United States v. James Bost

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 24-1719 UNITED STATES OF AMERICA v. JAMES BOST, Appellant _____________________________ On Appeal from the U.S. District Court, W.D. Pa. Judge Christy Criswell Wiegand, No. 2:21-cr-00030-001 Before: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, BOVE, MASCOTT, and FISHER, Circuit Judges Argued Before Merits Panel: Apr. 9, 2025; Reargued En Banc: Feb. 11, 2026; Filed: Oct. 13, 2026 _____________________________ OPINION OF THE COURT BIBAS, Circuit Judge, filed the Opinion of the Court except as to Section II.B, with whom CHAGARES, Chief Judge, and HARDIMAN, PORTER, MATEY, FREEMAN, and FISHER, Circuit Judges, join; with whom MONTGOMERY-REEVES, Circuit Judge, joins except as to Section II.B; and with whom MAS- COTT, Circuit Judge, joins Part I, Section II.A, and Part IV.  The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns. He moved to dismiss the charge, arguing that this law is unconstitutional both facially and as applied to him. But Bost’s violent conviction is prima facie enough to dis- arm him. We hold that some predicate crimes (like Bost’s con- viction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone. Because the Second Amendment does not protect Bost’s access to guns, we will AFFIRM. I. BOST’S PRIOR CRIME AND FELON-IN-POSSESSION CONVICTION A. Years after carjacking, Bost is caught with a gun In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother’s home, where she escaped from the car, scream- ing for help. Bost was then arrested and pleaded guilty to ter- roristic threats and criminal conspiracy (as well as false impris- onment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. 18 Pa. Cons. Stat. §§ 2706, 905(a), 1104(1). One element of the terroristic-threats crime required “a threat 2 to commit any crime of violence with intent to terrorize another.” Id. § 2706(a)(1) (cleaned up). Bost was sentenced to four years’ probation. Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend’s home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). 18 U.S.C. § 922(g)(1) (the so-called felon-in-possession law), (j) (posses- sion of a stolen gun). He moved to dismiss the indictment, arguing that § 922(g)(1) is unconstitutional as applied to him and that it is facially unconstitutional. The District Court denied Bost’s motion. It reasoned that his conviction for terroristic threats sufficed to show that he could not be trusted with a gun. And it rejected his facial chal- lenge because he could not show that § 922(g)(1) is unconsti- tutional in every case. He then pleaded guilty, reserving his right to appeal his Second Amendment challenges. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial de novo, as it rested entirely on legal conclusions. United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011). B. Though Bost did not exhaust administrative relief, he did not have to Bost did not pursue administrative relief before bringing this appeal, but that makes no difference. A statute authorizes 3 the Attorney General to restore gun rights to felons who show that they are not dangerous. 18 U.S.C. § 925(c). But that pro- cess has long lain dormant. For decades, Congress refused to fund it. United States v. Williams, 113 F.4th 637, 661 (6th Cir. 2024); United States v. Bean, 537 U.S. 71, 74–75 & n.3 (2002). And even though the Attorney General has at last promulgated final regulations, the process has not yet resumed. In any event, we know of no other context in which a criminal defend- ant must first seek administrative permission before raising a constitutional defense in his criminal prosecution. We will not invent such a requirement here. II. HISTORICALLY, BEFORE DISARMING SOMEONE, COURTS HAD TO MAKE AN INDIVIDUALIZED FINDING THAT HE POSED A RISK OF VIOLENCE The Second Amendment secures the right of “the people” to “keep and bear Arms.” Since felons are part of “the people,” the amendment protects what § 922(g)(1) forbids—a felon’s having a gun. See Range v. Att’y Gen., 124 F.4th 218, 232 (3d Cir. 2024) (en banc) (felons are part of “the people”). So the government must justify this restriction by analogizing to our nation’s historical tradition of gun regulation. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 29 (2022). As Bruen makes clear, the government need not offer a “historical twin,” but only a “well-established and representative historical ana- logue.” Id. at 30. The success of the analogy turns primarily on two questions: why and how the regulation burdens the right. Id. at 29–30. We have already answered the first question. Two years ago, we held § 922(g)(1) unconstitutional as applied to a man 4 with a prior conviction for food-stamp fraud. Range, 124 F.4th at 232. But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of vio- lence to others or that his crime “[was] closely associated with physical danger.” Id. at 230. That aligned with the Supreme Court’s later holding in Rahimi that, under a law banning such people from having