”) (stating that “Felonies”
included those offenses expressly denominated as such, as
well as “also those which are decreed to have or undergo
Judgment of Life and Member by any Statute”).
    The gravity of felonies was also understood as being in
contrast to the category of less serious crimes known as
misdemeanors. “In the English law[,] misdemeanour [was]
generally used in contradistinction to felony,” 5 HENRY ST.
GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH
NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF
THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF
THE COMMONWEALTH OF VIRGINIA 5 n.1 (Philadelphia,
William Young Birch & Abraham Small 1803) (hereinafter
“ST. GEORGE TUCKER”), and referred to a crime that “may
be punished, according to the degree of the . . . offense, by
fine, or imprisonment, or both,” RICHARD BURN & JOHN
BURN, A NEW LAW DICTIONARY 472 (Dublin, Brett Smith
1792) (hereinafter “BURN & BURN”); see, e.g.,
4 BLACKSTONE, supra, at 99–100, 162–63 (distinguishing
between misdemeanors and felonies).
    Influential dictionaries at the time of the Second
Amendment’s ratification reflected a similar understanding
that the term “felony” referred to the category of crime that
was most serious and that was typically punishable by death.
See, e.g., SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (London, 10th ed. 1792) (defining a “felony” as
“[a] crime denounced capital by the law”); THOMAS
SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH
LANGUAGE (London, 2d ed. 1789) (same); 1 JOHN ASH, THE
NEW AND COMPLETE DICTIONARY OF THE ENGLISH
LANGUAGE (London, 2d ed. 1795) (defining a “felony” as a
“capital crime, a very heinous offence”); WILLIAM PERRY,
                            USA V. DUARTE                               55


THE ROYAL STANDARD ENGLISH DICTIONARY 239 (London,
5th ed. 1788) (defining a “felony” as a “capital or enormous
crime”); BURN & BURN, supra, at 302 (explaining that
“felony, as it is now become a technical term, signifies in a
more restrained sense an offence of an high nature, yet it is
not limited to capital offenses only, but still retains
somewhat of this larger acceptance”); see also 1 NOAH
WEBSTER, A COMPENDIOUS DICTIONARY OF THE ENGLISH
LANGUAGE 115 (New-Haven, Sidney’s Press 1806)
(following the definition in Ash’s dictionary).
    Accordingly, it was commonly understood that “death
was ‘the standard penalty for all serious crimes’ at the time
of the founding.” Bucklew v. Precythe, 

, 129
(2019) (quoting STUART BANNER, THE DEATH PENALTY: AN
AMERICAN HISTORY 23 (Cambridge, Harvard Univ. Press
2002) (hereinafter “BANNER”)). Justice James Wilson thus
observed in a law lecture he delivered in Philadelphia in the
period of 1790–91 that “the idea of felony is now very
generally and very strongly connected with capital
punishment; so generally and so strongly, that if an act of
parliament denominates any new offence a felony, the legal
inference drawn from it is, that the offender shall be
punished for it capitally.” 3 JAMES WILSON, THE WORKS OF
THE HONOURABLE JAMES WILSON, L.L.D., 16 (Philadelphia,
Bird Wilson ed., Lorenzo Press 1804) (hereinafter
“WILSON”). 8


8
  The vacated panel opinion in this case ascribed to Justice Wilson the
view that the widespread, common understanding of “felony” was
incorrect as a technical and historical matter. See United States v.
Duarte, 

, 689, vacated and reh’g en banc granted, 

 (9th Cir. 2024); see also Dissent at 91–92 (similar). But Justice
56                         USA V. DUARTE


    The same treatises noted above also recognized the
important point that the legislature had the authority to
expand the category of “felony” to include additional serious
crimes and that the legislature could, if it wished, subject
such newly defined offenses to the punishment of death that
was typically allowed for felonies. See 4 BLACKSTONE,
supra, at 98 (“And therefore if a statute makes any new
offence felony, the law implies that it shall be punished with
death . . . , as well as with forfeiture” (emphasis added));
1 HALE, supra, at 703–04 (recognizing the legislature’s
authority to enact “new felonies”); 1 HAWKINS, supra, at 107
(similar). And that power to expand the category of felonies
was not limited to only those offenses involving violent acts.
Thus, for example, “[s]hortly after proposing the Bill of
Rights, the First Congress . . . punished forgery of United
States securities, ‘running away with a ship or vessel, or any
goods or merchandise to the value of fifty dollars,’ treason,
and murder on the high seas with the same penalty: death by
hanging.” Harmelin v. Michigan, 

, 980–81
(1991) (opinion of Scalia, J.) (original brackets omitted)
(quoting Crimes Act of 1790, 

, 114–15 (1790));
see also United States v. Tully, 

 (C.C.D.
Mass. 1812) (No. 16,545) (Story, Circuit Justice)
(explaining that “run[ning] away with [a] ship or vessel, or
any goods or merchandi[s]e to the value of fifty dollars” did
not require “personal force or violence”). Blackstone

Wilson’s challenge to the traditional conception of felony reflected his
personal belief that “[p]unishments ought unquestionably to be moderate
and mild,” 3 WILSON, supra, at 32, and as the quote above shows, “he
recognized that the prevailing view was to the contrary,” Heller, 

. Given that the purpose of originalism is “to determine the
public understanding of a legal text,” 

, Justice Wilson’s
personal disagreement with the prevailing view is less relevant to the
historical inquiry under Bruen and Rahimi.
                            USA V. DUARTE                             57


similarly observed that acts such as, inter alia, robbery,
certain thefts, fraudulent bankruptcy, forgery of coin, and
forgery of a marriage license were felonies that could
warrant death and forfeiture. 4 BLACKSTONE, supra, at 6,
156, 162–65, 238–39, 246–47. Colonial laws in the decades
directly preceding, or during, the Revolutionary War
prescribed the death penalty for a variety of felonies,
including certain instances of counterfeiting, fraud, theft,
and perjury. See BANNER, supra, at 7–8 (describing pre-
Revolution laws in New Hampshire, Connecticut,
Pennsylvania, New York, Virginia, Delaware, and South
Carolina that imposed capital punishment for non-violent
crimes such as counterfeiting, perjury, theft, embezzlement,
and burning timber). 9 And the same is true of state laws at
the time of the founding. 10


9
  See also, e.g., ACTS OF THE GENERAL ASSEMBLY OF THE PROVINCE OF
NEW-JERSEY 121 (Burlington, Samuel Allinson ed., Isaac Collins 1776)
(1741 statute imposing “the Pains of Death” for “Felons” convicted of
impersonating another during bail proceedings); THE HISTORY OF THE
PROVINCE OF NEW-YORK FROM THE FIRST DISCOVERY TO THE YEAR
1732, at 216 (London, William Smith ed. 1757) (stating that “[t]o
counterfeit . . . is Felony without Benefit of Clergy”); A DIGEST OF THE
LAWS OF MARYLAND 255–56 (Baltimore, Thomas Herty ed. 1799)
(1776–78 statutes imposing “death as a felon” for forgery and
counterfeiting); A DIGEST OF THE LAWS OF THE STATE OF GEORGIA 181
(Philadelphia, Robert Watkins & George Watkins eds. 1800) (hereinafter
“GA. DIGEST”) (1773 statute providing that a counterfeiter of “paper
money . . . shall be adjudged a felon, and shall suffer death without
benefit of clergy”).
10
   See, e.g., 1 A MANUAL OF THE LAWS OF NORTH-CAROLINA 199
(Raleigh, John Haywood ed., 2d ed. 1808) (1790 law imposing felon
status and death for horse theft); GA. DIGEST, supra, at 467–68 (1792
law imposing felon status and death for forgery); id. at 341–43 (1786 law
58                          USA V. DUARTE


    Thus, at the time of the adoption of the Second
Amendment, it was well understood that legislatures had the
authority to define and expand a category of serious crimes
and, if it chose, to subject those convicted of such crimes to
the death penalty. Inflicting death, of course, is the most
severe exercise of state power against an individual, and
disarmament—even permanent disarmament—is a “lesser
restriction” than execution. See Rahimi, 602 U.S. at 699.
Because, at the time of the founding, legislatures had a
recognized power to define serious crimes as felonies, and
to attach the penalty of death and forfeiture of estate to them,
the category of convicted “felons” is one that then could
categorically be subjected to legal disabilities that equaled or
exceeded lifetime disarmament. These two historical
traditions (of legislative categorical disarmament and
legislative power to define felonies eligible for severe


imposing felon status and death for counterfeiting); A COLLECTION OF
ALL SUCH ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA, OF A PUBLIC
OR PERMANENT NATURE, AS ARE NOW IN FORCE 260–61 (Richmond,
Augustine Davis 1794) (1792 law imposing death and felon status for
certain instances of theft, forgery, and counterfeiting); 2 LAWS OF THE
STATE OF NEW-YORK 41–42 (New-York, Thomas Greenleaf 1792)
(1788 law imposing “death as a felon” for certain instances of forgery
and counterfeiting); id. at 73–75 (1788 law imposing capital punishment
for certain thefts); 1 THE PUBLIC ACTS OF THE GENERAL ASSEMBLY OF
NORTH-CAROLINA 242 (Newbern, James Iredell & Francois-Xavier
Martin eds., Martin & Ogden 1804) (1784 law stating that those
convicted of committing forgery, counterfeiting, or fraud with respect to
tobacco shipments “shall be adjudged a felon, and suffer as in cases of
felony”); Commonwealth v. Hope, 

, 9–10 (1839) (Shaw, C.J.)
(discussing a 1784 law that “made burglary in the night time punishable
with death”); ACTS AND LAWS OF THE STATE OF CONNECTICUT, IN
AMERICA 66 (New-London, Timothy Green 1784) (statute providing that
“if any Person rise up by false Witness, wil[l]fully, and of Purpose to
take away any Man’s Life, such Offender shall be put to Death”).
                            USA V. DUARTE                              59


punishment), taken together, therefore provide a sufficient
historical analogy to satisfy the “how” requirement of
Bruen. 11 And because the death penalty, like disarmament,
is in part aimed at addressing the problem of potential future
lawlessness      by     demonstrated     lawbreakers,      see
4 BLACKSTONE, supra, at 11–12 (explaining that among the
aims of criminal punishment were to “depriv[e] the party
injuring of the power to do future mischief” and to “deter[]
others”); Joseph Story on Capital Punishment, 43 CAL. L.
REV. 76, 80 (John C. Hogan ed. 1955) (1830 essay by Justice
Story explaining that capital punishment is premised on
“cutting [a convict] off from the power of doing further
mischief” and “the deterring of others from committing like
crimes”), the “why” requirement is satisfied as well.
    For the foregoing reasons, the historical traditions
concerning legislative treatment of felons and concerning
legislative categorical disarmament, taken together, provide
a “relevantly similar” historical analogue that justifies, as


11
   I therefore disagree with the majority’s suggestion that the two
traditions, considered separately, provide alternative grounds for
rejecting Duarte’s Second Amendment challenge here. Considered
separately, neither is sufficient. As I have explained, positing a free-
floating legislative power to categorically disarm any group deemed to
be unreliable, see Opin. at 36–38 & n.19, seems at war with the original
understanding of the Second Amendment. See supra at 48–49. And the
greater-includes-the-lesser argument that disarmament is a lesser burden
than execution is also inadequate, standing alone, to uphold felon
disarmament. Stripping convicted felons of their First Amendment
rights is also less severe a consequence than death, but no one could
seriously contend that such a statute would be consistent with the First
Amendment. The crucial difference is that, in the context of the Second
Amendment (in contrast to the First Amendment), there was, at the time
of the founding, a well-recognized (if limited) legislative power to strip
specified categories of persons of their right to bear arms.
60                          USA V. DUARTE


consistent with the Second Amendment, legislation
permanently disarming the category of persons who are
convicted felons. Rahimi, 602 U.S. at 698 (citation omitted).
And because no other provision of the federal Constitution
precludes discriminating, on a categorical basis, against
convicted felons, Duarte’s constitutional challenge to
§ 922(g)(1) must be rejected.
                                   2
    In my view, none of the contrary arguments presented by
Duarte and others on this point is persuasive. In particular,
the fact that capital punishment was in practice only
“sparingly” applied in the colonies and that many felonies
were not eligible for the death penalty, see Kanter v. Barr,

 (7th Cir. 2019) (Barrett, J., dissenting)
(citation omitted), does not require a different conclusion.
As I have explained, the relevant question in assessing the
scope of a historically based legislative power to disarm
particular categories of persons is whether it was understood,
at the time of the founding, that the legislature had the
discretion to impose on a particular group, categorically,
legal burdens that were equivalent to or more onerous than
permanent disarmament. 12 That was clearly the case with

12
   Thus, while Congress and the States shifted away from capital
punishment in the decades after the founding, see BANNER, supra, at
112–43, this evolution in thought did “not alter the nature of felony” as
a serious crime worthy of harsh punishment, as St. George Tucker
recognized specifically with respect to Virginia’s decision to abolish
forfeiture and narrow the applicability of capital punishment. See 5 ST.
GEORGE TUCKER, supra, at 95 n.1. And writing in 1868, the year of the
Fourteenth Amendment’s ratification, Francis Wharton explained that at
common law, “it was held, that whenever judgment of life or member
was affixed by statute, the offence to which it was attached became
                            USA V. DUARTE                             61


respect to the category of persons who committed serious
crimes that the legislature chose to define as felonies, and the
Second Amendment is therefore not violated if a legislature
decides to impose permanent disarmament on persons who
have previously been convicted of what it deems to be a
sufficiently serious crime.
    Likewise, it does not matter that, under current Eighth
Amendment doctrine, the vast majority of felonies are not
constitutionally eligible for the death penalty. In assessing
whether a legislature at the time of the founding had the
discretion to impose burdens that exceeded disarmament in
severity on a particular category of persons, what matters is
the scope of such power as then understood, and not 21st
century notions of what is consistent with “evolving
standards of decency.” Kennedy v. Louisiana, 

,
419–21 (2008) (citation omitted). With respect to the
question presented by this case, what matters is that (1) “to
ordinary citizens in the founding generation” it was widely
understood that legislatures could define an offense to be a
felony and impose the death penalty for it, see Heller, 

; and (2) § 922(g)(1)’s categorical disarmament
of felons does not violate any other provision of the
Constitution.




felonious by implication, though the word felony was not used in the
statute,” and that “[i]n this country, with a few exceptions, the common
law classification has obtained; the principal felonies being received as
they originally existed, and their number being increased as the
exigencies of society prompted.” 1 FRANCIS WHARTON, A TREATISE ON
THE CRIMINAL LAW OF THE UNITED STATES § 2, at 2 (Philadelphia, Kay
& Brother 6th ed. 1868).
62                     USA V. DUARTE


                             III
     For the foregoing reasons, I conclude that § 922(g)(1)’s
lifetime ban on possession of a firearm or ammunition by a
convicted felon does not violate the Second Amendment and
that Duarte’s as-applied challenge fails. I therefore
respectfully concur in the judgment.


