Edward Williams v. Attorney General United States of America

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 24-1091 EDWARD A. WILLIAMS V. ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR BUREAU OF ALCOHOL TOBACCO FIREARMS & EXPLOSIVES; DIRECTOR FEDERAL BUREAU OF INVESTIGATION; UNITED STATES OF AMERICA, Appellants _____________________________ On Appeal from U.S. District Court, E.D. Pa. Judge John M. Younge, No. 2:17-cv-02641 Before: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, CHUNG, BOVE, and MASCOTT, Circuit Judges. Argued Feb. 11, 2026 Decided Oct. 13, 2026 ____________________________ OPINION OF THE COURT MATEY, Circuit Judge, filed the Opinion of the Court with whom HARDIMAN, BIBAS, PORTER, PHIPPS, BOVE, and MASCOTT, Circuit Judges, join. CHAGARES, Chief Judge concurs in part and concurs in the judgment with whom KRAUSE, Circuit Judge, joins as to Parts I and II and with whom FREEMAN, Circuit Judge, joins as to Parts I and III. FREEMAN, Circuit Judge, concurs in part with whom MONTGOMERY-REEVES and CHUNG, Circuit Judges, join. The Second Amendment is a primary protection against tyranny, a strong bulwark securing American liberty, and an indispensable means of defending the public good. So courts testing restrictions on these “most sacred” and “necessary” rights must consider the history and tradition of firearm regulations with care and rigor.1 Edward Williams had two convictions for driving under the influence of alcohol in the early 2000s, the second of which (unbeknownst to him) triggered 18 U.S.C. § 922(g)(1), which purports to make it “unlawful” for persons convicted of “a crime punishable by imprisonment for a term exceeding one year” to possess firearms. Seeking to restore his rights, Williams filed for a declaratory judgment to confirm that § 922(g)(1), as applied to him, runs afoul of the Second Amendment. The District Court agreed with Williams, and we will affirm that judgment. I. The practice of permanently disarming felons only dates back to the 1960s.2 As currently written, 18 U.S.C. § 922(g)(1) applies to anyone convicted of a crime punishable by more than a year of imprisonment.3 Williams fell within this federal bar by driving under the influence in Pennsylvania. Pennsylvania sets three “levels of impairment” based on alcohol consumption before operating a vehicle: “[g]eneral impairment” involves a blood alcohol concentration (BAC) of 0.08% to less than 0.10%; “[h]igh rate of alcohol,” a BAC of 1 See James Monroe, Second Annual Message to Congress (Nov. 16, 1818). 2 See The Federal Firearms Act, Pub. L. No. 75-785, § 2(f), 52 Stat. 1250, 1251 (1938); An Act To Strengthen The Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961). 3 With some narrow exceptions. For instance, “[a]ny [predicate] conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored” cannot support the prohibition. 18 U.S.C. § 921(a)(20). Similarly, 18 U.S.C. § 925(c) creates a recently revived (and still rarely received) administrative restoration process, initiated by filing an application to the Attorney General, who “may grant . . . relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” See infra Part III.B.3. 2 0.10% to less than 0.16%; and “[h]ighest rate of alcohol,” a BAC of 0.16% or higher. See 75 Pa. C.S. § 3802(a)–(c). If a person commits a second DUI offense at the “[h]ighest rate of alcohol,” the crime is punishable by a minimum term of imprisonment of three months and a maximum term of five years. See id. §§ 3802(c), 3803(b)(4), 3804(c)(2); 18 Pa. C.S. §§ 106(b)(6), 1104(1). In 2000, Williams was charged with driving with a BAC of more than 0.10%, that is, a “high rate of alcohol.” He entered Pennsylvania’s Accelerated Rehabilitative Disposition program and attended alcohol and driver safety classes. In 2004, Williams was arrested and, in 2005, convicted for driving at the “[h]ighest rate of alcohol,” a crime that, because of his prior offense, was punishable by up to five years in prison. See 75 Pa. C.S. § 3803(b)(4); 18 Pa. C.S. §§ 106(b)(6), 1104(1). But Williams was sentenced to between ninety days and two years, which he served in home confinement.4 Williams continued to own and possess firearms during and after his sentence and worked at a gun store where he handled firearms. 5 Once he finished his sentence, Williams purchased a new firearm without disclosing his DUI conviction.6 But in 2015, Williams’s attorney informed him he was prohibited from possessing firearms because of the DUI conviction. So advised, Williams “divested himself of all 4 He was also fined, required to attend alcohol and driver’s safety classes, had his license suspended for eighteen months, and had an ignition interlock installed on his vehicle. 5 The Bureau of Alcohol, Tobacco, Firearms and Explosives conducted a background check on Williams and cleared him to work at the store. 6 In paragraph thirty-two of the Pennsylvania State Police Application/Record of Sale, Williams answered, “no” when asked, “[a]re you charged with, or have you ever been convicted of a crime punishable by imprisonment for a term exceeding one year? This is the maximum sentence that you ‘could have received,’ not the actual sentence you did receive.” App. 18. 