guns, someone who poses “a clear threat of physical violence to another” person “may be disarmed.” United States v. Rahimi, 602 U.S. 680, 698 (2024). Accord United States v. Hemani, 146 S. Ct. 1677, 1693 (2026) (sug- gesting that prosecutors may need some proof that a defendant poses a special risk of misusing firearms or “a danger to him- self or others”). In other words, the answer to why is that dis- arming physically dangerous people serves public safety. So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns. Now we ask the second question: how may the law address a risk of violence. That burden encompasses the nature of the restriction imposed, the process used to impose it, and its dura- tion. A panel of our Court ventured an answer to that question last year for a professional gambler. Pitsilides v. Barr, 128 F.4th 203, 212–13 (3d Cir. 2025). But that case is no longer our touchstone. Here, we revisit that inquiry en banc. A. Judges normally found people to pose a risk of violence individually, then disarmed them Historically, there were two paths to disarming people. One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him. The other was categorical: A law targeted a disloyal group that 5 risked violence to the community. In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence. Individualized judgment was the norm. For centuries, dis- armament was tied to a judge’s finding that someone posed a risk of physical violence from misusing guns. Sometimes, that meant punishing risky behavior. Going-armed laws punished and disarmed those who used their weapons to menace others. See Rahimi, 602 U.S. at 693, 697–98 (citing Sir John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686) & 4 William Black- stone, Commentaries *149). Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace: going armed “to the Terror of the People.” Id. at 697 (internal quotation marks omitted). These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence. Id. Other laws, like surety laws, aimed to prevent harm before it happened. Id. at 695–97. If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate. Id. at 696. The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. Id. at 696–97. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. Id. at 695, 697. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. Id. at 695. Either way, the restraint was tailored to the person’s risk. The Supreme Court has blessed modern versions of this model. In Rahimi, it upheld a law disarming someone once a 6 court found that he “represents a credible threat to the physical safety of [his] intimate partner or child.” 18 U.S.C. § 922(g)(8)(C)(i). Rahimi relied on these same traditions: the going-armed and surety laws. 602 U.S. at 695–98. These laws shared a common thread. The justification was public safety, and the mechanism was a court’s judgment about a particular person’s propensity for violence. When a law was punitive, a court required proof that the defendant had engaged in threatening conduct, especially with weapons, before taking those weapons away. When it was preventative, a judge or jus- tice of the peace had to make an individualized finding that someone posed a risk of violence before requiring a bond or temporarily disarming him. Either way, a person could be dis- armed only when a court found that he posed a demonstrated risk of physical violence. B. Categorical bans were narrow, often suspect, and usually rebuttable To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory. Most founding-era bans disarmed political enemies—groups thought capable of collective rebellion. These measures were tied to allegiance and often lifted once the perceived threat passed. Plus, many applied to groups that lawmakers refused to treat as part of “the people” protected by the Second Amend- ment, like slaves and American Indians. Both features mean- ingfully distinguish these historical bans from today’s across- the-board ban on felons. Even so, their procedures for rearma- ment are instructive. Contrary to our dissenting colleague’s argument, rearmament was not automatic. Often, the disarmed 7 person had to make some showing that he no longer posed a risk of violence. Start with the disloyalty-based bans. Dissidents were dis- armed until they proved loyalty. Fearing rebellion, the English Crown barred Catholics from bearing arms because their alle- giance to the Pope supposedly made them “untrustworthy” to Protestant kings. Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting) (quoting Adam Winkler, Gun- fight 115 (2011)); accord Joyce Lee Malcolm, To Keep and Bear Arms 18–19, 122 (1994). The colonies followed suit, dis- arming British Loyalists, Catholics, and seditious libelers when they were thought to threaten the American cause. Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 159–60 (2007) (Loyal- ists); 1 Records of the Governor & Company of the Massachu- setts Bay in New England 211–12 (Nathaniel Bradstreet Shurtleff ed. 1853), https://perma.cc/UV66-9VMC (seditious libelers); United States v. Jackson, 85 F.4th 468, 470–472 (8th Cir. 2023) (Stras, J., dissenting from denial of rehearing en banc) (collecting sources). But members of these groups could still get their guns back. If one was “willing to swear undivided allegiance to the sover- eign,” he no longer posed a threat since he was unlikely to join an uprising. Churchill 157, 159. And some of the English bans protected individual self-defense. In a period of significant tumult, one law targeting Catholics still let them own guns for “defense of his house or person” if deemed necessary by a jus- tice of the peace. Malcolm 123 (quoting 5 The Parliamentary History of England from the Earliest Period to the Year 1803, 8 at 182–84 (London, William Cobbett, ed. 1808–20)) (cleaned up); An Act for Disarming Papists, and Reputed Papists, Re- fusing to Take the Oaths to the Government, ch. 4, §§1–9, 1756 Va. Acts 35, 35–39 (Franklin Press, 1820) (1756), https://perma.cc/3YTR-4HBB. Altogether, the allegiance- based bans seem to have targeted the collective group’s per- ceived threat to the political community. Malcolm 141. Colonial legislatures disarmed American Indians and slaves for similar, sometimes bigoted reasons. See, e.g., Laws Enacted By The First General Assembly of Virginia, in Colonial Ori- gins of the American Constitution 287 (Donald Lutz ed., 1998), https://perma.cc/H7P8-B9ZC (reprinting 1 Journals of the House of Burgesses of Virginia 9–14 (H.R. McIlwaine & John P. Kennedy eds., 1905)) (banning sale or gift of arms or ammu- nition to Indians on pain of death); Act of Mar. 31, 1639, reprinted in Laws and Ordinances of New Netherland, 1638–1674, at 18–19 (Edmund O’Callaghan ed., 1868), https://ti- nyurl.com/mr37wacw (same); see also An Act for Preventing Lending Guns, Ammunition, &c to the Indians, 1723 Conn. Pub. Acts 292, https://perma.cc/E5XL-8D2C; Malcolm 140– 41. But see, e.g., Act of Dec. 17, 1792, ch. 41, § 9, reprinted in Shepard, 1 Statutes at Large of Virginia 123 (1835) (providing that “every free negro or mulatto, being a housekeeper, may be permitted to keep one gun, powder, and shot”). Those laws, too, tracked fears that the collective group posed a danger. One law barring arms trade with Indians was a direct response to the violent uprising of a well-armed tribe. Malcolm 140 (citing Forrest McDonald, Novus Ordo Seclo- rum: The Intellectual Origins of the Constitution 74 (1985) & John Trenchard, An Argument Shewing that a Standing Army is 9 Inconsistent with a Free Government, and Absolutely Destruc- tive to the Constitution of the English Monarchy 114–15 (Lon- don, 1697)). And laws disarming slaves and freedmen varied with each colony’s reliance on slave labor, since more slaves meant that colonists perceived more risk. Malcolm 141. By limiting access to guns, these laws prevented organized vio- lence by the groups and “confirmed their status as outsiders and inferiors.” Id. Rearmament for members of these groups was uneven. One colony let non-hostile Indians trade arms, but others did not. Trade with Indians, in The Colonial Laws of Massachusetts 240, 240–41 (1889) (1672). And for black Americans, disarma- ment became more common over time. Though they were not universal, bans aiming to disarm freedmen spread. See, e.g., Act of Nov. 1806, in 3 The Laws of Maryland 298 (Virgil Maxcy ed., 1811); An Act to Prevent the Use of Fire Arms by Free Negroes and Free Mulattoes and for Other Purposes, in Laws of the State of Delaware ch. 176, at 180. But see, e.g., Stephen Halbrook, The Founders’ Second Amendment 166 (noting that as of 1798, Rhode Island had not “restricted the right to keep and bear arms” by law, even for the “Native Amer- ican or slave”). Even then, there was often a path back: In some states, a freedman could reclaim his arms if his neighbors or a justice of the peace certified that he was “peaceable” or “of fair charac- ter.” Act of Nov. 1806, 3 The Laws of Maryland 298; Joseph G.S. Greenlee, Disarming the Dangerous: The American Tra- dition of Firearm Prohibitions, 16 Drexel L. Rev. 1, 28 (2024). Despite discriminatory aims, these laws still reflected an 10 understanding that arms restrictions turned on perceived dan- gerousness, not status alone. A few outlier laws turned on legislative judgments about the propensity for violence by individuals within a category, rather than political judgments about the group as such. In the mid-nineteenth century, some states barred so-called “tramps” or vagrants from having guns because they were thought to have a propensity for violence. See State v. Hogan, 58 N.E. 572, 574–76 (Ohio 1900) (collecting state laws). But interpret- ing one of these laws, the Ohio Supreme Court still rested on a notion of allegiance, calling tramps “public enem[ies]” outside the social and political order as well as physically dangerous. Id. at 574. And these post-founding laws shed little light on founding-era meaning. See Lara v. Comm’r, Pa. State Police, 125 F.4th 428, 441 (3d Cir. 2025). So for the most part, courts had to decide