VANDYKE, Circuit Judge, with whom IKUTA and R.
NELSON, Circuit Judges, join as to Part I, concurring in the
judgment in part and dissenting in part:

    Steven Duarte was indicted for possessing a firearm
while knowing he had been previously convicted of “a crime
punishable by imprisonment for a term exceeding one year,”
in violation of 

(g)(1). Duarte was previously
convicted of five non-violent criminal offenses in California,
each of which carried a sentence of one year or more in
prison: vandalism, 

(a); felon in
possession of a firearm, 

 § 29800(a)(1); possession of a
controlled substance, 

;
and two convictions for evading a peace officer, 

. The government conceded in pre-trial
proceedings below that “none of [Duarte’s] prior convictions
are violent or involve fraud.” Duarte did not challenge his
indictment on Second Amendment grounds, as such an
argument was foreclosed by our court’s precedent in United
States v. Vongxay, 

, 1114–18 (9th Cir. 2010).
    After a jury trial, Duarte was convicted of violating
§ 922(g)(1). The Supreme Court then issued New York State
Rifle & Pistol Ass’n v. Bruen, 

 (2022), which
represented a dramatic shift from our court’s approach to the
                        USA V. DUARTE                       63


Second Amendment and upended our court’s precedent, see

 (abrogating Young v. Hawaii, 

, 773
(9th Cir. 2021) (en banc)). Bruen thus called into question
our court’s precedents holding that § 922(g)(1)’s
felon-in-possession ban is constitutional in all applications.
See Vongxay, 

; United States v. Phillips, 

, 1174–76 (9th Cir. 2016). So on appeal Duarte
brought an as-applied challenge to his conviction under the
Second Amendment, arguing that the indictment failed to
state an offense, and should thus be dismissed pursuant to
Federal Rule of Criminal Procedure 12(b)(3)(B)(v).
    A three judge-panel of our court reversed the district
court, concluding that our precedent in Vongxay was “clearly
irreconcilable” with Bruen, that Duarte was a part of “the
people” protected by the Second Amendment, and that the
government had not proved that § 922(g)(1)’s categorical
prohibition, as applied to a nonviolent felon like Duarte, “‘is
part of the historical tradition that delimits the outer bounds
of the’ Second Amendment right.” United States v. Duarte,

, 661–62 (9th Cir. 2024), reh’g en banc
granted, opinion vacated, 

 (9th Cir. 2024)
(quoting Bruen, 597 U.S. at 19). Then a majority of our
court voted to take this case en banc, vacating the panel
opinion. See Duarte, 108 F.4th at 786; see also id.
(VanDyke, J., disgrantle).
    The majority of our en banc court now holds that under
a de novo standard of review, applying § 922(g)(1) to Duarte
does not violate the Second Amendment. In so holding, the
majority makes a cavalcade of errors. First, the majority
assumes that de novo review applies to Duarte’s claims. The
court should have instead disposed of this case under plain
error review. Second, the majority concludes that our
court’s pre-Bruen precedent upholding § 922(g)(1) against
64                     USA V. DUARTE


Second Amendment challenges is not inconsistent with
intervening Supreme Court authority. But given the
paradigm change in Second Amendment jurisprudence that
Bruen effected, the majority’s conclusion is incorrect.
Third, the majority concludes that legislatures have
unilateral discretion to disarm anyone by assigning the label
“felon” to whatever conduct they desire. And fourth, the
majority reaches the broad conclusion that legislatures can
disarm entire classes of individuals, even absent a specific
showing of individual dangerousness or propensity to
violence.
                 I. Standard of Review
    The majority needed to go no further than the standard
of review to decide this case. Rather than “assum[ing]
without deciding that de novo review applies,” the majority
should have applied plain error review and affirmed Duarte’s
conviction on that ground. De novo review does not apply
here under Federal Rule of Criminal Procedure 12, as Duarte
contends. Rather, Rule 52(b)’s plain error standard of
review applies, and we should have used this opportunity
while sitting as an en banc court to correct our erroneous
exceptions to that standard.
    Duarte’s argument that de novo review should apply is
wrong. Rule 12(b) provides that certain defenses—
including certain defects in the indictment—must be raised
by motion before trial. Fed. R. Crim. P. 12(b)(3)(B). If a
defendant fails to timely make such a motion, then the
defense can later be considered only “for good cause.” Id.
12(c)(3). And Rule 52(b) provides that on appeal a court
may only consider an issue that “was not brought to the
court’s attention” below if that issue represents “[a] plain
error that affects substantial rights.” We apply the familiar
                       USA V. DUARTE                      65


four-part Olano test to determine whether an issue was
“plain error.” United States v. Olano, 

, 732–35
(1993).
     Against this backdrop, Duarte contends “that de novo
review applies once a defendant-appellant shows Rule 12
good cause.” The text of Rule 12 and Supreme Court
precedent foreclose this argument. Rule 12 doesn’t address
appellate standards of review or “explicitly announce an
exception to plain-error review.” Jones v. United States, 

, 388–89 (1999). So any argument that Rule 12 sets
aside plain error upon a showing of good cause relies on an
inference from silence. And on at least four occasions, the
Supreme Court has refused to find exceptions to plain error
based on inferences from silence. See Johnson v. United
States, 

 (1997); Jones, 527 U.S. at 388–89;
United States v. Vonn, 

 (2002); Greer v.
United States, 

, 511–12 (2021). The fact that
Rule 12 is silent about appellate standards of review isn’t a
good reason to buck that trend. Especially because Rule 12
is focused entirely on trial-court proceedings.
    Arguing otherwise, Duarte cites United States v.
Guerrero, 

 (9th Cir. 2019) (per curiam),
which       described      “Rule        12’s     good-cause
standard as displacing the plain-error standard under [Rule]
52(b).” There, our court correctly observed that plain error
review is “the default standard” for reviewing claims on
appeal that were not raised below. 

 But the court
nevertheless concluded that if a defendant can’t show good
cause for an untimely defense, his defense is “waived”
entirely and can’t be reviewed at all—not even for plain
error. 

 Indeed, that was the case in Guerrero—the panel
concluded that the defendant had not shown good cause, and
66                      USA V. DUARTE


therefore the court did not review the merits of defendant’s
arguments at all. 

.
     Guerrero did not directly address the question posed to
us here. In Guerrero, the court decided whether a defendant
who fails to show good cause when required by Rule 12 can
get any review at all. In answering that question, Guerrero
said “no”: if a defendant has not shown good cause he can
get no review at all. In that sense, Rule 12 “displaces” Rule
52(b)’s “plain error” standard. When a defendant fails to
satisfy Rule 12’s requirement to raise a pre-trial defense—or
fails to show “good cause”—then the court’s inquiry stops
at the Rule 12 analysis, and the court never even turns to the
Rule 52(b) analysis.
    The question Duarte poses is different: whether a
defendant who has shown good cause for not raising a
required Rule 12 defense should obtain de novo or plain
error review when raising the required Rule 12 defense for
the first time on appeal. Guerrero did not directly address
that. In that instance, plain error review remains “the default
standard” for reviewing new claims on appeal that were not
raised at any time below, 

, and thus the appellate
court must apply the plain error standard.
    To put it another way, Rule 12’s good cause standard is
not an alternative to Rule 52(b)’s plain error standard.
Instead, the good cause standard is an additional
“antecedent” requirement to be applied in tandem with Rule
52(b)’s plain error standard. United States v. McMillian, 

 (7th Cir. 2015). So when a defendant wants
to raise a Rule 12(b)(3) defense for the first time on appeal,
as Duarte seeks to do here, he must show both good cause
and plain error. Fed. R. Crim. P. 12(c)(3), 52(b). This is
how other circuits have interpreted the interaction between
                        USA V. DUARTE                        67


the two rules. See, e.g., McMillian, 

; United
States v. Mung, 

, 642 (8th Cir. 2021) (“[E]ven
if he could show good cause, we would review his argument
under the same plain error standard.”); United States v.
Vance, 

 (10th Cir. 2018) (applying good
cause and plain error).
     The upshot is that applying Rule 12 doesn’t make it
easier for Duarte to raise his Second Amendment arguments
for the first time on appeal. It makes it harder. Rule 12 limits
Duarte’s ability to get even plain error review—if he can’t
show good cause, he’s not entitled to any review at all.
Guerrero, 

; United States v. Wright, 

, 1026–27 (9th Cir. 2000). That is why our court has
made clear that “[p]lain error review applies on direct appeal
even where an intervening change in the law is the source of
the error.” United States v. Christensen, 

(9th Cir. 2015) (citing Johnson, 520 U.S. at 467–68).
    The government does not meaningfully dispute that
Duarte has good cause under Rule 12. Under our court’s
precedents, an intervening change in law satisfies Rule 12’s
good cause standard. See United States v. Aguilera-Rios,

 (9th Cir. 2014). In Aguilera-Rios, our
court held that there was “good cause” to consider a
defendant’s argument that had not been raised prior to trial
pursuant to Rule 12(b)(3)(B) because the defendant “would
have had no reason to challenge” the indictment at the
district court as “this Court’s caselaw … foreclosed the
argument he now makes.” 

 at 630–31. Similarly here,
Duarte did not challenge his indictment because our
precedent in Vongxay foreclosed his argument that
§ 922(g)(1) was unconstitutional. 594 F.3d at 1114–18; see
also Phillips, 

 (“[A]ssuming the propriety
of felon firearm bans—as we must under Supreme Court
68                     USA V. DUARTE


precedent and our own—there is little question that
Phillips’s predicate conviction … can constitutionally serve
as the basis for a felon ban.”). So Duarte has satisfied Rule
12’s good cause requirement, and he is not barred entirely
from raising his Second Amendment challenge in this
appeal.
    But because Duarte did not raise his Second Amendment
argument at any point below—either in a Rule 12(b) motion
or through another motion—under a plain reading of Rule
52(b) we must apply plain error review. See, e.g., United
States v. Mak, 

 (9th Cir. 2012)
(“[C]onstitutional issues not originally raised at trial are
reviewed for plain error.”).
    But that is not the end of the matter, because the Ninth
Circuit has already muddied this otherwise clear rule by
crafting atextual exceptions to the plain error standard. For
example, our court has created an exception to Rule 52(b)’s
plain error standard when a “new issue arises while the
appeal is pending because of a change in the law.” United
States v. Valdivias-Soto, 

, 721 n.5 (9th Cir.
2024) (quoting United States v. Grovo, 

, 1221
n.8 (9th Cir. 2016)); see also United States v. Flores-Payon,

 (9th Cir. 1991); United States v. Carlson,

 (9th Cir. 1990). If this exception is
satisfied, we apply de novo review. Valdivias-Soto, 112
F.4th at 721 n.5.
    This change-in-law exception would apply to Duarte’s
claim. Just as Bruen was a change in law satisfying Rule
12’s “good cause” requirement, Bruen was a sufficient
change to warrant application of our “change in the law”
exception to Rule 52(b), thus leading us to apply de novo
                             USA V. DUARTE                               69


review. See, e.g., Grovo, 

 n.8; Aguilera-
Rios, 

.
    But this exception should never have been created, and
the government has asked us to take advantage of the en banc
posture of this case to jettison it. Cf. United States v. Begay,

, 1090 n.3 (9th Cir. 2022) (en banc) (“The
government did not ask us to revisit our precedent allowing
the application of de novo review” under Rule 52(b).). I
would accept that invitation. The exception is divorced from
the text of Rule 52(b) and contradicts the Supreme Court’s
repeated rejection of exceptions to Rule 52(b). 1
    Rule 52(b) is mercifully short. It states: “[a] plain error
that affects substantial rights may be considered even though

1
  Our court has also crafted another exception to Rule 52(b)’s plain error
review in cases where the court is “presented with [1] a question that is
purely one of law and [2] where the opposing party will suffer no
prejudice as a result of the failure to raise the issue in the trial court.”
United States v. McAdory, 

, 841–42 (9th Cir. 2019)
(alterations in original) (quoting United States v. Garcia-Lopez, 

 (9th Cir. 2018)). Both prongs of this exception would also
appear to be met in this case, again leading to de novo review. Under
the majority’s chosen approach—upholding categorical bans on all
felons—Duarte’s claim raises a purely legal determination. See United
States v. Eckford, 

, 1231 (9th Cir. 2023) (noting that
application of the categorical approach is a “purely legal question”);
McAdory, 

 (“[W]hether McAdory’s prior convictions
qualify as predicate felonies under § 922(g)(1) is a purely legal
question.”). And “[t]he Government suffers no prejudice because of
[Duarte’s] failure to raise the issue to the district court—at the time,
under then-current law, the answer would have been obvious and in the
Government’s favor. On appeal, the effect of intervening law was the
subject of supplemental briefing and the main focus of oral argument so
the Government has had a full opportunity to present its views.”
McAdory, 

. This exception is also unwarranted, and we
should overrule it.
70                      USA V. DUARTE


it was not brought to the court’s attention.” Fed. R. Crim. P.
52(b). “Except in unusual circumstances, that is all there is
to it: we must review new, unpreserved arguments for plain
error.” United States v. Yijun Zhou, 

(9th Cir. 2016) (Graber, J., concurring). Our exception has
no grounding in Rule’s 52(b)’s plain text, the sine qua non
for interpreting the Federal Rules of Criminal Procedure.
See In re Pangang Grp. Co., LTD., 

 (9th
Cir. 2018) (The Federal Rules of Criminal Procedure are “in
every pertinent respect, as binding as any statute duly
enacted by Congress, and federal courts have no more
discretion to disregard [a] Rule’s mandate than they do to
disregard constitutional or statutory provisions.” (alteration
in original) (quoting Bank of Nova Scotia v. United States,

 (1988))).
     A quick look at how this exception came about shows
that it is not grounded in the text of Rule 52(b). The Ninth
Circuit’s exception materialized through an errant line in
United States v. Whitten, where our court stated that “where
a new theory or issue arises while an appeal is pending
because of a change in the law,” our court will review that
issue in the first instance. 

 (9th Cir.
1983) (first citing Hormel v. Helvering, 

, 557–
58 (1941), then citing Singleton v. Wulff, 

, 120–
21 (1976)). The court’s statement was entirely unnecessary
to its opinion, as the appellant’s argument was not based on
new law, and so the exception did not apply. 

 And the
two cases that Whitten relied upon when announcing this
rule were not relevant to the proper interpretation of Rule 52.
Neither was a criminal case, and thus neither had occasion
to apply the Federal Rules of Criminal Procedure. Hormel
was a civil taxation case, in which the Supreme Court held
that a circuit court was correct to consider intervening
                       USA V. DUARTE                      71


Supreme Court precedent in rendering its decision on an
appeal from the Board of Tax Appeals. 312 U.S. at 557–58.
Hormel did not discuss, and arguably has no bearing on, the
proper interpretation of Rule 52 of the Federal Rules of
Criminal Procedure. (Nor could it have discussed Rule 52,
as the Federal Rules of Criminal Procedure were not adopted
until several years later. See Order Adopting Federal Rules
of Criminal Procedure, 

 (1945).). And
Singleton was a civil challenge to a state statute, again
without opportunity to discuss the rules of criminal
procedure. 

. It did not discuss a new law
exception—it simply stated that “there are circumstances in
which a federal appellate court is justified in resolving an
issue not passed on below, as where the proper resolution is
beyond any doubt or where ‘injustice might otherwise
result.’” 

 at 120–21 (citations omitted). In short, in
Whitten our court conjured out of thin air an exception to
Rule 52(b)’s plain error standard that was irrelevant to that
case in any event.
    In sharp contrast to what our court did in Whitten, the
Supreme Court has repeatedly rebuffed litigants’ and lower
courts’ efforts to create such exceptions. See, e.g., United
States v. Young, 

 (1985). In Johnson, the
Court explained that courts have “no authority to make”
exceptions to Rule 52(b) “out of whole cloth.” 

; see also Puckett v. United States, 

, 135–36
(2009) (criticizing judicially crafted exceptions to Rule
52(b)); Davis v. United States, 

, 347 (2020) (per
curiam) (noting that courts should not “shield any category
of errors from plain-error review”). And the Supreme Court
frequently considers claims based upon changes in law under
a plain error standard. See, e.g., Greer, 593 U.S. at 511–12;
Henderson v. United States, 

, 270–71 (2013);
72                         USA V. DUARTE


Johnson, 

. For example, in Henderson, the
Court explained that the “plainness” of an error should be
measured at “the time of review.” 