3 firearms” and “refrained from purchasing, possessing and utilizing firearms.” Williams Response Br. 7–8; App. 57. Williams then sought a declaration that § 922(g)(1) was unconstitutional, as applied to him, under the Second Amendment and an injunction against enforcement. Both parties eventually moved for summary judgment, and the District Court granted Williams’s motion, a decision the United States now appeals.7 II. Regulations on firearms can be separated into three categories: restrictions on people, places, and things. See District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). We aim for “the principles that underpin our regulatory tradition,” not for a superficial canvassing of history, so a deep understanding of which category of regulation we address is crucial. United States v. Rahimi, 602 U.S. 680, 692 (2024). “[I]t has always been widely understood that the Second Amendment . . . codified a pre-existing right.” Heller, 554 U.S. at 592. As a corollary, laws extensively regulating the types of firearms a person can possess and the places where possession is permitted can “eviscerate the general right to publicly carry arms for self-defense.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 31 (2022); see also Heller, 554 U.S. at 636. The Second Amendment thus recognizes a robust right to bear arms within civil society that can rarely be 7 The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. We ordered rehearing en banc and allowed the parties to brief “[w]hether a court may consider evidence beyond an individual’s predicate conviction(s), including, for example, other criminal convictions or conduct post-dating the predicate conviction” when assessing a plaintiff’s as-applied challenge to § 922(g)(1) seeking declaratory relief. Dkt. No. 67. Our review is plenary. See Jorjani v. N.J. Inst. of Tech., 151 F.4th 135, 140 n.5 (3d Cir. 2025). 4 circumvented by the sovereign. Put simply, things and places cannot be casually conscribed. A different principle informs regulations about people. Regulations concerning what types of firearms a person may carry and where a person may carry apply uniformly. But, necessarily, regulations on who may carry require an individualized inquiry addressing present threats to the community with “punishments inflicted by temporal laws” that “deprive [offenders] of any power to do future mischief.” 4 William Blackstone, Commentaries *252 [hereinafter Blackstone]. After all, “the end or final cause of human punishments” is “a precaution against future offences of the same kind.” Id. at *11; see also The Unsigned Essays of Supreme Court Justice Joseph Story: Early American Views of Law 98 (Valerie L. Horowitz ed., 2015) (“The object of human punishments” includes “depriving the offender of the power of doing mischief” in order “to secure the safety of the community.”). Upon this foundation of punishment rests the history of regulations disarming physically dangerous individuals consistent with the pre-existing right. Focusing on physical dangerousness corrects the erroneous argument, rejected in Rahimi, that only law-abiding and responsible citizens can exercise the rights protected by the Second Amendment. 602 U.S. at 701; see also Range v. Att’y Gen., 124 F.4th 218, 226 (3d Cir. 2024). We find no history that supports disarming irresponsible people, where “responsible” is defined by the whim of the sovereign or the will of the majority. But Heller did not “cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. Those longstanding customs restricted the violently dangerous (within which some felons would be included), not felons writ large. See Range, 124 F.4th at 230–31. That felons were restricted because they posed a physical danger, rather than for their offense of conviction, is made evident by other “people” regulations directed at non- felons. Take the going-armed laws and surety system, which illustrate the longstanding idea that liberty cannot be used for lawless violence. Rahimi, 602 U.S. at 695–97. Or our English forebears, who deprived arms from individuals suspected of 5 treason or sedition against the Crown.8 This reveals an important limit on the right to arms for self-defense: a sovereign may disarm classes of people who pose a true risk of sedition or treason because doing so promotes the public peace and the common good. Properly distilled, these and other regulations on people reveal a tradition of disarming those determined to use firearms to threaten civil society. See United States v. Bost, __ F.4th __, No. 24-1719, at 4–11 (3d Cir. Oct. 13, 2026). This accords with our understanding of the Second Amendment, which codified a pre-existing right to bear arms for self-defense but, “[l]ike most rights, . . . is not unlimited.” Heller, 554 U.S. at 626. As a result, regulators can disarm those who pose a risk of harm to civil society. But the regulator is not justified if the restriction goes beyond that principle. If past regulations of the same conduct were not concerned with preventing arms violence, they addressed that problem in a materially different way, or if the targeted individual does not currently pose a threat of violence, that indicates the regulator has gone too far. Those considerations are at the heart of this matter. III. Bruen contemplates “two distinct analytical steps.” Lara v. Comm’r Pa. State Police, 125 F.4th 428, 435 (3d Cir. 2025). “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Bruen, 597 U.S. at 17. Call that “Step One.” Then, “[t]o justify its regulation, the government . . . must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation,” and it “may not 8 For instance, Protestants and Catholics were each disarmed at points because they were presumed disloyal to the King. See, e.g., The Somers Papers, reprinted in 2 Miscellaneous State Papers from 1501–1726, at 407, 417– 18 (W. Strahan & T. Cadell eds., 1778); Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285, 304–05 (1983); An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1689). 