whether individ- uals posed a risk of physical violence before disarming them. As a rule, categorical bans rested on a group’s allegiance or exclusion from the political community, not on individuals’ violent tendencies. So these categorical bans are not analo- gous. And even laws that swept broadly left room for individ- uals to rebut their presumed risk of violence and reclaim their rights. Rearmament was not automatic; often, the disarmed person first had to show that he no longer posed a danger. III. BOST’S VIOLENT CONVICTION SUFFICES, AT THIS EARLY STAGE, TO SHOW HIS RISK OF VIOLENCE As-applied challenges let courts do what they have long done: decide who poses a risk of physical violence from mis- using guns. But modern procedure must mirror historical 11 limits. Not every crime proves a risk of physical violence. And the stage of the case may dictate the kinds of evidence that courts may consider in assessing that risk. Start with the threshold question: Does the underlying crime show a risk of physical violence? On a motion to dismiss, we engage in “a narrow, limited analysis geared only towards ensuring that legally deficient charges do not go to a jury.” Ber- grin, 650 F.3d at 268. Thus, courts must look only at the pred- icate crime that supports the § 922(g)(1) prosecution in the first place. At least when a crime has violent or threatening ele- ments, the conviction itself is analogous to the historical bases to fear physical violence. With the going-armed laws, disarma- ment followed a judicial finding that the defendant had com- mitted a crime that posed such a risk. So too today, the govern- ment may show that a felon’s predicate crime involves physical violence or the risk of it, thus justifying disarmament. It bears the burden of justifying disarmament based on the predicate crime alone—that is, of showing that the defendant falls within the category of people who risk causing physical violence. (Here, the elements of the predicate crime are sufficient; we need not decide whether they are necessary or whether the facts admitted by a defendant, found by a jury, or supported by the weight of other evidence may also be considered.) Once the government alleges an adequate predicate, it has carried its bur- den to support a § 922(g)(1) indictment at this early procedural stage. This framework tracks history. At the founding, disarma- ment usually followed a judicial finding of a risk of physical violence. Convictions could supply that finding, but only when the predicate crime itself signaled such a risk. 12  Although we need not catalogue which predicate crimes show a risk of physical violence from misusing guns in and of themselves, we can say that judges are well-suited to drawing those lines. Trial judges already assess risks of violence every day: at bail, sentencing, and on supervised release, where they weigh protecting the public and often order defendants not to have guns. See Jackson, 85 F.4th at 478 (Stras, J., dissenting from denial of rehearing en banc) (citing 18 U.S.C. §§ 3142(b), 3553(a)(2)(C), 3563(b)(8), 3583). Some predicate crimes speak for themselves. Violent of- fenses, like common-law murder, forcible rape, and common- law robbery, mark a person as such. And the going-armed laws disarmed people whose conduct was threatening. These types of convictions suffice to justify disarmament. We do not require that the predicate violent or threatening crime itself involved guns or the threat of guns. Unarmed forcible rapes, for instance, can qualify. Other predicate crimes speak for themselves in the other direction: They are not even physically dangerous, let alone violent. See, e.g., Range, 124 F.4th at 230–31. There may perhaps be a third, intermediate category: Still other predicate crimes may be closer calls. Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify dis- armament depends on their own historical analogies. So at either end of the spectrum, the predicate crime tells the court enough about the felon’s risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the mid- dle, it is possible that courts may have to draw more lines. But 13 if so, we need not draw them today. Bost was convicted of ter- roristic threats. The elements of that predicate crime included “a threat to commit any crime of violence with intent to terror- ize another.” 18 Pa. Cons. Stat. § 2706(a)(1) (cleaned up). The Shepard documents confirm that he was convicted under that subsection. See Shepard v. United States, 544 U.S. 13, 16 (2005). That conduct fits squarely within the historical tradi- tion of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace. Bost’s indict- ment is sufficient as a matter of law. And at this early stage, a court may dismiss only if the predicate conviction is insuffi- cient as a matter of law to put the defendant into the category of persons who pose a risk of physical violence from misusing guns. We need not address what, if anything, could later take a defendant out of that category. IV. BOST’S REMAINING CLAIMS FAIL TOO Though Bost also raises a few more challenges, none suc- ceeds. He claims that § 922(g)(1) is unconstitutional on its face. We have explained why Bost himself may be disarmed, doom- ing his facial challenge. Bost must “establish that no set of cir- cumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Under that stand- ard, Rahimi upheld § 922(g)(8)(C)(i) as facially constitutional because it could properly apply to Rahimi himself. 