. That is,
a change in law must be considered when determining
whether the district court plainly erred. But if a change in
the law means that plain error does not apply (as our court
says), then how could a change in law ever be considered
when deciding the plainness of an error (as the Supreme
Court commands)? It can’t. The Court’s statements flatly
contradict our exception.
    Our change-in-law exception also makes us an outlier
among the circuits. Other circuits have made clear they
“review for plain error even if the objection would have
lacked merit at the time of trial, before an intervening change
in the law.” United States v. Maez, 

, 956 (7th
Cir. 2020); see also United States v. Jobe, 

 (5th Cir. 1996) (“permit[ting] defendants to assert plain
error based on intervening changes in the law”); United
States v. David, 

, 644–45 (4th Cir. 1996)
(applying plain error review to claim based upon change in
law); United States v. Kramer, 

, 1074 & n.16
(11th Cir. 1996) (same); United States v. Retos, 

 (3d Cir. 1994) (same); United States v. Viola, 

 (2d Cir. 1994) (same); United States v. Jones, 

, 172–73 (7th Cir. 1994) (same); United States v.
Pervez, 

 (3d Cir. 1989) (same). 2


2
  Other members of our court have raised the questionable provenance
of the “pure questions of law” exception and stated that the exception
should be reconsidered. See, e.g., Zhou, 

 (Graber, J.,
concurring) (“[O]ur line of the cases permitting an exception for ‘pure
questions of law’ is contrary to Rule 52(b), Supreme Court precedent,
                             USA V. DUARTE                               73


   Because our exception has no grounding in the text of
Rule 52(b), contradicts Supreme Court holdings, and
conflicts with our sister circuits, I would overrule it here.
Then freed from following our erroneous precedent, we
should apply plain error review to Duarte’s Second
Amendment challenge.
    Applying plain error review, this is an easy case. “Plain
error” requires an error that is “clear” or “obvious,” Olano,

. The error must be so “clear-cut, so obvious,
a competent district judge should be able to avoid it without
benefit of objection.” United States v. Bain, 

 (9th Cir. 2019) (citation omitted). “An error cannot be
plain where there is no controlling authority on point and
where the most closely analogous precedent leads to
conflicting results.” United States v. Wijegoonaratna, 

 (9th Cir. 2019) (citation omitted).
    There was no plain error by the district court. Given the
split among the circuit courts over the constitutionality of
§ 922(g)(1) as applied to felons convicted of non-violent
offenses, and our pre-Bruen precedent upholding the
constitutionality of the statute, I cannot say that the district
court’s error was “clear” and “obvious.” Olano, 

; Bain, 

. Our sister circuits have reached
the same conclusion, finding no plain error when presented
with similar challenges to § 922(g)(1) after Bruen. See, e.g.,
United States v. Langston, 

, 420 (1st Cir.
2024); United States v. Caves, No. 23-6176-CR, 

, at *1 (2d Cir. Dec. 26, 2024); United States v.

and the practice of our sister circuits …. We ought to reconsider our
errant line of cases en banc, either now or in a future appropriate case.”);
United States v. Castillo, 

, 658 (9th Cir. 2023) (opinion of
Wardlaw, J.).
74                          USA V. DUARTE


Dorsey, 

, 532 (3d Cir. 2024); United States v.
Johnson, 

, 416–17 (6th Cir. 2024); United States
v. Jones, 

, 574 (5th Cir. 2023) (per curiam);
United States v. Miles, 

, 740–41 (7th Cir. 2023).
As a member of the en banc court—and after overruling our
atextual exceptions to plain error review—I would have
taken the same approach here and upheld Duarte’s
conviction for his failure to show any plain error.
     II. Merits of the Second Amendment Challenge
    Although the majority could resolve this case under plain
error review, it declines to do so. Instead, the majority
addresses the merits of Duarte’s Second Amendment
challenge under de novo review, resolving conclusively for
our circuit that § 922(g)(1) is constitutional in all of its
applications. In doing so, the majority deepens a circuit
split, intentionally taking the broadest possible path to
uphold § 922(g)(1). 3 Because the majority refuses to

3
  Compare United States v. Hunt, 

, 705, 707–08 (4th Cir.
2024) (concluding that “the possession of firearms by felons … fall[s]
outside the scope of the [Second Amendment] right as originally
understood” and that legislatures can categorically disarm classes of
people (cleaned up) (citations omitted)), United States v. Jackson, 

, 1129 (8th Cir. 2024) (concluding “that legislatures
traditionally employed status-based restrictions to disqualify categories
of persons from possessing firearms” and “Congress acted within the
historical tradition when it enacted § 922(g)(1)”), Vincent v. Bondi, 

, 1266 (10th Cir. 2025) (upholding the constitutionality of
§ 922(g)(1) “for all individuals convicted of felonies” including the
“application of § 922(g)(1) to nonviolent offenders”), and United States
v. Dubois, 

, 1293 (11th Cir. 2024), cert. granted, judgment
vacated, No. 24-5744, 

 (U.S. Jan. 13, 2025) (concluding
that Bruen did not abrogate the court’s prior precedent upholding
§ 922(g)(1) against a Second Amendment challenge), with Range v. Att’y
                            USA V. DUARTE                             75


overrule our court’s exceptions to the plain error standard, I
would begrudgingly apply them here and reach the merits of
Duarte’s Second Amendment challenge under a de novo
review. And under de novo review the majority is wrong on
the merits of Duarte’s Second Amendment claim, so I
dissent from that portion of the majority’s opinion.
     A. The Second Amendment Historical Analysis
    Before turning to the merits of Duarte’s Second
Amendment challenge, I provide a brief description of the
historical analysis the Supreme Court has directed us to
follow when evaluating the scope of the individual right to
“keep and bear” firearms. U.S. Const. amend. II. Bruen
clarified “that the Second Amendment’s text, history, and
tradition are the ‘[o]nly’ avenues to justify a firearm
regulation.” United States v. Perez-Garcia, 

,
1175 (9th Cir. 2024) (alteration in original) (quoting Bruen,
597 U.S. at 17). This involves a two-step inquiry in the face
of Second Amendment challenges. Bruen, 597 U.S. at 17.
First, we look at whether “the Second Amendment’s plain
text covers an individual’s conduct.” Id. If so, “the
Constitution presumptively protects that conduct.” Id. But
because, “‘[l]ike most rights, … ‘the right secured by the
Second Amendment is not unlimited,’” we must look to our
nation’s “‘historical tradition of firearm regulation’ to help
delineate the contours of the right.” United States v. Rahimi,

Gen. United States, 

, 222 (3d Cir. 2024) (en banc) (holding
that § 922(g)(1) was unconstitutional as applied to a non-violent felon),
United States v. Diaz, 

, 471 (5th Cir. 2024) (rejecting an
as-applied challenge because the defendant’s underlying felony was
sufficiently similar to a death-eligible felony at the founding), and
United States v. Williams, 

, 662 (6th Cir. 2024) (rejecting
an as-applied challenge because the defendant’s criminal record showed
that he was sufficiently dangerous to warrant disarmament).
76                          USA V. DUARTE

, 691 (2024) (first quoting District of Columbia
v. Heller, 

 (2008), then quoting Bruen, 597
U.S. at 17).
    It is the government’s burden to show that a challenged
regulation is consistent with our historical traditions, and it
must do so by showing that the “challenged regulation is
consistent with the principles that underpin our regulatory
tradition.” Id. at 692 (citing Bruen, 597 U.S. at 26–31). In
doing so, we consider whether the government has shown
that “the new law is ‘relevantly similar’ to laws that our
tradition is understood to permit.’” Id. (quoting Bruen, 597
U.S. at 29). The government does so by identifying
“historical precursors” supporting the challenged law’s
constitutionality. Id. “Why and how the regulation burdens
the right are central to this inquiry.” Id. (citing Bruen, 597
U.S. at 29). The challenged and historical laws are
“relevantly similar” only if they share a common “why” and
“how”: they must both (1) address a comparable problem
(the “why”) and (2) place a comparable burden on the right
holder (the “how”). Id.; Bruen, 597 U.S. at 27–30. While
the government “need not [present] a ‘dead ringer’ or a
‘historical twin’” to be successful, it must present at least an
analogous historical regulation with a sufficiently similar
“why” and “how.” Rahimi, 602 U.S. at 692 (quoting Bruen,
597 U.S. at 30).
   With that background in place, I turn to responding to the
majority’s analysis of Duarte’s Second Amendment claims. 4


4
 I do not address the majority’s conclusions at Bruen’s first step, see 597
U.S. at 17, because I agree that Duarte’s challenged conduct is covered
by the text of the Second Amendment, and that Duarte is a part of “the
People” protected by the Second Amendment’s guarantees.
                       USA V. DUARTE                       77


       B. The Status of our Pre-Bruen Precedent
    At the outset, the majority incorrectly concludes that
Bruen did not affect the holding or analysis of our court’s
precedent rejecting Second Amendment challenges to
§ 922(g)(1). See Vongxay, 594 F.3d at 1114–18. Bruen
abrogated that precedent. See 597 U.S. at 15. While sitting
as an en banc court, we are not bound by our prior circuit
precedent, nor are three-judge panels bound by our circuit
precedent when the holding or reasoning of an intervening
Supreme Court or en banc case is “clearly irreconcilable”
with our prior decision. Miller v. Gammie, 

 (9th Cir. 2003) (en banc). When the “Supreme Court
decisions have taken an approach that is fundamentally
inconsistent with the reasoning of our earlier circuit
authority,” 

, that alone “[i]s enough to render them
‘clearly irreconcilable’” with one another, Langere v.
Verizon Wireless Servs., LLC, 

, 1121 (9th Cir.
2020) (citation omitted).
   The Second Amendment regime courts are now
supposed to operate under is very different than the law we
applied when our court upheld § 922(g)(1) in Vongxay.
Bruen explicitly rejected the analytical framework that our
court, and many others, had applied when addressing Second
Amendment challenges, see 597 U.S. at 19 (rejecting our
court’s former “two-step approach” as “one step too many,”
and rejecting “applying means-end scrutiny in the Second
Amendment context”).
    Our old test bears no relationship to Bruen’s test, which
looks for “consisten[cy] with the principles that underpin our
regulatory tradition,” Rahimi, 602 U.S. at 692, and compares
the “how and why” of the founding generation’s regulations
78                      USA V. DUARTE


to the “how and why” of the modern regulation, Bruen, 597
U.S. at 29.
    Vongxay, and the cases it relied upon, did not follow
anything resembling Bruen’s text-history-and-tradition
“mode of analysis.” Miller, 

 (“[L]ower
courts a[re] bound not only by the holdings of higher courts’
decisions but also by their ‘mode of analysis.’” (quoting
Antonin Scalia, The Rule of Law as a Law of Rules, 

, 1177 (1989))). Rather, Vongxay relied on
a handful of prior circuit court decisions, then turned to
Heller’s passing footnote referring to “longstanding” felon
firearm bans as “presumptively lawful.” See Phillips, 

 (“[W]e held in United States v. Vongxay, that
‘felons are categorically different from the individuals who
have a fundamental right to bear arms,’” “based on th[e]
language” in Heller that “‘longstanding prohibitions on the
possession of firearms by felons’ … were ‘presumptively
lawful’” (citations omitted)). In short, Vongxay wholly
omitted Bruen’s two-step methodology, and thus its
reasoning is “clearly irreconcilable” with Bruen’s “mode of
analysis” for analyzing Second Amendment challenges.
Miller, 

.
    To be sure, our sister circuits are split on the question of
whether Bruen abrogated their pre-Bruen precedent
regarding § 922(g)(1). Compare Dubois, 94 F.4th at 1293
(concluding Bruen did not abrogate circuit prior precedent
upholding § 922(g)(1)), and Vincent v. Garland, 

, 1200–02 (10th Cir. 2023) (same), with Range, 124
F.4th at 225 (concluding that Bruen abrogated circuit
precedent), Diaz, 116 F.4th at 471 (same), Williams, 113
F.4th at 645–46 (same), and Atkinson v. Garland, 

, 1022 (7th Cir. 2023) (“We must undertake the text-
and-history inquiry the Court so plainly announced and
                            USA V. DUARTE                               79


expounded upon at great length.”). But our court applies a
more “flexible approach” than other circuits when
determining whether circuit precedent has been abrogated by
intervening authority. Miller, 

. In contrast
with the more restrictive standards our sister circuits require,
to abrogate a prior decision of ours the intervening authority
need only be “closely related” to the prior circuit precedent
and need not “expressly overrule” its holding. 

 5
    Our en banc court here should have made clear that our
pre-Bruen decisions applying a mode of analysis other than
Bruen’s text-history-and-tradition approach are no longer
binding upon future panels of our court. Instead, the
majority further bakes in our outdated and erroneous
precedent.
     C. Reliance on Heller’s “Presumptively Lawful”
                          Footnote
   The majority’s continued reliance on Vongxay’s
analytical approach is emblematic of another problem with
Second Amendment jurisprudence in this Circuit: using
“cherrypicked language” that is “mis- and over-applied from
the Court’s prior precedents” to uphold any firearms
regulation that comes before it. Duarte, 108 F.4th at 788
(VanDyke, J., disgrantle).      “[J]udges who are more


5
  Compare, e.g., Dubois, 94 F.4th at 1293 (“An intervening Supreme
Court decision abrogates our precedent only if the intervening decision
is both ‘clearly on point’ and ‘clearly contrary to’ our earlier decision….
To abrogate a prior-panel precedent, ‘the later Supreme Court decision
must “demolish” and “eviscerate” each of its “fundamental props.”’”
(citations omitted)); Vincent, 80 F.4th at 1201 (“[W]e can’t jettison [our
precedent] just because it might have been undermined in Bruen. We
must instead determine whether Bruen indisputably and pellucidly
abrogated [our precedent].” (citations omitted)).
80                     USA V. DUARTE


interested in sidestepping than following the Court’s Second
Amendment precedent will latch onto phrases like
‘presumptively lawful’ … while conveniently overlooking
such bothersome details like the government’s burden of
supplying relevantly similar historical analogues.” Id. That
is exactly what Vongxay did, and what the majority here
continues to do.
    The majority extracts from Heller’s footnoted statement
that felon-in-possession laws are “presumptively lawful” the
apparent per se rule that all felon-in-possession laws are
constitutional, warranting “the categorical application of
§ 922(g)(1) to felons.”        “[A]pplying Heller’s dicta
uncritically,” as our court continues to do, is “at odds with
Heller itself, which stated courts would need to ‘expound
upon the historical justifications’ for firearm-possession
restrictions when the need arose.” Williams, 113 F.4th at
648 (quoting Heller, 

). Nevertheless, the
majority doubles-down on our pre-Bruen precedent “to
foreclose Second Amendment challenges to § 922(g)(1),
regardless of whether an underlying felony is violent or not.”
But “[m]aking the leap from presumptively constitutional to
always constitutional … is too much for that overused line
to bear, no matter how you read it.” United States v.
Jackson, 

, 658 (8th Cir. 2024) (Stras, J.,
dissental).
    Heller speaks only in terms of a presumption. A
presumption must be defeasible. United States v. Williams,

 (7th Cir. 2010) (“‘[P]resumptively
lawful’ ... by implication[] means that there must exist the
possibility that the ban could be unconstitutional in the face
of an as-applied challenge.”). So the Court’s statement that
felon-in-possession laws are only presumptively lawful
implies that felon-in-possession laws must be unlawful in at
                        USA V. DUARTE                       81


least some instances. See Jackson, 121 F.4th at 658 (Stras,
J., dissental). And it is especially unusual to put such weight
on Heller’s dicta that felon-in-possession laws are
presumptively constitutional, because it is black-letter law
that all legislation is entitled to a presumption of
constitutionality. See, e.g., Davis v. Dep’t of Lab. & Indus.
of Washington, 

 (1942); O’Gorman &
Young, Inc. v. Hartford Fire Ins. Co., 

, 257–58
(1931).      But no one thinks that that longstanding
presumption gives statutes passed by Congress blanket
immunity from searching constitutional scrutiny.
     Stretching the language of Heller’s “presumption”
beyond what it can bear is par for the course on our court.
The majority’s holding continues a trend in our court’s cases
relying on Heller’s “presumptively lawful” footnote to
sidestep the otherwise governing standard. 554 U.S. at 627
& n.26. You might call it our court’s Second Amendment
fiat-by-footnote. In Heller, the court identified at least four
types of regulations that are presumptively lawful:

       Although we do not undertake an exhaustive
       historical analysis today of the full scope of
       the Second Amendment, nothing in our
       opinion should be taken to cast doubt on
       longstanding prohibitions on [1] the
       possession of firearms by felons and [2] the
       mentally ill, or [3] laws forbidding the
       carrying of firearms in sensitive places such
       as schools and government buildings, or
       [4] laws     imposing      conditions     and
82                     USA V. DUARTE


       qualifications on the commercial sale of
       arms.