6 simply posit that the regulation promotes an important interest.” Id. That’s the enigmatic “Step Two.” A. Step One simply asks whether the Second Amendment is relevant at all. It applies only to “the people” and to arms that they can “keep and bear.” U.S. Const. amend. II. So we first consider whether those who have completed a sentence for a crime punishable by more than one-year imprisonment remain part of “the people.” “Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.” Rahimi, 602 U.S. at 699. Rather, it acknowledged “that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” Id. (citation omitted). But we have “reject[ed] the Government’s [prior] contention that ‘felons are not among “the people” protected by the Second Amendment.’” Range, 124 F.4th at 228. Indeed, “[t]he Second Amendment protects the right of ‘all Americans.’” United States v. Hemani, 146 S. Ct. 1677, 1685 (2026) (quoting Heller, 554 U.S. at 581). Williams is a citizen, so he satisfies that portion of Step One. The text of the Amendment also applies to bearable arms, not every imaginable weapon. Certain types of arms may well fall outside the Second Amendment’s ambit—think large cannons, unmanned aerial vehicles, and nuclear weapons. See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 183 F.4th 211, 233 (3d Cir. 2026). But Williams only wants to “possess a handgun and/or a long gun to defend [his] family and [him]self within [his] home.” App. 58. These goals are squarely within the text and purpose of the Second Amendment. See Range, 124 F.4th at 228 (holding someone who “possess[es] a rifle to hunt and a shotgun to defend himself at home [] tracks the constitutional right as defined by Heller”); Heller, 554 U.S. at 635 (holding a “ban on handgun possession in the home violates the Second Amendment”). Williams easily satisfies both parts of Step One. B. 7  A familiar path follows. If the individual is among “the people,” and the weapon he seeks to possess is a “bearable arm,” then he is presumed to enjoy the liberty protected by the Second Amendment. But that presumption can be challenged, since the Amendment is not without limit.9 So we assess whether the regulation’s proponent has demonstrated that “the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. Of course, since the liberty ensured by the Second Amendment is from state action, the state “bears the burden to ‘justify its regulation.’” Id. at 691 (quoting Bruen, 597 U.S. at 24). That raises two further questions: a) was the present limitation customarily grounds for temporary exclusion and b) what is the best analogy between customary restrictions and the person’s conduct? Both are necessary to avoid the error of overly broad or underinclusive comparisons. 1. We start by asking the regulator whether its proposed liberty definition (or restriction, though every definition has some contracting element) is consistent with tradition. In assessing the response, we look for a custom of similar definitions. A definition fitting within common and longstanding firearm regulation helps the regulator because long acceptance evidences noninfringement of the right. In contrast, it is likely impossible to show equivalence when the challenged restriction applies to people, places, and things that have gone unregulated for most of America’s existence. See Bruen, 597 U.S. at 26. Time is essential, and a recent innovation must be weighed against our “Anglo-American common-law 9 We must use straightforward “common-law method[s]” to help “untangle the right to keep and bear arms— that is, the legal claim individuals have against the government not to regulate arms in certain ways—from the mere liberty that early Americans had to possess and carry all sorts of weapons (including some that the Framers may not have recognized as constitutionally protected).” William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467, 1493, 1497 (2024). 8 tradition.” Washington v. Glucksberg, 521 U.S. 702, 711 (1997). An enduring custom since the founding is all but dispositive—one would be hard-pressed to argue that a state can prohibit the purchase of a flintlock musket. The same framework applies with respect to permissible regulations of people: if a regulation was common throughout our history, that is strong evidence that it does not infringe the right. That is not the case here given the novelty of forever restricting all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first made it “unlawful” for “any person who has been convicted of a crime of violence or is a fugutive [sic] from justice” to possess a firearm. See Pub. L. No. 75-785, § 2(f), 52 Stat. 1250, 1251 (1938).10 In 1961, Congress expanded this prohibition, abandoning a focus on violence in favor of a technical bar on