602 U.S. at 693, 700. The same is true here. That said, the Supreme Court has not squarely addressed a statute that disarms a whole cate- gory of people without requiring a judge to determine who falls within that class. Cf. Kanter, 919 F.3d at 465 (Barrett, J., 14 dissenting) (suggesting that categorical bans may call for greater scrutiny). But we will stick with the long-established standard for facial challenges. Relatedly, Bost says § 922(g)(1) is unconstitutionally vague because an as-applied approach leaves people guessing whether they count as people who pose a risk of violence. Not so. A law is vague only if it fails to give ordinary people fair notice or invites arbitrary enforcement. United States v. Wil- liams, 553 U.S. 285, 304 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). Section 922(g)(1) is clear: Those con- victed of crimes punishable by more than a year may not have guns. A person might debate whether he is “responsible,” but here he knows whether his conviction fits the statutory lan- guage. Cf. Rahimi, 602 U.S. at 701 (rejecting the “responsible” citizen standard for disarmament). And on any test, Bost’s ter- roristic-threats conviction qualified; there was no reason to doubt that. Next, though Bost raises a Commerce Clause objection, he acknowledges that precedent forecloses that claim. United States v. Singletary, 268 F.3d 196, 205 (3d Cir. 2001). We will not disturb that precedent in this case. Finally, Bost claims that § 922(j)’s ban on stolen guns is un- constitutional as applied to him, but it is not. The Second Amendment protects the right to keep and bear arms, not to have stolen property. The original colonies long punished those who bought, got, or stored stolen goods, with no carveouts for arms. See, e.g., Acts and Laws of His Majesty’s Province of New Hampshire, in New England 15–16 (1761), https://ti- nyurl.com/y6e52vta (1714 law); 2 Laws of the State of New 15 York Passed at the Sessions of the Legislature Held in the Years 1785, 1786, 1787 and 1788, Inclusive 668 (1886) (1788 law), https://tinyurl.com/4adv3mc7; 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 273 (1820), https://ti- nyurl.com/7zxeek5n. “We are aware of no evidence that fire- arms have ever been exempt from such regulations.” United States v. Gore, 118 F.4th 808, 812–13 (6th Cir. 2024) (rejecting facial challenge to § 922(j)). Without any such authority, Bost’s challenge fails. ***** History answers both why the government may disarm and how. It may disarm someone when a judge finds that he poses a risk of physical violence from misusing guns. That finding is built in when a defendant is convicted of a violent crime—so disarming him fits our tradition. Yet when the predicate crime does not show even a risk of physical violence in the first place, the government cannot go on a fishing expedition, requiring him to disprove his own risk of violence. It must provide a dif- ferent analogy. But Bost was convicted of threatening others with physical violence. And violent convicts like him may prima facie be disarmed. We will thus AFFIRM. 16 SHWARTZ, Circuit Judge, concurring in the judgment, with whom KRAUSE and RESTREPO, Circuit Judges, join. I agree with the Majority that James Bost’s felony conviction for terroristic threats makes him ineligible to possess a firearm under 18 U.S.C. § 922(g)(1) and that his motion to dismiss the indictment based on a violation of the Second Amendment fails. I also agree with the Majority that the District Court correctly denied his motion to dismiss the charge under 18 U.S.C. § 922(j) for possession of a stolen firearm because our regulatory history bars the possession of stolen property of any sort, which includes stolen handguns. I write separately to emphasize my view that § 922(g)(1) constitutionally bans all felons from possessing firearms under Supreme Court precedent, history, and due process. Although the Majority embraces the principle that only felonies that pose a risk of physical violence from misusing guns are disarming (which is even narrower than the disqualifying crimes contemplated in Range v. Attorney General, 124 F.4th 218, 232 (3d Cir. 2024) (en banc) (“Range II”)), the Supreme Court has not so held.1 Instead, it has thrice observed that bans on felon possession are “longstanding” and thus presumptively lawful. District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“[N]othing in our opinion should be 1 Indeed, the Majority’s definition of disqualifying felony, namely, one that demonstrates that an individual poses a risk of physical violence from misusing guns, does not appear tethered to any historical analogues. There are plenty of analogues that disarm those who use force to commit a felony, but there is no evidence that the principle to be gleaned from these analogues is that only felonies involving force are disarming. 