Id. at 626–27. Our court has taken each of these
“presumptively lawful” regulations outside of the “heavy
burden” that Bruen imposes on the government to justify its
regulations. United States v. Connelly, 

, 274
(5th Cir. 2024).
    Consider “sensitive places” prohibitions. Heller, 

; see generally David B. Kopel & Joseph G.S.
Greenlee, The “Sensitive Places” Doctrine: Locational
Limits on the Right to Bear Arms, 13 Charleston L. Rev. 203
(2018). Our court recently upheld certain “sensitive places”
prohibitions that Hawaii and California enacted. See
Wolford v. Lopez, 

, 1002–04 (9th Cir. 2024);
see also Wolford v. Lopez, 

, 1232 (9th Cir.
2025) (VanDyke, J., dissental) (detailing errors in the panel
opinion). Relying in part on Heller’s “presumptively
lawful” footnote, the Wolford panel concluded that it could
apply a “more lenient standard … when analyzing the
regulation of firearms at ‘sensitive places.’” Wolford, 116
F.4th at 978–79. In other words, our court held the
government to a lower standard—let’s call it Bruen-lite—
when identifying “relevantly similar” historical analogues
for sensitive places laws.
    Or look at the way that our court has treated laws that
impose “conditions and qualifications on the commercial
sale of arms,” another of Heller’s “presumptively lawful”
categories. 554 U.S. at 626–27 & n.26. In B & L
Productions, Inc. v. Newsom, our court held that commercial
restrictions presumptively fall outside the plain text of the
Second Amendment altogether. 

, 119 (9th Cir.
2024). Notwithstanding the paradigm shift in Second
                        USA V. DUARTE                       83


Amendment law that Bruen announced, the B & L
Productions panel adopted the exact same approach our
court had taken years before, which concluded that “Heller’s
assurance that laws imposing conditions and qualifications
on the commercial sale of firearms are presumptively lawful
makes us skeptical … that retail establishments can assert an
independent, freestanding right to sell firearms under the
Second Amendment.” Teixeira v. Cnty. of Alameda, 

 (9th Cir. 2017) (en banc); B & L Prods., 104
F.4th at 119 (“the approach we took in Teixeira ... remains
appropriate”).
     And our court upheld § 922(g)(4)’s prohibition on the
possession of firearms by those who are mentally ill in Mai
v. United States, 

, 1121 (9th Cir. 2020). There,
the court all but held that § 922(g)(4) did not burden Second
Amendment rights based upon Heller’s presumptively
lawful language.        See id. at 1114 (reiterating the
government’s argument that “§ 922(g)(4) does not burden
Second Amendment rights” because “[t]he Supreme Court
identified as presumptively lawful” the prohibitions on the
possession of firearms by the mentally ill) (citation omitted);
Mai v. United States, 

, 1098 (9th Cir. 2020)
(VanDyke, J., dissental) (disagreeing with the panel’s
conclusion that “Mr. Mai’s long-ago mental illness forever
excludes him from the community of ‘law-abiding,
responsible citizens’ under the Second Amendment (i.e.,
once mentally ill, always so)”); 

 (Bumatay, J.,
dissental) (“Heller’s observations about ‘presumptively
lawful regulatory measures’ does not change this analysis.
Heller’s reference to firearm prohibitions for the ‘mentally
ill’ as being ‘presumptively lawful,’ appl[ies] to those who
are presently mentally ill.” (citations omitted)).
84                      USA V. DUARTE


    Finally, the majority here relies on Heller’s
“presumptively lawful” language once more to adopt a per
se rule upholding felon-in-possession bans. That is just as
wrong as each of our court’s earlier decisions relying on
Heller’s “presumption” footnote to sidestep Bruen’s
text-history-and-tradition test.
    The Supreme Court has provided one test for assessing
the constitutionality of regulations on the right to bear arms.
“[T]he Second Amendment’s text, history, and tradition are
the ‘[o]nly’ avenues to justify a firearm regulation.”
Perez-Garcia, 96 F.4th at 1175 (alteration in original)
(quoting Bruen, 597 U.S. at 17)). Our court makes a
“category error in its analysis” when it concludes that such
regulations are not “subject to [the full scope of] Bruen’s
test.” Reese v. A.T.F., 

, 590 n.2 (5th Cir. 2025).
By watering down this test, or sidestepping it completely,
our court “place[s] more weight on these passing references
than the Court itself did.” Kanter v. Barr, 

(7th Cir. 2019) (citation omitted). “Nothing allows us to
sidestep Bruen in the way” the majority proposes. Atkinson,
70 F.4th at 1022; see also id. (“We must undertake the text-
and-history inquiry the Court so plainly announced and
expounded upon at great length.”).
    The majority’s approach here confirms once more that
Second Amendment jurisprudence in our circuit is not
principally one of reason or logic. It does not actually rely
on general historical “principles,” distilled from history and
tradition, or the holdings and reasoning of Supreme Court
precedent. Rather, ours is a jurisprudence built on
throwaway lines and footnotes. See United States v.
Perez-Garcia, 

, 1008 (9th Cir. 2024)
(VanDyke, J., dissental); Duarte, 108 F.4th at 788
(VanDyke, J., disgrantle). We disregard holdings to
                        USA V. DUARTE                       85


embrace dictum.         And we set aside a coherent
methodological approach for ad hoc exceptions justifying
our court majority’s policy preferences. The Supreme Court
has demanded better of us—as does the Constitution—for
“the right to keep and bear arms is among the ‘fundamental
rights necessary to our system of ordered liberty.’” Rahimi,
602 U.S. at 690 (quoting McDonald, 

); see
also 

 (“As a leading and early proponent of emancipation
observed, ‘Disarm a community and you rob them of the
means of defending life. Take away their weapons of
defense and you take away the inalienable right of defending
liberty.’” (quoting Cong. Globe, 40th Cong., 2d Sess., 1967
(1868) (statement of Rep. Stevens))).
     D. The Greater Includes the Lesser Rationale
    The majority purports to derive from the historical record
the “regulatory principle” that “legislatures may disarm
those who have committed the most serious crimes.” In
doing so, the majority endorses the government’s argument
that because, in 1791, “the greater punishment of death and
estate forfeiture was permissible to punish felons, [the]
lesser restriction of permanent disarmament is also
permissible.” The majority’s argument breaks down in at
least three respects. First, the three historical sources the
majority cites are insufficient to show an “unbroken
understanding that the legislature could permanently disarm
those who committed the most serious crimes consistent
with the Second Amendment.” Second, capital punishment
and estate forfeiture were imposed as punishment for only a
few felonies. The death penalty was not, as the majority
contends, “‘the standard penalty for all serious crimes’ at the
time of the founding.” And third, the majority’s argument
presupposes that the felonies at the founding were equivalent
86                     USA V. DUARTE


to felonies today. But that’s obviously false; many felonies
today bear little resemblance to felonies at the founding.
              1. Historical Disarmaments
    The majority’s evidence of the “unbroken understanding
that the legislature could permanently disarm those who
committed the most serious crimes” is just one Colonial-era
English enactment and two draft proposals from the
Founding-era and succeeding decades. The paucity of that
historical record speaks for itself. Bruen doubted that three
Colonial-era laws were enough to show a historical tradition.
597 U.S. at 46 (“For starters, we doubt that three colonial
regulations could suffice to show a tradition of public-carry
regulation.”). The historical evidence the majority musters
is even sparser than that which Bruen found inadequate. But
even beyond that, each of the historical analogues the
majority points to also fails as a historical analogue on its
own terms.
    First, the majority points to the 1689 English Bill of
Rights, characterized as the “predecessor to our Second
Amendment.” This Bill of Rights provided “[t]hat the
Subjects which are Protestants may have Arms for their
Defence suitable to their Conditions and as allowed by law.”
Bill of Rights 1688, 1 W. & M. Sess. 2 c. 2, sch. 1. (Eng.);
see also 6 William Searle Holdsworth, A History of English
Law 241 (1924) (explaining that Parliament added this
provision to the Bill of Rights in response to James II’s
refusal to allow Protestants the right to carry arms). But
notwithstanding the ostensible limitation of this right “as
allowed by law,” “[t]here is no evidence that any Protestants
were excluded from the 1689 arms right for being
insufficiently loyal or law-abiding.” See Joseph G.S.
Greenlee, Disarming the Dangerous: The American
                       USA V. DUARTE                       87


Tradition of Firearm Prohibitions, 

, 23
(2024) [hereinafter Greenlee, Disarming the Dangerous];
see also 5 William Blackstone, Commentaries 57 (St.
George Tucker ed. 1803) [hereinafter Blackstone,
Commentaries] (“[T]hese laws are seldom exerted to their
utmost rigour” and “if they were, it would be very difficult
to excuse them.”). And there were multiple “statements
made during debates in Parliament that suggest all
Protestants were protected by the right, regardless of their
condition.” Greenlee, Disarming the Dangerous at 23; see
also 5 Cobbett’s Parliamentary History of England 183
(London, T.C. Hansard 1809) (“If you find not a way to
convict them [for being Catholic], you cannot disarm them.”
(statement of W. Wogan)); 9 Debates of the House of
Commons, From the Year 1667 To the Year 1694, at 170
(London, D. Henry, R. Cave & J. Emonson 1763) (“[B]eing
not convicted [for being Catholic] they will say they are not
concerned ... and not one man will ... deliver their arms.”
(statement of Speaker H. Powle)).
    The founders also rejected the limitations on the right to
bear arms set out in the 1689 English Bill of Rights.
Greenlee, Disarming the Dangerous at 25; see also Bridges
v. California, 

 (1941) (“[T]o assume that
English common law in this field became ours is to deny the
generally accepted historical belief that ‘one of the objects
of the Revolution was to get rid of the English common
law….’” (citations omitted)). The right codified in the 1689
English Bill of Rights had “matured” and expanded by the
founding, Bruen, 597 U.S. at 45, with Americans
“swe[eping] aside” England’s “as allowed by law”
limitation. Joyce Lee Malcolm, To Keep and Bear Arms
136–37, 162 (1994). When James Madison introduced the
Second Amendment in Congress, he criticized the
88                      USA V. DUARTE


limitations on the right to bear arms in the English Bill of
Rights, including that it only protected the right of
Protestants. See James Madison, Notes for speech in
Congress supporting Amendments (June 8, 1789) (reprinted
in 12 The Papers of James Madison 193–94 (Charles F.
Hobson et al. eds., 1979)). Thomas Cooley explained how
the Second Amendment “was adopted with some
modification and enlargement from the English Bill of
Rights of 1688.” Thomas M. Cooley, The General
Principles of Constitutional Law in the United States of
America 270 (Boston, Little, Brown & Co. 1880). And
William Rawle’s “influential treatise” on the Constitution,
Heller, 554 U.S. at 607, contrasted the “cautiously
described” English Bill of Rights—as it was “secured to
protestant subjects only” and only protected “bearing arms
for their defence, ‘suitable to their conditions, and as allowed
by law’”—with the more expansive American right, William
Rawle, A View of The Constitution of The United States of
America 126 (Philadelphia, Philip H. Nicklin ed. 1829). In
sum, the 1689 English Bill of Rights does not support the
majority’s purported principle because it was not actually
used to disarm those who had committed crimes and the
founders explicitly departed from its limitations on the right
to bear arms found in our Bill of Rights. See also Bruen,
597 U.S. at 35 (“[C]ourts must be careful when assessing
evidence concerning English common-law rights.... English
common-law practices ... cannot be indiscriminately
attributed to the Framers of our own Constitution.”).
    Second, the majority emphasizes that “[i]n
Pennsylvania, Anti-Federalist delegates—who were
adamant supporters of a declaration of fundamental rights—
proposed that the people should have a right to bear arms
‘unless for crimes committed, or real danger of public injury
                         USA V. DUARTE                        89


from individuals.’” But that proposal was just that: a
proposal. It went nowhere. “[N]one of the relevant limiting
language made its way into the Second Amendment” from
this convention, nor from any of the other state ratifying
conventions that the government points to. Kanter, 

 (Barrett, J., dissenting); see also 1 Jonathan Elliot, The
Debates in The Several State Conventions on The Adoption
of The Federal Constitution 326 (Washington, Jonathan
Elliot 1836) (New Hampshire proposal); 2 Bernard
Schwartz, The Bill of Rights: A Documentary History 675,
681 (1971) (Massachusetts proposal). The Pennsylvania
minority proposal failed to even obtain a majority of its own
convention. Kanter, 

 (Barrett, J., dissenting).
This failed proposal is not enough to support the permanent
disarmament of all felons. And this proposal was not “about
felons in particular or even criminals in general,” but rather
those whose conduct “threatened violence and the risk of
public injury.” 

. “If ‘crimes committed’ refers only
to a subset of crimes, that subset must be defined; using ‘real
danger of public injury’ to draw the line is both internally
coherent and consistent with founding-era practice.” 