any person convicted of a “crime punishable by imprisonment for a term exceeding one year.” See Pub. L. No. 87-342, §§ 1– 2, 75 Stat. 757, 757 (1961). By this point, “a crime punishable by imprisonment for more than one year” was the common approximation for “felony.” See Burgess v. United States, 553 U.S. 124, 130 (2008).11 The late entrance of a regulation tying felonies to gun possession disproves any longstanding customary contraction of the liberty codified in the Second Amendment. Of course, common exclusions from society—which do not explicitly touch on arms-bearing—might sometimes, but not always, reveal that a regulation of an individual is 10 A “crime of violence” was defined in the Act to mean “murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.” See Pub. L. No. 75-785, § 1(6), 52 Stat. 1250, 1250 (1938). 11 See also 18 U.S.C. § 1(1) (1964) (repealed 1984) (“Any offense punishable by death or imprisonment for a term exceeding one year is a felony.”); 18 U.S.C. §§ 3559(a)(1)–(5) (2024) (defining classes of felonies ranging from “more than one year” to “life imprisonment”). 9 consistent with the reasoning offered by the regulator. Take classic felonies like murder and rape, long punishable by death. See McGautha v. California, 402 U.S. 183, 197–98 (1971), vacated on other grounds by Crampton v. Ohio, 408 U.S. 941, 941–42 (1972); 4 Blackstone *210–11, *215. Those statutes evidence a regulatory custom of indirect disarmament since a “sentence of death” left the person “already dead in law” and “out of its protection.” 4 Blackstone *380. So too when those same offenses resulted in life imprisonment, life servitude, or civil death.12 Punishments for crimes belonging to this 12 Capital punishment was long considered to include both physical and civil death. Samuel Hallifax, Elements of the Roman Civil Law 110 (1818) (“Punishments of Natural or Civil Death were called Capital: others, short of Natural or Civil Death, were called Not-Capital.”). Civil death refers to those who were “banished or abjured the realm by the process of the common law,” and were thus left “dead in law” because the “laws would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations.” 1 Blackstone *132. “In medieval Europe, the legal doctrine of ‘civil death’ not only resulted in a complete loss of citizenship rights, but also it left offenders, in extreme cases, exposed to injury or death, since they could be killed by anyone with impunity. English law continued this tradition of disenfranchisement with the penalty of attainder, which in extreme applications led to the loss of all civil rights.” Jeff Manza & Christopher Uggen, Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United States, 2 Perspectives on Pol. 491, 492 (2004). Still, “death and maiming, were the ordinary penalties for serious crime in the Western legal systems in the later Middle Ages.” John H. Langbein, The Historical Origins of the Sanction of Imprisonment for Serious Crime, 5 J. Legal Stud. 35, 36 (1976). But beginning in the seventeenth century, England put fewer people to death “because of the development of an alternative to the blood sanctions: transportation of convicts for terms of labor as indentured servants in the overseas colonies.” Id. at 54. And in the eighteenth century, some criminal codes “completely abolished capital punishment,” replacing it with “confinement, sometimes at hard labor for terms up to life.” Id. at 37. 10 unbroken custom were justly predicated on the protection of the community from prospective physical danger.13 Financial crimes carrying equally harsh punishments at transient moments in history, like the ones we considered in Range, do not share these crucial characteristics. 124 F.4th at 230–31. But the Justice Department’s apparent attempt to broaden discrete crimes justly punished by death to include all felonies, much less all crimes punishable by more than one- year imprisonment, misses the point. The word “felony” has roots in mortal sin.14 But as time passed, felony’s substance was lost, as it came not to be defined by the character of the wrongdoer, but by the potential punishment. By Blackstone’s 13 Justice Story justified capital punishment as most effectively guarding “[t]he safety of society” by cutting off the offender from “the power of doing further mischief” because “[i]f his life be not taken away, the only other means left are, confinement for life, or transportation and exile for life,” which are not “a perfect security against the commission of other crimes, and may not always be within the power of a nation.” The Unsigned Essays of Supreme Court Justice Joseph Story: Early American Views of Law 102 (Valerie L. Horowitz ed., 2015). He acknowledged that beyond “crimes of very great enormity, and danger to individuals or the state . . . it is extremely questionable whether there is any necessity or expediency of applying so great a severity.” Id. at 103–04. Even those at the vanguard of limiting capital punishment admitted to its staying power in cases of murder because, in such cases, capital punishment preserved the lives of innocents. See William Bradford, An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania 6–7, 35 (London reprint, 1795). 