1 taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .”); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (same); United States v. Rahimi, 602 U.S. 680, 699 (2024) (same); see also N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 80-81 (2022) (Kavanaugh, J., concurring) (reiterating that Heller and McDonald recognized “longstanding prohibitions on the possession of firearms by felons”); United States v. Hemani, 608 U.S. ___, 146 S. Ct. 1677, 1700 (2026) (Alito, J., concurring in the judgment) (repeating that “prohibitions on the possession of firearms by felons . . . are . . . presumptively lawful” (citations and internal quotation marks omitted)).2 The 2 Several of our sister circuits have also rejected a danger-based limitation. See Zherka v. Bondi, 140 F.4th 68, 77 (2d Cir. 2025) (holding that § 922(g)(1) is constitutional regardless of whether the underlying conviction was violent or dangerous); United States v. Hunt, 123 F.4th 697, 707 (4th Cir. 2024) (“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.”), cert. denied, 145 S. Ct. 2756 (2025); United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024) (concluding that “history supports the authority of Congress to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society” regardless of whether those persons were also deemed individually dangerous), cert. denied, 145 S. Ct. 2708 (2025); Vincent v. Bondi, 127 F.4th 1263, 1266 (10th Cir. 2025) (“[T]he Second Amendment doesn’t prevent application of § 922(g)(1) to nonviolent offenders . . . .”). 2 presumptive legality of such a ban is consistent with our history.3 See, e.g., Range v. Att’y Gen., 69 F.4th 96, 114 (3d Cir. 2023) (“Range I”) (en banc) (Shwartz, J., dissenting) (explaining “that felon bans are consistent with our historical tradition”); Range II, 124 F.4th at 253 (Krause, J., concurring) (“[L]egislatures dating back to the Founding had the authority to disarm not just ‘physically dangerous’ felons, but a wide range of groups considered to present a special danger . . . .”). As a result, the felon ban in § 922(g)(1) constitutionally applies to all felons and is not limited to individuals convicted of crimes that pose a risk of danger from misuse of firearms.4 3 Section 922(g)(1) does not result in permanent disarmament because (1) the statute expressly exempts those who received pardons, have had their convictions expunged or set aside, or have had their civil rights restored, 18 U.S.C. § 921(a)(33)(B)(ii), and (2) § 925(c) has been reinvigorated and provides a mechanism for an individual to seek relief from the Attorney General from the ban if he is satisfied that the individual does not present a danger to himself or others, and that rearming him is in the public interest. In fact, § 925(c) provides more relief than is obtainable in a criminal case, as a motion to dismiss the criminal case yields a dismissed indictment but does not alone result in rearmament. There is historical support for permanent disarmament. For example, before and at the founding, those who would not swear an oath of loyalty to the sovereign were banned from possessing firearms. United States v. Aleman- Lozano, No. 25-3012, -- F.4th --- (3d Cir. Sept. 1, 2026). 4 The analysis in this case could stop here, as it is undisputed that Bost was convicted of a felony. 3  Besides being unnecessary to ensure that § 922(g)(1) is constitutionally applied, the risk-of-physical-violence-from- the-misuse-of-a-firearm carveout the Majority announced presents serious due process concerns. See Binderup v. Att’y Gen., 836 F.3d 336, 409-10 (3d Cir. 2016) (en banc) (Fuentes, J., concurring in part, dissenting in part, and dissenting from the judgments); Range I, 69 F.4th at 116 (Shwartz, J., dissenting); Range II, 124 F.4th at 281-82 (Krause, J., concurring). In enacting § 922(g)(1), Congress disarmed those with a felony or felony-equivalent conviction.5 18 U.S.C. § 922(g)(1); see id. § 921(a)(20) (further defining “crime punishable by imprisonment for a term exceeding one year”). By its terms, the statute provides individuals clear notice of whether their firearm possession violates federal law based on the maximum statutory penalty they faced for their prior conviction. This structure eliminates the vagaries of the Majority’s test, which requires determining whether the crime of conviction would be deemed to pose a risk of physical violence from misusing a firearm based on only the predicate offense. The Majority fails to provide sufficient notice to individuals as to whether their conviction is disarming. For 5 The ban under § 922(g)(1) applies to individuals “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). “The term ‘crime punishable by imprisonment for a term exceeding one year’ does not include . . . any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or . . . any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20). 