     Third and finally, the majority cites a draft criminal code
that Edward Livingston proposed for the state of Louisiana.
As the majority describes it, this code would have abolished
the death penalty for certain crimes, replacing it instead with
“permanent forfeiture of certain rights, including the ‘right
of bearing arms.’” It bears repeating that this too was a draft
criminal code—as with Pennsylvania’s convention proposal,
the code was never adopted. Given the minimal probative
value of such a draft code, it is no surprise that the
government never raised it in its briefing to this court.
Instead, the majority errs by bringing in historical evidence
of its own volition. See Baird v. Bonta, 

, 1041
90                      USA V. DUARTE


(9th Cir. 2023) (“A district court should not try to help the
government carry its burden by sifting historical materials to
find an analogue.” (internal alterations and citation
omitted)). As the Supreme Court has made clear, it is the
government’s burden to identify historical analogues
supporting the government’s regulations, not the court’s.
See Rahimi, 602 U.S. at 691 (“[W]hen the Government
regulates arms-bearing conduct, ... it bears the burden to
‘justify its regulation.’” (citation omitted)); Bruen, 597 U.S.
at 24 (“The government must ... justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.”).
    In sum, the majority fails to point to any historical
evidence that actually supports its supposed “unbroken
understanding” of permanently disarming felons. The
government and the majority thus fail to situate § 922(g)(1)
in a “historical tradition of firearm regulation.” Bruen, 597
U.S. at 17. It is perhaps unsurprising, then, that the majority
attempts to compensate by pointing to a different analog—
the purported practice of consistently executing felons at the
founding.
     2. The Majority’s Cold, Dead Fingers Rationale
    The majority’s death-equals-disarmament argument is
no more persuasive than its historical evidence for disarming
felons. The majority contends that dead people can’t keep
or bear arms, and “death was ‘the standard penalty for all
serious crimes’ at the time of the founding.’” But the
historical support for that statement is “shaky.” Kanter, 

 (Barrett, J., dissenting). During the colonial era,
through the founding, and in the succeeding years, the death
penalty was steadily divorced from serious crimes.
                       USA V. DUARTE                       91


    “[E]ven before the Founding, the link between felonies
and capital punishment was frayed.” Folajtar v. Attorney
General, 

, 920 (3d Cir. 2020) (Bibas, J.,
dissenting). In Blackstone’s telling, at common law not all
felonies faced capital punishment; it was only certain
felonies “according to the degree of guilt,” “to which capital
or other punishment may be superadded.” 5 Blackstone,
Commentaries, 95; see also 

 (“Felony may be
without inflicting capital punishment … and it is possible
that capital punishments may be inflicted, and yet the
offence be no felony ….”). The American colonies further
limited the scope of crimes eligible for the death penalty
relative to the English Common Law. Folajtar, 980 F.3d at
920 (Bibas, J., dissenting).
    And even for those crimes that were capital, “[t]he
colonies carried out the death penalty ‘pretty sparingly,’ and
‘[p]roperty crimes were, on the whole, not capital.’” Id.
(quoting Lawrence M. Friedman, Crime and Punishment in
American History 42 (1993)). “Colonial Pennsylvania, for
instance, on average sentenced fewer than two people per
year to die and executed only one of those two per year.” Id.
(citation omitted). And in 1682, Pennsylvania “limited
imposition of the death penalty to ‘willful murder.’” June
Carbone, Seeing Through the Emperor’s New Clothes:
Rediscovery of Basic Principles in the Administration of
Bail, 

, 531 (1983) [hereinafter
Carbone, Principles in Bail] (quoting 2 Charles P. Keith,
Chronicles of Pennsylvania 1688–1748, at 586 (1917)). In
short, “[a]t the common law, few felonies, indeed, were
punished with death.” James Wilson, Lectures on Law, in
2 Collected Works of James Wilson 242 (Kermit L. Hall &
Mark David Hall eds., 2007) [hereinafter, Wilson, Lectures];
see also 1 Wilson, Lectures on Law 343 (“How few are the
92                          USA V. DUARTE


crimes—how few are the capital crimes, known to the laws
of the United States, compared with those known to the laws
of England!”).
    The relationship between the death penalty and felonies
continued to diverge at the founding. “[M]any states were
moving away from making felonies … punishable by death
in America.” Range, 124 F.4th at 227. Founder James
Wilson explained that while, in theory, “the idea of [a]
felony [wa]s very generally ... connected with capital
punishment,” in practice, this “inference[] ... [wa]s by no
means entitled the merit of critical accuracy.” 2 Wilson,
Lectures 242. And James Madison explained in The
Federalist that the term “felony is a term of loose
signification, even in the common law of England.” The
Federalist No. 42, at 234 (Clinton Rossiter ed., 1961) (James
Madison). What defined a felony “is not precisely the same
in any two of the States; and varies in each with every
revision of its criminal laws.” Id. As a result, there were
“many felonies, not one punished with forfeiture of estate,
and but a very few with death.” 6 6 Nathan Dane, A General

6
  See, e.g., Act for the Punishment of Diverse Capital and Other Felonies,
in Acts and Laws of the State of Connecticut in America 182–83
(Hartford, Hudson & Goodwin 1796) (listing various “felonies” but
punishing only some capitally (e.g., bestiality, arson, bearing false
witness); Act for the Punishment of Certain Atrocious Crimes and
Felonies, in Acts and Laws of the State of Connecticut in America, supra,
at 183–86 (listing various “felonies” that were punished with a term of
imprisonment (e.g., forgery, counterfeiting, attempted rape, horse theft,
robbery)); General Laws of Pennsylvania, from the Year 1700 to April
22, 1846, at 155 (Philadelphia, T. & J.W. Johnson 1847) (abolishing
capital punishment for all crimes except first-degree murder); An Act to
Prevent the Stealing and Taking away of Boats and Canoes, in 1 The
Laws of the Province of South Carolina 49 (Nicholas Trott, ed. 1736)
                           USA V. DUARTE                             93


Abridgment and Digest of American Law 715 (Boston,
Cummings, Hilliard & Co. 1824).
    In the years immediately after the Founding, the
relationship became even more attenuated.                  See
Perez-Garcia, 1115 F.4th at 1018–19 (VanDyke, J.,
dissental) (detailing this relationship). For example, of more
than twenty crimes the first Congress defined in The Crimes
Act of 1790, only seven were punishable by death. See Act
for the Punishment of Certain Crimes Against the United
States, ch. 9, §§ 1–28, 

, 112–18 (1790).
Manslaughter, perjury, mayhem (the intentional maiming of
another person), and larceny were all non-capital offenses,
punished with imprisonment for a term of years. 

 §§ 7,
13, 16, 18. And even for the “nonviolent crimes such as
forgery and horse theft” that the majority points to, “by the
early Republic, many states assigned lesser punishments.”
Range, 124 F.4th at 231.
     After the founding, a movement also began to narrow the
list of capital crimes to “murder alone, or murder and rape in
some states.” Carbone, Principles in Bail at 535. “By 1798,

(punishing boat theft with “corporal punishment” and a fine “if the
Matter of Fact be a Felony”); 1793 Act Respecting the Punishment of
Criminals, in 2 The Laws of Maryland chap. LVII, § 10 (William Kilty
ed. 1800) (empowering justices of the court to, “in their discretion,”
sentence males convicted of “[a]ny felony” “to serve and labour for any
time[] ... not exceeding seven years”); 1801 Act Declaring the Crimes
Punishable with Death or with Imprisonment in the State Prison, in 1 The
Laws of the State of New York 254 (Albany, Charles R. & George
Webster 1802) (committing any person “duly convicted ... of any
felony,” with certain enumerated exceptions, to a “term [of
imprisonment] not more than fourteen years”); see also 2 Timothy
Cunningham, A New and Complete Law Dictionary, Felony (2d ed.
1771) (describing punishments for various felonies as ranging from
death and estate forfeiture to imprisonment and hard labor).
94                     USA V. DUARTE


five states had abolished it for all crimes besides murder.”
Mugambi Jouet, Death Penalty Abolitionism from the
Enlightenment to Modernity, 

, 69
(2023). “Within two decades of gaining independence from
England, the states of the Union had replaced execution with
incarceration as the punishment for all but a few crimes.”
Will Tress, Unintended Collateral Consequences: Defining
Felony in the Early American Republic, 

, 468 (2009). Michigan abolished the death penalty for
all crimes but treason in 1846, and Rhode Island and
Wisconsin each abolished the death penalty entirely between
1852 and 1853. See John D. Bessler, The Death Penalty in
Decline: From Colonial America to the Present, 

, 258 (2014); Franklin E. Zimring & Gordon
Hawkins, Capital Punishment and the American Agenda 28
(1986). Indeed, Edward Livingston’s proposed criminal
code for Louisiana, on which the majority stakes much of its
historical argument, was part of this movement to eliminate
the death penalty as part of the criminal law. So the
historical evidence belies the majority’s claim that “death
was ‘the standard penalty for all serious crimes’ at the time
of the founding.”
    Absent the relationship at the founding between the
historical punishments for felonies and § 922(g)(1), the
majority’s rationale crumbles. To get around the absence of
historical support, the majority contends that “history need
not show that every felony was punished with death and
estate forfeiture....   Instead, the exposure to capital
punishment and estate forfeiture is sufficient to demonstrate
that the founding generation would view § 922(g)(1)’s
permanent disarmament as consistent with the Second
Amendment.”        But “[t]he Founding-era practice of
punishing some nonviolent crimes with death does not
                        USA V. DUARTE                        95


suggest that the particular (and distinct) punishment at issue
here—de facto lifetime disarmament for all felonies and
felony-equivalent misdemeanors—is rooted in our Nation’s
history and tradition.” Range, 124 F.4th at 231. So “the
historical evidence belies the [majority’s] necessary link in
its analysis.” Perez-Garcia, 1115 F.4th at 1018 (VanDyke,
J., dissental). The “history confirms that the basis for the
permanent and pervasive loss of all rights cannot be tied
generally to one’s status as a convicted felon or to the
uniform severity of punishment that befell the class.”
Kanter, 

 (Barrett, J., dissenting).
     Moreover, even putting aside the ahistorical foundation
for the majority’s attempted analogy, its death-equals-
disarmament equivalence still fails. “The obvious point that
the dead enjoy no rights does not tell us what the
founding-era generation would have understood about the
rights of felons who lived, discharged their sentences, and
returned to society.” 

 (Barrett, J., dissenting). “No
one suggests that [someone with a felony conviction] has no
right to a jury trial or [to] be free from unreasonable searches
and seizures.” Williams, 113 F.4th at 658. “Dead men do
not speak, assemble, or require protection from unreasonable
searches and seizures ….” United States v. Jackson, 

, 474 (8th Cir. 2023) (Stras, J., dissental). But “we
wouldn’t say that the state can deprive felons of the right to
free speech because felons lost that right via execution at the
time of the founding.” Kanter, 919 F.3d at 461–62 (Barrett,
J., dissenting).
   How can the “greater include the lesser” rationale work
when the claimed “greater” (capital punishment of all, or
even most, felonies) was in fact a historical fiction? It can’t.
And what can the founders’ greater willingness to apply
capital punishment tell us about whether they would disarm
96                     USA V. DUARTE


those not sentenced to death? Nothing. But those aren’t the
only flaws with the majority’s historical analysis. The
majority is also wrong to uncritically equate modern-day
felonies with those at the founding, the point I turn to next.
3. The Difference Between Modern and Founding-era
                       Felonies
    The majority cannot dispute that “today’s felonies do not
correspond with felonies at the founding that were eligible
for death and estate forfeiture.” And the majority rightly
concedes that “[t]he felony category then was a good deal
narrower than now.”          “Many crimes classified as
misdemeanors, or nonexistent, at common law
are now felonies.” Tennessee v. Garner, 

(1985). For example, the crime of vandalism—one of
Duarte’s prior convictions—would have been a
misdemeanor at the founding. United States v. Collins, 

 (11th Cir. 2017) (describing “malicious
mischief” as “the closest common-law offense for damaging
another’s property”); see, e.g., Act of 1772, in An
Abridgment of the Laws of Pennsylvania 357 (Philadelphia,
Farrand, Hopkins, Santzinger & Co. 1811) (setting forth the
penalty for “malicious mischief” as a payment of “the sum
of twenty-five pounds”). And “possessing a firearm as a
felon”—another of Duarte’s prior convictions—“was not
considered a crime until 1938 at the earliest.” Diaz, 116
F.4th at 468 (citing Federal Firearms Act, ch. 850, §§ 1(6),
2(f), 

, 1250–51 (1938)). As a result of this
expansion of what constitutes a felony, § 922(g)(1) now
covers an “immense and diverse category” of criminal
offenses—“everything from ... mail fraud, to selling pigs
without a license in Massachusetts, redeeming large
quantities of out-of-state bottle deposits in Michigan, and
                            USA V. DUARTE                              97


countless other state and federal offenses.” Kanter, 

 (Barrett, J., dissenting). 7
    The majority acknowledges this glaring problem but
then bulldozes right over it. It concludes that legislatures
have “discretion [] consistent with our nation’s history.… to
identify conduct that they deem the most serious and to
punish perpetrators with severe deprivations of liberty.” The
majority doesn’t point to any limits on that discretion. It is
true that “judges [normally] have little authority to question
a legislature’s decision to criminalize or punish certain
conduct; a felony sentence is ‘purely a matter of legislative
prerogative.’” Williams, 113 F.4th at 660–61 (quoting
Rummel v. Estelle, 

 (1980)). “But when
that decision implicates a fundamental, individual right,
judicial deference is simply not an option.” Id. at 661.
    Under the majority’s approach, the Second Amendment
is a paper tiger with no fixed boundaries. “Congress may
decide to change [the definition of what a felony is] in the
future.” Diaz, 116 F.4th at 469. “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 recognized.” Id.; see also
Folajtar, 980 F.3d at 912 (Bibas, J., dissenting) (“The

7
   See also Joseph G.S. Greenlee, The Historical Justification for
Prohibiting Dangerous Persons from Possessing Arms, 

, 269 (2020) [hereinafter Greenlee, Historical Justification] (“[I]n
West Virginia, someone who shoplifts three times in seven years,
‘regardless of the value of the merchandise,’ is forever prohibited from
possessing a firearm. In Utah, someone who twice operates a recording
device in a movie theater is forever prohibited from possessing a firearm.
And in Florida, a man committed a felony when he released a dozen
heart-shaped balloons in a romantic gesture ….” (footnotes and citations
omitted)).
98                     USA V. DUARTE


majority’s   extreme    deference    gives   legislatures
unreviewable power to manipulate the Second Amendment
by choosing a label.”).
    “Simply classifying a crime as a felony does not meet the
level of historical rigor required by Bruen and its progeny.”
Diaz, 116 F.4th at 469. “Put simply, there is no historical
basis,” for Congress “to effectively declare” that committing
a crime punishable by imprisonment for a term exceeding
one year, will result in permanent loss of one’s Second
Amendment right “simply because” that is how Congress
defined a felony in § 922(g)(1). Bruen, 597 U.S. at 31.
     Rather, applying Bruen requires the government to
proffer Founding-era felony analogues that are “distinctly
similar” to Duarte’s underlying offenses and would have
been punishable either with execution, with life in prison, or
permanent disarmament. See id. at 26. This is the approach
taken by several of our sister circuits, including in cases
where courts have found “distinctly similar” Founding-era
felonies. See Range, 124 F.4th at 232 (concluding that the
government had not shown a “longstanding history and
tradition of depriving people like Range,” who was
convicted of mail fraud, “of their firearms”); Diaz, 116 F.4th
at 472 (concluding that disarmament was appropriate
because “[a]t the time of the Second Amendment’s
ratification, those—like Diaz—guilty of certain crimes—
like theft—were punished permanently and severely”).
    The proper approach in a case like this would be for the
government, instead of simply relying on the “felony” label,
to instead present analogies between “distinctly modern”
felonies and any Founding-era analogues, just as it must do
with other firearm regulations. Bruen, 597 U.S. at 28–29.
But in evaluating such analogies to Founding-era crimes,
                            USA V. DUARTE                              99


courts must consider what the modern crime at issue is most
similar to: a relevant capital offense that could subject an
individual to life imprisonment or permanent disarmament?
Or a crime subject to lesser penalties—like a term of years
or temporary disarmament—or perhaps activity that was left
entirely unregulated? 8 Compare Connelly, 117 F.4th at 279
(“[W]e must ask: Which are marijuana users more like:
British Loyalists during the Revolution? Or repeat alcohol
users?”). 9
    Analogizing properly, the government has not shown
that § 922(g)(1)’s permanent firearm ban can be
constitutionally applied to Duarte. As already noted,
Duarte’s prior vandalism and felon-in-possession
convictions were not felonies at the founding. And there are

8
  As the above discussion should make clear enough, contrary to Judge
Collins’s caricature of my position I would not require an “identical
tradition.” I would simply require a historical analogue that has a closer
fit to the modern law and thus has a “comparable burden” and is
“comparably justified” in its restriction on the right of armed self
defense. Bruen, 597 U.S. at 29.
9
  To justify avoiding this approach required by Bruen, the majority turns
to a new favorite talismanic Supreme Court line—stating that this would
lead to looking for “a law trapped in amber.” The majority’s fear is
unwarranted. Just as it must do when considering other Second
Amendment challenges, the court here too is perfectly capable of looking
to analogies and other “relevantly similar” Founding-era regulations.
This is not the first cherrypicked line from a Supreme Court Second
Amendment opinion that our court has weaponized to dodge the standard
the Supreme Court has directed us to apply. See, e.g., McDougall v.
Cnty. of Ventura, 

, 1124 n.1 (9th Cir.), reh’g en banc
granted, opinion vacated, 

 (9th Cir. 2022), and on reh’g en
banc, 

 (9th Cir. 2022) (VanDyke, J., concurring);
Perez-Garcia, 1115 F.4th at 1008 (VanDyke, J., dissental). Perhaps the
Supreme Court should consider trimming some of that low-hanging fruit
out of its dicta. See Duarte, 108 F.4th at 788 (VanDyke, J., disgrantle).
100                   USA V. DUARTE


no comparable analogues that allowed for disarmament
based upon drug offenses. Connelly, 117 F.4th at 278 (“The
government identifies no class of persons at the Founding
who were ‘dangerous’ for reasons comparable to marijuana
users.”); see also Duarte, 101 F.4th at 691 & n.16. The
government has not adduced any evidence showing whether
Duarte’s remaining conviction for evading a peace officer
fits    within      any    “longstanding”   tradition   of
“prohibit[ing] ... the possession of firearms by felons.”
Heller, 

. So the government has altogether
failed to show that applying § 922(g)(1) to Duarte “is
‘relevantly similar’ to laws that” provided for similar
punishments at the founding. Rahimi, 602 U.S. at 692
(quoting Bruen, 597 U.S. at 29).
      E. Designating Categories of Dangerous Persons
    As if the blanket discretion the majority bestows upon
legislatures to disarm anyone they label as a felon was not
concerning enough, the majority also identifies a second—
and even broader—“regulatory principle” supporting
§ 922(g)(1)’s      constitutionality: “legislatures    may
categorically disarm those they deem dangerous, without an
individualized determination of dangerousness.”
    There is no such principle grounded in our nation’s
historical tradition. The historical analogues on which the
majority and the government rely satisfy neither the “how”
nor the “why” of Bruen’s test. The majority relies first on
certain Founding-era laws that disarmed British Loyalists,
Catholics, Native Americans, and Blacks. The majority then
relies upon a series of laws that effectuated temporary
disarmaments—of minors, those of unsound mind, the
actively intoxicated, and “tramps.” But the former set of
laws were all united by one historical principle: they
                        USA V. DUARTE                      101


“permitted disarmament if one was a member of a group that
was expected to take up arms against the government.”
Perez-Garcia, 115 F.4th at 1031 (VanDyke, J., dissental).
And the second set of laws effectuated mere temporary
dispossessions of firearms—not permanent bans like
§ 922(g)(1). Because the historical analogues fail to match
either the “how” or the “why” of Bruen’s test, they are not
“relevantly similar” to § 922(g)(1). Rahimi, 602 U.S. at 692.
           1. Categorical Disarmament Laws
    The first set of laws the majority relies upon are those it
characterizes as “regulations that disarmed those whom the
legislature deemed dangerous on a categorical basis.” These
colonial- and Founding-era laws disarmed or otherwise
limited the ability to own firearms by British Loyalists,
Catholics, Native Americans, Blacks, and slaves. But the
majority is wrong in its historical analysis. The laws did
disarm groups that were deemed to be “dangerous” in the
sense that they were “judged to be a threat to the public
safety.” Kanter, 

 (Barrett, J., dissenting).
But this “history and tradition of disarming ‘dangerous’
persons does not include non-violent [felons like Duarte].
Indeed, not one piece of historical evidence suggests that, at
the time they ratified the Second Amendment, the Founders
authorized Congress to disarm anyone it deemed
dangerous.” Connelly, 117 F.4th at 277.
    In Bruen’s parlance, these sets of categorical
disarmament laws are not analogues because they were
motivated by a different “why.” Their motivation was “one
particular type of perceived danger: that the group would
take up arms against the government during war or in
revolt.” Perez-Garcia, 115 F.4th at 1012 (VanDyke, J.,
dissental); see also Range, 124 F.4th at 245 (Matey, J.,
102                    USA V. DUARTE


concurring) (“Laws imposing class wide disarmament were
enacted during times of war or civil strife where separate
sovereigns competed for loyalty.”); Jackson, 85 F.4th at 472
(Stras, J., dissental) (“[T]he decades surrounding the
ratification of the Second Amendment showed a steady and
consistent practice. People considered dangerous lost their
arms. But being a criminal had little to do with it.”).
    By contrast, § 922(g)(1)’s broader prohibition serves
to—in the majority’s telling, and in Congress’s judgment—
prevent the general danger of gun violence and misuse of
firearms. See Kanter, 

 (describing the
government’s interest in § 922(g)(1) “as preventing gun
violence”); id. at 451 (Barrett, J., dissenting) (same).
“Section 922(g)(1) … takes aim at ‘gun violence’ generally,
which is a ‘problem that has persisted in this country since
the 18th century.’ And § 922(g)(1) ‘confront[s] that
problem’ with ‘a flat ban on the possession of guns.’”
Duarte, 101 F.4th at 677 (alterations omitted) (quoting
Bruen, 597 U.S. at 26, 27). Because these laws did not
address a comparable problem, they are not “relevantly
similar.” Bruen, 597 U.S. at 27–30.
    Given the extent to which the government has relied
upon these alleged categorical disarmament laws, a further
explanation of each of the four categories is in order. During
the Revolutionary War, former colonies enacted laws to
disarm the Loyalists and others who did not take an oath to
the union. See C. Kevin Marshall, Why Can’t Martha
Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 711
(2009) [hereinafter Marshall, Martha Stewart].            The
Continental Congress recommended that legislatures
“disarm persons ‘who are notoriously disaffected to the
cause of America, or who have not associated, and shall
refuse to associate, to defend, by arms, these United
                            USA V. DUARTE                             103


Colonies.’” Greenlee, Historical Justification at 264
(quoting 4 Journals of the Continental Congress, 1774–
1789, at 205 (Worthington Chauncey Ford ed. 1906)). At
least six states enacted such laws, disarming those who
refused to “renounc[e] all allegiance to the now-foreign
sovereign George III in addition to swearing allegiance to
one’s State.” 10 Marshall, Martha Stewart at 724–25.
    These Loyalist laws were temporary measures—both in
the timing for their enactments and in the extent to which

10
   E.g., Act of Oct. 10, 1779, in 9 Statutes at Large of Pennsylvania 347–
48 (James T. Mitchell & Henry Flanders eds. 1903) [hereinafter, Pa.
Statutes at Large]; Act of May 1, 1776, in 5 The Acts and Resolves,
Public and Private, of the Province of the Massachusetts Bay 479–482
(Boston, Wright & Potter Printing Co. 1886); Act of May 1777, in 9
Statutes at Large 281–82 (Hening ed. 1821) [hereinafter, Va. Statutes at
Large]; Act of 1776, in 7 Records of the Colony of Rhode Island and
Providence Plantations in New England 567 (Bartlett ed. 1862); Act of
1777, in 24 The State Records of North Carolina 86–89 (Clark ed. 1905);
Act of 1778, in 203 Hanson’s Laws of Maryland 1763–1784, at 193, 278
(Annapolis, Frederick Green 1801); Act of 1775, in 15 The Public
Records of the Colony of Connecticut, From May, 1775, to June 1776,
at 193 (Hartford, Case, Lockwood & Brainard Co. 1890) (disarming
those who “libel[ed] or defame[d] any of the resolves of
the Honorable Congress of the United Colonies” or, upon “complaint
being made to the civil authority,” were found to be “inimical to the
liberties of this Colony and the other United Colonies in America”);
Order of May 21, 1776, in 15 Documents Relating to the Colonial
History of the State of New York 103 (Albany, Weed, Parsons & Co.
1887) (ordering the supplying of its militias with “such good Arms fit
for soldiers use as they may have collected by disarming disaffected
persons”); Act of April 14, 1778, in Acts of the General Assembly of the
State of New Jersey 90 (Burlington, Isaac Collins 1777) (granting
authority to Council of Safety “to deprive and take from such Persons as
they shall judge disaffected and dangerous to the present Government,
all the Arms, Accoutrements, and Ammunition which they own or
possess”).
104                         USA V. DUARTE


they disarmed individuals. 11           They were “merely
temporary,” 2 Blackstone, Commentaries 368 n.2, as they
were enacted in the midst of the war, and did not “survive[]
through the Founding in anything like their original form,”
Marshall, Martha Stewart at 726. 12 They were also
temporary in the sense that individuals could regain their
right to bear arms upon swearing an oath of allegiance to the
Union or disavowing the Crown. See, e.g., Act of Dec. 1775,
in 15 The Public Records of the Colony of Connecticut,
supra, at 193 (stating that individuals who were “inimical”
to the States would be disarmed only “until they shall
satisfy” the authorities that they “are friendly to this and the
other United Colonies”); see also June 13, 1777, Journal of
the Council of Safety, in 1 The Public Records of the State
of Connecticut 327–29 (Hartford, Cask, Lockwood &
Brainard 1894) (releasing “John Wilcocks and James Ward,”
and “George Folliot,” from custody after each took an oath
of loyalty).
   Given the temporary nature of these laws disarming
Loyalists, they fail both the “why” and “how” of Bruen’s
second step. The motivation for these regulations (wartime


11
   See, e.g., Act of 1778, in 10 Va. Statutes at Large 309–10 (calling for
the confinement of disaffected persons “in this time of public[] danger,
when a powerful and vindictive enemy are ravaging our southern sister
states … it has become highly expedient … to vest the executive with
extraordinary powers for a limited time”); Act of 1779, in 9 Pa. Statutes
at Large 441 (calling for the “temporary suspension of law” in the
“time[] of public danger” and confining suspected Loyalists).
12
   After the Revolutionary War, some states did continue to disarm
Loyalists. Greenlee, Disarming the Dangerous at 53. But these laws too
were temporary—both in the time for which they were enacted, and the
timeframe within which individuals could get their right to bear arms
back upon taking an oath.
                            USA V. DUARTE                            105


measures) was also different than the motivation behind
§ 922(g)(1) (limiting gun crimes). And the manner in which
these laws effectuated that purpose—a temporary
disarmament—does not match § 922(g)(1)’s lifetime ban.
So these laws are not “relevantly similar” to § 922(g)(1).
Bruen, 597 U.S. at 29.
    The colonial laws disarming Catholics fare no better
under Bruen’s test. The government points to only three
such colonial laws. 13 But again, it is “doubt[ful] that three
colonial regulations” prove that disarming Catholics as a
class ever became a “well-established” national tradition.
See Bruen, 597 U.S. at 46. These laws too were temporary
measures; passed at the height of the French and Indian War,
during which “American Protestants worried that their
Catholic neighbors were plotting with Catholic France to
impose Catholic rule throughout America.” Greenlee,
Disarming the Dangerous at 35–36. And just as with
disarming Loyalists amidst the Revolutionary War, these
laws were limited in time and bore virtually “the same
rationale.” Marshall, Martha Stewart at 723. So again, the
“why” and “how” break down under Bruen’s test.



13
   See Act of 1757 for Forming and Regulating the Militia, in 3
Pennsylvania Archives 131–32 (Harrisburg, Joseph Severns & Co. 1853)
(seizing arms belonging to any “Papist or reputed Papist”); Act of 1756,
for Regulating the Militia of the Province of Maryland, in 52
Proceedings and Acts of the General Assembly, 1755–1756, at 454
(Raphael Semmes ed. 1946) (same); Act of 1756 for Disarming Papists,
and Reputed Papists, Refusing To Take the Oaths To the Government,
in 7 Va. Statutes at Large 35–36 (“[N]o Papist, or reputed Papist
[refusing to take an oath], shall, or may have, or keep in his house or
elsewhere, or in the possession of any other person to his use, or at his
disposition, any arms, weapons, gunpowder or ammunition ….”).
106                         USA V. DUARTE


    The colonial laws barring the sale of arms to Native
Americans are even less relevant. At least eight colonies
enacted such laws that barred the sale of firearms to Native
Americans. 14 The colonies justified these laws as measures
in an ongoing military conflict. Greenlee, Disarming the
Dangerous at 29–30; Perez-Garcia, 115 F.4th at 1026
(VanDyke, J., dissental). Their aim was to limit the danger
of armed encounters with hostile Native Americans. See
Greenlee, Disarming the Dangerous at 29. 15 So these laws

14
   See 1 Journals of the House of Burgesses of Virginia, 1619–1658/59,
at 13 (H.R. McIlwaine ed. 1915) (making it a crime to “sell or give any
Indians any piece shott, or poulder, or any other armes offensive or
defensive”); Act of 1633 Respecting the Indians, in The Charters and
General Laws of the Colony and Province of Massachusetts Bay 133
(T.B. Wait & Co., 1814) (banning the selling or bartering of “any gun or
guns, powder, bullets, shot, [or] lead, to any Indian whatsoever”);
Ordinance of March 31, 1639, in Laws and Ordinances of New
Netherland, 1638–1674, at 19 (Albany, Weed, Parsons & Co. 1868)
(“every Inhabitant of New Netherland … is most expressly forbidden to
sell any Guns, Powder or Lead to the Indians, on pain of being punished
by Death”); The Public Records of the Colony of Connecticut, Prior to
the Union With New Haven Colony, May 1665, at 529–30 (Hartford,
Brown & Parsons 1850) (barring repairing an Indian’s gun or selling one
to an Indian); Act of 1763 to Prohibit the Selling of Guns, Gunpowder,
or other Warlike Stores to the Indians, in 6 Pa. Statutes at Large 319–20
(banning giving, selling, bartering, or exchanging with any Indian “any
guns, gunpowder, shot, bullets, lead or other warlike stores without
license”); Act of 1763 for Prohibiting All Trade With the Indians, in
Acts of Assembly of the Province of Maryland, ch. IV, § 3 (Jonas Green,
1764) (prohibiting selling or giving “Gun-powder, Shot, or Lead” to
Indians over a certain quantity).
15
   See also, e.g., 1675 Act for the Safeguard and Defence of the Country
Against the Indians, in 2 Va. Statutes at Large, supra, at 326–27, 336
(condemning “the sundry mur[d]ers, rapines and many depredations
lately committed and done by Indians on the inhabitants of this country,”
                             USA V. DUARTE                              107


too fail to serve as a distinctly similar historical analogue, as
they had a distinct purpose (the “why”)—not arming the
enemy. The laws also imposed a different type of burden
(the “how”). They did not ban Native Americans from
possessing firearms but simply prohibited colonists from
selling them arms. Greenlee, Disarming the Dangerous at
29.
    Finally, colonial laws disarming slaves and Blacks
reflected similar concerns. Just as the colonists feared the
“danger of Indian attack[s],” they felt the “equivalent fear”
of “indentured servants and slaves as a class.” Michael A.
Bellesiles, Gun Laws in Early America: The Regulation of
Firearms Ownership, 1607–1794, 16 L. & Hist. Rev. 567,
581 (1998). The colonies justified disarming Blacks based
on the threat of violence they posed as a collective group. 16


directing that “a war[] be declared ... against all such Indians,” and
ordering that “any person ... within this colony ... presum[ing] to
trade ... with any Indian any powder, shot[] or arm[s] ... shall suffer
death without benefit[] of clergy”).
16
   See, e.g., Act of 1752, in 2 Va. Statutes at Large 481–82 (“Whereas
the frequent meeting of considerable numbers of negroe slaves ... is
judged of dangerous consequence ... it shall not be lawful[] for
any negroe or other slave to carry or arm[] himself[] with any club,
staff[], gun[] ... or any other weapon.”); Act of 1770, in A Codification
of the Statute Law of Georgia 813 (Augusta, Charles E. Greville 1848)
(“[A]s it is absolutely necessary to the safety of this province[] ... to
restrain the wandering and meeting of ... slaves ... it shall be lawful for
any person ... to apprehend any ... slave ... found out of the
plantation ... [and] if he ... be armed ... to disarm [him].”); Act of 1740,
in 7 Statutes at Large of South Carolina 410 (Columbia, A.S. Johnston
1840) (same); see also 1790 Act of N.C., in A Manual of the Laws of
North-Carolina 172 (Raleigh, J. Gales 1814) (“When any number
of negroes, or other slaves, or free people of color, shall collect together
108                         USA V. DUARTE