4 example, although the Majority’s examples of common-law murder, forcible rape, and common-law robbery are apparently disarming, and each could be committed with a firearm, a firearm is not required for a conviction. Similarly, there are crimes one judge may think present the risk of physical violence from the misuse of a gun, like drug distribution, that another could conclude does not because physical force is not an element of the offense. Thus, the Majority’s test does not provide guidance for an individual to know if his conviction is disarming. In fact, the Majority does not even decide whether consideration of a predicate offense is limited to its elements, or may also include the facts of conviction, creating even greater uncertainty for defendants and district courts alike. Because it is unclear whether a particular crime would be found to pose a risk of physical violence from misusing firearms, the Majority’s carveout does not satisfy the due process requirement of giving an individual notice that the conduct violates the law.6 See Grayned v. City of Rockford, 408 U.S. 6 Although the Majority correctly observes that trial judges regularly assess risks of violence in making bail and sentencing decisions, these decisions involve consideration of the individual defendant’s history and characteristics. See 18 U.S.C. § 3553(a)(2) (requiring sentencing judge to consider “the need for the sentence imposed. . . to protect the public from further crimes of the defendant”); id. § 3142(g)(3) (requiring judicial officers making a bail determination to consider “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release” in “determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community”). The Majority’s approach, however, permits 5 courts to consider only whether the predicate crime reflects a risk of physical violence from misusing guns. Thus, the fact- based contexts of bail and sentencing do not fit where a court is limited to considering only the predicate offense. Moreover, the Majority now asks district courts to make an altogether new determination: whether an individual presents a risk of dangers or “physical violence” specifically “from misusing firearms,” without meaningful guidance on how that assessment differs from familiar bail, sentencing, or supervision decisions. As the Majority thinks that these analyses are similar, district courts are likely to give weight to our words in inconsistent ways, hindering uniformity across our Circuit. Furthermore, the Majority’s predicate offense approach is inconsistent with Rahimi, where the Supreme Court made clear that the Second Amendment does not require courts to ignore evidence of an individual’s dangerousness in deciding whether he has a right to possess a firearm. See Rahimi, 602 U.S. at 698 (explaining that history “confirm[s] what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed”). One interpretation of the Majority’s approach could also lead to the following situation. Assume the defendant has a prior felony conviction for bank fraud and the facts show that, when executing a warrant to arrest him for the bank fraud, law enforcement found a “hit list” and firearms. Further assume that after the defendant completes his bank fraud sentence, he is found with a firearm and another hit list and charged as a felon in possession of a firearm in violation of § 922(g)(1). There is no doubt that at the bail hearing on that charge a magistrate judge could conclude that the defendant poses a risk of danger to the community based on the evidence found 6 104, 108 (1972) (“[A] person of ordinary intelligence [must have] a reasonable opportunity to know what is prohibited, so that he may act accordingly.”). In addition to these due process concerns, the Majority’s failure to provide a viable framework, including its silence on whether consideration of the elements of the offense of conviction are just sufficient or also necessary, will lead to chaos in the district courts, where, in the absence of this critical guidance, judges will be deprived of a meaningful first opportunity to determine whether a given individual was convicted of a disarming offense.7 Because Bost was a convicted felon at the time he possessed the firearm, and the longstanding bans on felons possessing firearms are consistent with our history and tradition of permitting legislatures to make categorical disarmament decisions based on their assessments of dangerousness, barring Bost from possessing a firearm does not violate the Second Amendment. during the bank fraud case but, under the Majority’s test, his felon in possession charge would be ripe for dismissal because the elements of his predicate bank fraud conviction do not convey a risk of physical danger based on misusing guns. Thus, under the Majority’s test, despite evidence he presents a danger, he cannot be disarmed under § 922(g)(1). 7 These due process concer