See Heller, 554 U.S. at 611–12 (citing Waters v. State, 

 (Md. 1843) for the proposition that “free blacks
were treated as a ‘dangerous population,’” prompting
“‘laws ... to make it unlawful for them to bear arms’”).
Many colonies prohibited slaves and free Blacks from
possessing arms for this reason. 17 See Jamie G. McWilliam,

in arms, and be going about the country, committing thefts and alarming
the inhabitants of any county, it shall be the duty of the commanding
officer of such county to suppress[] such depredations or
insurrections.”); 12 The Colonial Records of the State of Georgia 451–
52 (Candler ed. 1907) (petitioning the Governor for relief from “a
Number of Slaves appear[ing] in Arms ... [and] commit[ting] great
Outrages and plunder in and about the Town” so that “all Slaves ... be
immediately disarmed”).
17
   See Act of 1664, in 2 The Colonial Laws of New York From the Year
1664 to the Revolution 687 (Albany, James B. Lyon 1894) (making it
unlawful “for any Slave or Slaves to have or use any gun Pistoll sword
Club or any other Kind of Weapon whatsoever” unless in the presence
of their master); Act for the Trial of Negroes, in 1 Laws of the State of
Delaware 104 (Newcastle, Samuel & John Adams 1797) (regulating the
possession of weapons by “any Negro or Mulatto slave”); Act of 1704
Relating to Servants and Slaves, in Proceedings and Acts of the General
Assembly of Maryland, September, 1704–April, 1706, at 261 (Browne
ed. 1906) (“[N]o Negro or other Slave within this Province shall be
permitted to carry any Gunn or any other Offensive Weapon ....”); Acts
of Assembly, Passed in the Province of New York, From 1691, to 1718,
at 144 (London, John Baskett 1719) (“[I]t shall not be Lawful for any
Negro, Indian, or Mulatto Slave, to have or use any Gun or Pistol, but in
his Master’s ... Presence ....”); Act of 1770, in A Codification of the
Statute Law of Georgia, supra, at 812 (“It shall not be lawful for any
slave, unless in the presence of some white person, to carry and make
use of firearms, or any offensive weapon whatsoever ….”); Act of 1740,
in 7 Statutes at Large of South Carolina, supra, at 404 (same); Act of
1755, in 18 The Colonial Records of the State of Georgia 117–18
(Candler ed. 1910) (“[I]t shall not be Lawfull for any Slave ... to Carry
and make use of Fire Arms” except with a ticket that must be renewed
each month).
                        USA V. DUARTE                       109


Refining the Dangerousness Standard in Felon
Disarmament, 108 Minn. L. Rev. Headnotes 315, 319–20
(2024) [hereinafter, McWilliam, Refining the Dangerous
Standard].
    In sum, this history reveals that even while there was a
tradition of disarming groups deemed to be “dangerous,”
Kanter, 

 (Barrett, J., dissenting), the danger
motivating their disarmament was always a very particular
one: “a violent attack against the community by a group
opposed to the current regime.” Perez-Garcia, 115 F.4th at
1028 (VanDyke, J., dissental); id. (“In each historical
scenario, danger meant one thing: a violent attack.” (quoting
McWilliam, Refining the Dangerousness Standard at 324–
25)); see also Range, 124 F.4th at 244–45 (Matey, J.,
concurring) (describing the “hallmark [principle] of our
Nation’s firearm regulations” that “an individual cannot
exercise [the right to bear arms] to rebel against a just
government”).
    It should be clear enough that § 922(g)(1) does not fit
within that tradition. The burdens and justifications
(Bruen’s “how” and “why”) for laws disarming disfavored
groups at the founding are not “relevantly similar” to
§ 922(g)(1)’s blanket ban on non-violent felons possessing
firearms. Bruen, 597 U.S. at 29. While § 922(g)(1) was
“originally intended to keep firearms out of the hands of
violent persons,” Greenlee, Historical Justification at 274,
the law now “encompasses those who have committed any
nonviolent felony or qualifying state-law misdemeanor”—
an “immense and diverse category.” Kanter, 

(Barrett, J., dissenting); see also United States v. Booker, 

 (1st Cir. 2011) (noting that “the earliest
incarnation” of § 922(g)(1) codified “as the Federal Firearms
Act of 1938 … initially covered those convicted of a limited
110                     USA V. DUARTE


set of violent crimes such as murder, rape, kidnapping, and
burglary”).
    The majority thus fails to show support for its proposed
“regulatory principle” from the 17th- and 18th-century
categorical disarmament laws it addresses. As we’ll see, its
second set of 19th-century laws fare no better.
              2. Temporary Disarmaments
    The majority points to four sets of laws that it describes
as “categorical restrictions on the possession of firearms by
certain groups of people.” These laws restricted the ability
to possess firearms by minors, the unsound of mind, the
intoxicated, and “tramps.” At the outset, given the absence
of such regulations in the Founding-era, the majority only
cites law from the Reconstruction-era (or later). This
approach “inverts historical analysis by relying principally
on mid-to-late-19th century statutes (most enacted after
Reconstruction)” then “work[ing] backward to assert that
these laws are consistent with founding-era analogues.”
Reese, 127 F.4th at 596. But none of these laws is a
“relevantly similar” analogue in any event, as they were
merely temporary disarmaments, in contrast to § 922(g)(1)’s
permanent disarmament.
    The first set involves laws that prohibited minors from
purchasing or possessing firearms. Of course, a limitation
on a minor’s right is necessarily a temporary limitation,
given that the limitation falls away once the minor passes the
age of majority. Moreover, the idea that historical
limitations on the scope of a minor’s constitutional rights can
justify even greater restrictions on an adult’s rights
contradicts the Supreme Court’s repeated conclusions that
other fundamental constitutional rights apply differently to
minors. See, e.g., New Jersey v. T.L.O., 

, 337–
                       USA V. DUARTE                      111


38 (1985) (Fourth Amendment); McKeiver v. Pennsylvania,

, 550–51 (1971) (Sixth Amendment);
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 

 (1969) (free speech); W. Va. State Bd. of Educ. v.
Barnette, 

 (1943) (free exercise); U.S.
Const. amend. XXVI (voting); see also Reese, 127 F.4th at
591 (noting that constitutional rights are applied to minors
“with modifications”). In short, these late-19th century laws
authorizing the temporary disarmament of minors are not
relevantly similar to § 922(g)(1)’s lifetime disarmament.
     The same is true of the laws that prohibited the sale of
firearms to those of unsound mind. These historical laws
only provide support for disarming those who are presently
ill. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 

, 705–06 (6th Cir. 2016) (en banc) (Batchelder, J.,
concurring in most of the judgment). “Our common law
heritage has long recognized that mental illness is not a
permanent condition.” Tyler, 

 (Sutton, J.,
concurring in most of the judgment); see also Anthony
Highmore, A Treatise on The Law of Idiocy and Lunacy 73
(Exeter, George Lamson 1822) (“A lunatic is never to be
looked upon as irrecoverable.”). “At the time of the
Founding” “mental illness was considered a temporary
ailment that only justified a temporary deprivation of
rights.” Mai v. United States, 

, 1090 (9th Cir.
2020) (Bumatay, J., dissental); see also 

 (“[T]he
evidence is clear: temporary mental illness didn’t lead to a
permanent deprivation of rights.”). The laws the majority
relies on did not effectuate the permanent disarmament of
those who were deemed to be of unsound mind. So they too
are not “relevantly similar.”
    The majority next proffers four state laws that restricted
the possession of firearms by those who were intoxicated, or
112                    USA V. DUARTE


the sale of firearms to them. But offering just four
Reconstruction-era laws “passed scores of years
post-Ratification … misses the mark by a wide margin.”
Connelly, 117 F.4th at 281. At best, these “statutes provide
support for banning the carry of firearms while actively
intoxicated.” Id. (discussing the same laws the majority
relies upon). They did not ban the wholesale possession of
firearms by those who used intoxicating substances, nor did
they ban carry by those who were not actively under the
influence. Id.; see also Act of Feb. 28, 1878, in Laws of the
State of Mississippi 175 (Jackson, Power & Barksdale)
(simply prohibiting the “s[ale] to any minor or person
intoxicated,” and not prohibiting the carrying of firearms
generally). These laws are not relevantly similar to
§ 922(g)(1)’s permanent disarmament.
    The laws disarming “tramps” are no different. They too
did not effectuate permanent disarmaments. Rather, they
applied only to individuals who were actively engaging in
certain activities. See Eugene Volokh, Implementing the
Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda, 

, 1475 (2009) (distinguishing between restrictions
that limit “how” or “when” one may carry, and restrictions
that limit “who” may carry). For example, Ohio’s law
applied to men who were not “in the county in which he
usually lives or has his home” and were “found going about
begging and asking subsistence by charity.” State v. Hogan,

, 208 (1900). “The point of prohibiting
armed tramps from threatening harm to another’s person or
property was plainly to prevent violence.” Greenlee,
Historical Justification at 270 (citing Hogan, 63 Ohio St. at
215, 219). As the Ohio Supreme Court explained in
upholding this law against constitutional challenge, the law
                       USA V. DUARTE                      113


did not prohibit carrying firearms generally but only carrying
firearms for the unlawful purpose of “terrorizing” the
community. See Hogan, 63 Ohio St. at 216; id. at 219 (“A
man may carry a gun for any lawful purpose, for business or
amusement, but he cannot go about with that or any other
dangerous weapon to terrify and alarm a peaceful people.”).
    Altogether, the majority’s proffered laws simply
effectuated temporary disarmaments. And a temporary
disarmament is not a relevant analogue to the lifetime bar on
possession that § 922(g)(1) imposes. See Rahimi, 602 U.S.
at 699 (emphasizing “[s]ection 922(g)(8)’s restriction was
temporary as applied to Rahimi”); id. at 713 (Gorsuch, J.,
concurring) (stressing the same point); Kanter, 

 n.18 (Barrett, J., concurring) (distinguishing between
permanent and temporary disarmaments). Because the
“how” of the historical temporary disarmaments do not
match § 922(g)(1)’s much-broader permanent disarmament,
these laws are not “relevantly similar” analogues. Rahimi,
602 U.S. at 692.
                  3. Absolute Discretion
    The consequences of the principle the majority
announces are profound. The majority puts it entirely within
the hands of “the legislature [to] determine[] [who]
represent[s] a ‘special danger of misuse.’” In doing so, our
court neuters any judicial oversight of the legislative
determinations as to who can be permanently disarmed—
effectively stripping them of their Second Amendment rights
altogether.
    By granting legislatures unreviewable discretion to
disarm entire categories of individuals, the majority
necessarily returns right back to a regime of deference to
legislative interest-balancing rejected by the Supreme Court
114                     USA V. DUARTE


in Bruen. See Range, 124 F.4th at 228 (rejecting the
approach the majority takes here “because such ‘extreme
deference gives legislatures unreviewable power to
manipulate the Second Amendment by choosing a label’”
(quoting Folajtar, 980 F.3d at 912 (Bibas, J., dissenting)));
Williams, 113 F.4th at 660 (rejecting the majority’s approach
here because “complete deference to legislative line-
drawing would allow legislatures to define away a
fundamental right”). The Supreme Court has clearly
instructed us to stop deferring to legislative interest-
balancing in Second Amendment cases. See Bruen, 597 U.S.
at 19, 22, 26. The Court has given us one standard for
determining when an individual can be disarmed, consistent
with the Second Amendment: “whether there is a tradition
of disarming analogous groups in a similar manner and for
similar reasons. Deference to legislative labels is not part of
that test.” Perez-Garcia, 115 F.4th at 1022 (VanDyke, J.,
dissental) (citations omitted).
    It is problem enough that the majority steps back into a
regime of interest-balancing. But the majority goes even
further. Instead of just returning to the old interest-balancing
regime—in which our court applied either strict or
intermediate scrutiny, see, e.g., Young, 992 F.3d at 783–
84—the majority’s decision here effectively now applies
rational basis review to categorical firearm disarmaments.
One step forward in Bruen, three steps back in the Ninth
Circuit.
    As Heller explained, “[i]f all that was required to
overcome the right to keep and bear arms was a rational
basis, the Second Amendment would be redundant with the
separate constitutional prohibitions on irrational laws, and
would have no effect.” 554 U.S. at 628 n.27. That is why,
for each of our constitutional rights—including those found
                            USA V. DUARTE                              115


in the First through Fourteenth Amendments—courts do not
simply defer to legislative fiat. See id. at 636 (“[T]he
enshrinement of constitutional rights necessarily takes
certain policy choices off the table.”).
    The majority’s rational basis test doesn’t stop at
disarming just felons either. Under the majority’s extreme
deference, the legislature can disarm anyone it deems to
present a “special danger.” States could, for example,
disarm “aliens, or military veterans with PTSD.” Nat’l Rifle
Ass’n, Inc. v. A.T.F., 

 (5th Cir. 2013)
(Jones, J., dissental). And why stop at felons? Those with
misdemeanor convictions could be disarmed too. 18 Perhaps
even just those who have only ever been indicted. Those
with a below-average IQ score could lose their right to bear
arms. 19 Those who are unemployed, are less educated, or
have a low income could be banned, since a legislature could
rationally conclude that they were more likely as a group to




18
   See Kanter, 

 (discussing findings that “even handgun
purchasers with only 1 prior misdemeanor conviction and no convictions
for offenses involving firearms or violence were nearly 5 times as likely
as those with no prior criminal history to be charged with new offenses
involving firearms or violence” (quoting Garen J. Wintemute, et al.,
Prior Misdemeanor Convictions as a Risk Factor for Later Violent and
Firearm-Related Criminal Activity Among Authorized Purchasers of
Handguns, 280 J. Am. Med. Ass’n 2083, 2083 (1998) (emphasis
omitted))).
19
  See, e.g., Richard J. Herrnstein et al., Does IQ Significantly Contribute
to Crime?, in Taking Sides: Clashing Views on Controversial Issues in
Crime and Criminology 34–42 (6th ed. 2001) (arguing that IQ is a
significant cause of crime and indicating that criminal populations
generally have an average IQ below the mean).
116                         USA V. DUARTE


commit violent crimes. 20 How about everyone under the age
of 25? Of course, they could be disarmed too under the
majority’s rationale. 21 There are countless classes of people
for whom a legislature could muster up enough statistics to
show that they are more likely to commit certain crimes
using a firearm than the general public: men; 22 people who




20
  See, e.g., Richard B. Freeman, The Economics of Crime, in 3
Handbook of Labor Economics 3532 (Ashenfelter & Card eds. 1999).
 See, e.g., Richard B. Freeman, Why Do So Many Young American Men
21

Commit Crimes and What Might We Do About It?, J. Econ. Perspectives,
Winter 1996, at 29–30.
22
  See United States v. Daniels, 

, 353 & n.39, (5th Cir. 2023)
(noting that in 2012, approximately 80% of offenders arrested for violent
crimes were men (citing 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)).
                             USA V. DUARTE                              117


play violent videogames; 23 transgender persons; 24 registered
Democrats. 25
    The merits of the social science behind each of these
suspect classifications may not be rock-solid. But under the
majority’s rational basis test, I see no reason why they would
not pass constitutional muster. After all, “a legislative
choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or
empirical data.” F.C.C. v. Beach Commc’ns, Inc., 

 (1993). “[T]he rational basis standard ‘asks
whether there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.’”
Montana Med. Ass’n v. Knudsen, 

, 630 (9th
Cir. 2024) (quoting Olson v. California, 

, 77
(9th Cir. 2024) (en banc)) (cleaned up). With no more than
a rational basis requirement, legislatures have carte blanche
authority to disarm any disfavored groups.



23
   See, e.g., Craig Anderson et al., Violent Video Game Effects on
Aggression, Empathy, and Prosocial Behavior in Eastern and Western
Countries: A Meta-Analytic Review, 136 Psych. Bull. 151, 151–73
(2010) (“[W]e believe that debates can and should finally move beyond
the simple question of whether violent video game play is a causal risk
factor for aggressive behavior; the scientific literature has effectively and
clearly shown the answer to be ‘yes.’”).
24
  See, e.g., Diana Miconi et al., Meaning in Life, Future Orientation and
Support for Violent Radicalization Among Canadian College Students
During the COVID-19 Pandemic, Frontiers Psychiatry, Feb. 2022, at 7,
9 (“Transgender and gender-diverse youth emerge as the group at the
highest risk of support for [violent radicalization].”).
25
  See Marc Meredith & Michael Morse, Do Voting Rights Notification
Laws Increase Ex-Felon Turnout?, 

, 229 (2014).
118                    USA V. DUARTE


    We would never treat any other fundamental
constitutional right this way. This “approach once again
makes the Second Amendment a constitutional outlier.”
Perez-Garcia, 115 F.4th at 1020 (VanDyke, J., dissental). I
have already explained how we treat the First and Fourth
Amendments different from the Second. Id. at 1020–21.
Under the First Amendment, legislatures cannot willy-nilly
preclude speech “on a categorical basis based on a
reasonable determination that [the speech] present[s] a
‘special danger.’” Rather, to “exempt[] a category of speech
from the normal prohibition on content-based restrictions”
the government must show “‘persuasive evidence that a
novel restriction on content is part of a long (if heretofore
unrecognized) tradition of proscription.’” United States v.
Alvarez, 

 (2012) (quoting Brown v. Ent.
Merchants Ass’n, 

 (2011)). In the Sixth
Amendment context, the Supreme Court has also rejected
deference to state policymakers when identifying exceptions
to the confrontation right, emphasizing that “federal
constitutional rights are not typically defined—expanded or
contracted—by reference to [such] non-constitutional bodies
of law.” Smith v. Arizona, 

, 794 (2024).
    Try to imagine any other constitutional right that the
members of this majority would treat the way it treats the
Second Amendment—explicitly providing our court’s
imprimatur to “overbroad” laws and granting governments
authority to strip the rights even of “law-abiding people who
[are] not dangerous, violent, untrustworthy, or unstable.” I
can’t think of one. The Second Amendment is inarguably
the red-headed stepchild of the Constitution.
                        USA V. DUARTE                       119


         III. Response to Separate Concurrence
    Judge Collins’s concurrence offers a different route to
get to the majority’s conclusion. The concurrence first
accepts the majority’s view that there is a historical tradition
that rests on the back of the racially and religiously
discriminatory laws that categorically disarmed certain
groups at the founding. But unlike the majority, Judge
Collins is unwilling to leverage that tradition to authorize a
freewheeling power today to disarm any group a legislature
desires, since that historical principle would be too broad to
satisfy Bruen’s commands and would effectively eliminate
an express constitutional guarantee. So to cabin the
principle, the concurrence concludes that a legislature’s
categorical disarmament power must at least be tethered to
some group that was actually disfavored at the founding.
Thus the Second Amendment does not prevent legislatures
from categorically disarming those who were disarmed in
the past, such as Loyalists, Catholics, Native Americans,
Blacks, and slaves (although the concurrence quickly adds
that all of these groups—except modern anglophiles, I
suppose—would presumably be protected from singling out
today by other constitutional provisions).
    It’s an admirable attempt by Judge Collins to cabin the
majority’s breathtakingly broad historical principle and to
gerrymander something to save § 922(g)(1) as applied to
nonviolent felons without inventing a sweeping exception to
the Second Amendment that so obviously swallows the rule.
The threshold problem with that approach, though, is the
stubborn fact that felons were never, as a group,
categorically disarmed at the founding. The concurrence
needs some mechanism to extend the disarmament power to
all felons notwithstanding this historical obstacle, so it
concludes that the modern power to disarm extends not only
120                     USA V. DUARTE


to those who were disarmed at the founding, but also to any
group that could have been treated as bad as or worse than
being disarmed. This works, the concurrence concludes,
because legislatures at the founding could treat felons worse
than just disarming them—they could impose the death
penalty upon them. Therefore, “taken together,” the two
historical traditions of the state power to severely punish
felons and the state power to categorically disarm
historically disfavored groups are enough to sustain
§ 922(g)(1)’s constitutionality.
    I offer a few points in response to Judge Collins’s gloss
on the majority’s approach.
    First, the different route taken by the concurrence still
runs into many of the same flaws that I and other judges have
already identified with the majority’s approach. For starters,
both the majority and concurrence depend on a false history.
As I already explained, the colonies departed from the older
common law tradition of generally imposing the death
penalty for felonies, and that trend continued through the
founding and into succeeding generations. So to get around
this absence of historical support, the concurrence makes the
same analytical move the majority does, contending that
what matters is not that real history supports its position, but
rather that history theoretically could have supported its
position, since presumably Founding-era legislatures had the
discretion to make basically any felony (not to mention
many non-felonies) death eligible.
    But that doesn’t do the trick. Bruen requires a
“well-established” historical tradition, not speculation about
what historically could have happened in a Marvel-style
multiverse. 597 U.S. at 46. Because history shows the lack
of any “uniform severity of punishment that befell” felons
                        USA V. DUARTE                       121


at the founding, “the permanent and pervasive loss of all
rights cannot be tied generally to one’s status as a convicted
felon.” Kanter, 

 (Barrett, J., dissenting).
    The concurrence’s historical analysis tracks the
majority’s flaws in another way too. The concurrence
presupposes that felonies at the founding were the equivalent
of felonies today. But as described in response to the
majority, many felonies today bear little resemblance to the
felonies at the founding that were eligible for the death
penalty. See, e.g., Garner, 

. This is
particularly problematic for the concurrence. If the whole
point of the concurrence’s novel approach is to arrive at the
same conclusion as the majority but in a way that does not
give carte blanche to legislatures to simply disarm
whomever they want, then you would think that the types of
“felons” disarmed today would need to be the same types of
“felons” usually executed at the founding. Where the only
similarity is the label “felon,” then the constraining rationale
for the concurrence’s alternative approach falls apart.
    From the laws that disarmed Catholics, Loyalists, slaves,
Blacks, and Native Americans the concurrence also seems to
draw the same principle as the majority: That these groups
of persons were all deemed to present a “special danger of
misuse.” But like the majority the concurrence fails to
acknowledge that each of these “[l]aws imposing class wide
disarmament were enacted during times of war or civil strife
where separate sovereigns competed for loyalty.” Range,
124 F.4th at 245 (Matey, J., concurring). Thus the historical
principle that flows from these laws is that groupwide
disarmament is appropriate “if one was a member of a group
that was expected to take up arms against the government.”
Perez-Garcia, 115 F.4th at 1031 (VanDyke, J., dissental).
Neither the majority nor the concurrence make sense of that.
122                    USA V. DUARTE


    The concurrence also suffers from the flaw that it does
not explain what historical punishments are severe enough
to be equal to or “greater” than disarmament. The
concurrence notes that “a historical tradition allowing the
imposition of other, more severe penalties than disarmament
on a given class of persons may provide a sufficient analogue
to support allowing such persons to be disarmed,” but never
explains what penalties are, in fact, “more severe.” Most
would agree that death is worse than disarmament. As the
concurrence acknowledges, “[i]nflicting death … is the
most severe exercise of state power against an individual,”
thus making any other punishment a lesser restriction. But
at what point does imprisonment—even if not for life—
become “more severe” than permanent disarmament? Many
would no doubt surrender their right to bear arms for life
rather than spend even a short time in prison. And how large
must a fine become before it is more severe than permanent
disarmament? The majority treats disarmament as a “lesser
restriction” than estate forfeiture. But why would forfeiture
be a more severe punishment than disarmament when, in
fact, an individual could recover all that was forfeited, but
could not recover the constitutional right stripped by a
permanent disarmament? See Range, 124 F.4th at 231
(describing estate forfeiture as a temporary punishment).
Just like the majority, the concurrence offers no principled
way for courts to ascertain what “legal burdens [are]
equivalent to or more onerous than permanent
disarmament.” Nor could it. This is surely at least part of
                            USA V. DUARTE                              123


the reason courts don’t use this “greater includes the lesser”
reasoning for other rights. 26
    It is also important to notice that while the concurrence
makes an admirable effort to reach a narrower holding than
the majority’s, it is far from clear that it successfully
achieves that goal. The concurrence would cabin the
discretion afforded to legislatures in just one dimension
while leaving a wide-open path to generally disarm in just
slightly different ways. The concurrence contends that its
approach “confin[es] any legislative categorical

26
    The concurrence is correct to note that I am not a fan of the
“greater-includes-the-lesser” standard. Unless such standards are
rigorously applied, they fail to constrain judges. And it is clear that in
the Second Amendment context judges need constraining, as judges—
like my colleagues in the majority here—can always find a reason to rule
against the Second Amendment when given some flexibility. Indeed,
one of the reasons that Bruen rejected the interest balancing two-step
approach was that it gave too much leeway to judges to balance away
constitutional rights. 597 U.S. at 22–24. The Justices have also
repeatedly emphasized that courts must be careful to avoid using
historical analogizing to eliminate constraints. See id. at 29 n.7 (noting
that analogizing “is not an invitation to revise th[e] balance [struck by
the founding generation] through means-end scrutiny”); Rahimi, 602
U.S. at 740 (Barrett, J., concurring) (noting that “a court must be careful
not to read a principle at such a high level of generality that it waters
down the right”); id. at 734 (Kavanaugh, J., concurring) (noting that a
“history-based methodology supplies direction and imposes a neutral
and democratically infused constraint on judicial decisionmaking”); id.
at 712 (Gorsuch, J., concurring) (noting the problem of permitting judges
“to extrapolate their own broad new principles from” text and history
such that “no one can have any idea how they might rule”). The
concurrence fails to head those warnings when applying the greater-
includes-the-lesser standard here; not only applying that standard, but
extending it beyond the context of temporary disarmament in which the
Rahimi court applied it to the new context of permanent disarmaments.
602 U.S. at 699.
124                     USA V. DUARTE


disarmament power” and “avoids endorsing the sort of
freewheeling legislative power to categorically disarm that
the Second Amendment sought to eliminate.” But the
concurrence’s approach leaves legislatures essentially
unfettered discretion to categorically disarm for life anyone
who has committed some crime (and who hasn’t?) by using
the eminently manipulable “felony” label.             As the
concurrence acknowledges, there are few limits on what
conduct a legislature could designate a felony. So at the end
of the day, the concurrence would still “give[] legislatures
unreviewable power to manipulate the Second Amendment
[just] by choosing a label.” Id. at 228 (quoting Folajtar, 980
F.3d at 912 (Bibas, J., dissenting)).
    And while at first blush the concurrence’s serpentine
approach may seem to be a handy way to justify disarming
all felons—but only felons—on closer inspection it
unfortunately isn’t as constrained as it first appears. If, as
the concurrence posits, the “legislative categorical
disarmament power” can apply to any “historically based
classes of persons who could be subjected to equivalent or
greater disabilities,” then it is not just felons who would be
affected. While the concurrence would rely on “other
provisions of the Constitution” to cabin its approach, other
large groups besides felons still fall in the gap. Legislatures
at the founding punished—including with death or lengthy
imprisonment—those who engaged in conduct that the
founding generation deemed to be sexually immoral or
deviant, a tradition of disarmament that could presumably
extend to the massive part of society today who engage or
                           USA V. DUARTE                           125


have engaged in similar conduct. 27 Legislatures at the
founding also allowed for the indefinite imprisonment of
delinquent debtors in debtor’s prisons, a tradition that one
could expect to allow for disarming the bankrupt or insolvent
today. 28 The sexually immoral and debtors at the founding
certainly were “subjected to legal disabilities that were
equivalent to, or more severe than,” disarmament. If
legislatures today can disarm those who fall in even just
these two “historically based” categories, a large number of
Americans beyond just “felons” could be disarmed under the
concurrence’s approach. 29 And I’m sure if we tried we could
think of more groups.


27
   See, e.g., An Act Against, and For The Punishment of, Adultery, in
Acts and Laws of the State of Connecticut in America, supra, at 30–31;
Martin J. Siegel, For Better or for Worse: Adultery, Crime & the
Constitution, 

, 48 (1992) (discussing the prevalence of
colonial laws prohibiting adultery and sex outside of wedlock);
Lawrence v. Texas, 

 (2003) (Scalia, J., dissenting)
(noting that there are “records of 20 sodomy prosecutions and 4
executions during the colonial period” (citing Jonathan Katz,
Gay/Lesbian Almanac 29, 58, 663 (1983))).
28
   See Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of
American Independence 81 (2002); see also generally Charles Dickens,
Little Dorrit (London, G.L. Wright 1857).
29
    See, e.g., Bankruptcy Filing Statistics, United States Courts,
https://www.uscourts.gov/data-news/reports/statistical-
reports/bankruptcy-filings-statistics (last visited April 21, 2025);
Lindsay T. Labrecque & Mark A. Whisman, Attitudes Toward and
Prevalence of Extramarital Sex and Descriptions of Extramarital
Partners in The 21st Century, 31 J. Family Psych. 952, 952–57 (2017);
Lawrence B. Fine, Trends in Premarital Sex in The United States,
1954-2003, Pub. Health Rep., Jan.–Feb. 2007, at 76 (noting that
“[a]lmost all individuals of both sexes have intercourse before
126                       USA V. DUARTE


    Now you might think that judges and state legislatures
out here on the left coast would never, ever rely on historical
laws punishing sexual conduct and impoverishment to
justify modern disarmament. If so, you would be wrong.
Our court has repeatedly made sufficiently clear that when it
comes to justifying disarmament, any stick will do to beat a
dog—even the ugliest stick. One need look no further than
this very case, where the majority and the government (and
the concurrence) justify disarming non-violent felons by
relying on racially and religiously discriminatory laws.
Notwithstanding the majority’s professed displeasure with
such discriminatory laws, this displeasure apparently takes a
back seat to their “demonstrated dislike of things that go
bang.” See Mai, 974 F.3d at 1097 (VanDyke, J., dissental).
Similarly, while the State of Washington and a majority of
this court professed tears of sympathy for the plight of the
mentally ill and insisted that they didn’t really believe that
once mentally ill, always so, see Mai, 952 F.3d at 1121, that
didn’t stop them from justifying permanent disarmament
based on exactly that notion, see Mai, 974 F.3d at 1098
(VanDyke, J., dissental). Just as our court does with race
and religion here, and did with mental illness in Mai, when
presented with a choice between modern sexual mores and
views about the poor, or effectuating a broader disarmament,
the safe bet is that our court would pursue the latter. The
concurrence’s approach, while an admirable attempt to limit
our court’s discretion to broadly disarm groups other than all


marrying”); Jeffrey M. Jones, LGBTQ+ Identification in U.S. Now at
7.6%,            GALLUP            (Mar.           13,         2024),
https://news.gallup.com/poll/611864/lgbtq-identification.aspx (noting
that “7.6% of U.S. adults now identify[] as lesbian, gay, bisexual,
transgender, queer or some other sexual orientation besides
heterosexual”).
                        USA V. DUARTE                      127


felons, would still leave ample avenues to get to much of the
same result as the “legislatures-can-ban-whomever-they-
want” principle adopted by the majority today. I give the
concurrence an “A” for effort, but ultimately the same failing
grade as the majority for its slightly different but equally
flawed approach.
                      IV. Conclusion
    It’s worth reiterating at this point how unnecessary it was
for the majority to reach the merits of Duarte’s Second
Amendment claim in this case. If forced to decide whether
to apply the plain error or de novo standard of review, I
would easily predict that a majority of this en banc panel
would apply plain error. But in its zeal to reach and broadly
deny Duarte’s Second Amendment claim on the merits, the
majority is happy to simply assume de novo review. That
allows it to announce the broadest of holdings, giving
legislatures effectively unconstrained authority to disarm
entire swaths of our citizenry. Once again we demonstrate
our court’s deep-seated prejudice against a fundamental
constitutional right, and I must respectfully dissent.