14 See Elizabeth Papp Kamali, Felonia Felonice Facta: Felony and Intentionality in Medieval England, 9 Crim. L. & Phil. 397, 400–01, 411 (2015) (“In both Middle English and Anglo Norman . . . . ‘felony’ was used to reference sin or crime in a general sense,” including “ideas such as evil or wickedness, even when used in legal sources,” because “long- cherished ire or felony of heart was a mortal sin that transformed a person from the image of God to the image of the devil.”). 11 age, it was a crime punishable by death, encompassing “no less than a hundred and sixty [offenses].” 4 Blackstone *18. More recently, commentators have given up trying to apply any independent, substantive meaning to “felony,” admitting that it means whatever the legislature says it means. “[F]elony . . . has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is now impossible to know precisely in what sense we are to understand this word.” 6 Nathan Dane, General Abridgment and Digest of American Law 715 (1823).15 These sources reveal that the modern regulatory label of felony—a crime punishable by more than one year of imprisonment—is not even close to the proper “level of generality at which to define [the] historical practice.” Rahimi, 602 U.S. at 724 n.4 (Kavanaugh, J., concurring). It captures conduct that would have commonly justified exclusion, and a host of less significant acts. So simply pointing to Williams’s felony because it is labeled “felony” does not do. We must move to a more granular comparison, assessing Williams’s conduct against the Justice Department’s proffered analogy. 2. a. That rigorous analysis starts by considering “whether ‘historical precedent’ from before, during, and even after the 15 See 4 Blackstone *97–98 (observing that “capital punishment does by no means enter into the true idea and definition of felony” but “we now entertain of felony as a crime to be punished by death”); 1 Francis Wharton, A Treatise on the Criminal Law of the United States 3 (7th ed. 1874) (“By statutes, however, running from the earliest period, new felonies were . . . created; till finally . . . it was held, that whenever judgment of life or member was affixed by statute, the offence to which it was attached became felonious by implication . . . . In 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.”). 12 founding evinces a comparable tradition of regulation.” Bruen, 597 U.S. at 27; see also Hemani, 146 S. Ct. at 1685–86. These historical regulations can confirm a custom—some widely practiced and long-established action—evidencing the boundaries of the liberty protected by the Second Amendment. Customary restrictions are not incursions on the rights protected by the Second Amendment; they are merely part of the tradition the amendment codified. That is why Bruen explains courts cannot “uphold every modern law that remotely resembles a historical analogue,” nor require the regulator to identify a “historical twin” or “dead ringer.” 597 U.S. at 30. Instead, the regulator may “reason[] by analogy—a commonplace task for any lawyer or judge.” Id. at 28; see also Hemani, 146 S. Ct. at 1686. Courts need not scour all the history books because it is the regulator’s burden to proffer that analogy “‘based on the historical record’ and arguments ‘compiled by the parties.’” Hemani, 146 S. Ct. at 1687 (quoting Bruen, 597 U.S. at 26 n.6). And since “one needs ‘some metric enabling the analogizer to assess which similarities are important,’” considerations must include, but are not limited to, “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Bruen, 597 U.S. at 29 (citation omitted); see also Hemani, 146 S. Ct. at 1686 (“While we have not yet had cause to ‘exhaustive[ly] survey’ the features that may render a modern law ‘relevantly similar’ to historical ones, we have said two play a ‘central’ role.” (citation omitted)); Wolford v. Lopez, 146 S. Ct. 2032, 2044 (2026) (determining relevant similarity “requires consideration of ‘how’ . . . [and] ‘why’ the analogue restricted the keeping or bearing of arms”). The “how” is straightforward—how did earlier generations address a similar problem? For the “why,” we look to whether earlier generations regulated the conduct because it presented a physical danger of the misuse of arms against ordered society. That careful definition—physical danger caused by one’s misuse of a firearm—is key because broadening the meaning of “dangerous” to its limits risks operating at “such a high level of generality that it waters down the right.” Rahimi, 602 U.S. at 740 (Barrett, J., concurring). Someone who swerves in and out of lanes on an electric scooter in Philadelphia is acting dangerously, likely warranting regulatory restrictions on his driving. A person who transports 13 flammable materials in a porous paper container can expect penalties and limitations on his ability to secure explosives. But we would be surprised to learn that senseless scootering could trigger the loss of the right to speak, or that poorly guarded chemicals could forfeit the right against unreasonable searches. So too here, where we focus not on Williams’s general dangerousness but on whether Williams would have been punished for his conduct because it was thought to correlate with future dangerous use of arms. b. We first identify the actual conduct at issue to compare against the Government’s historical analogues so we can determine if this conduct was ever disarmable in the first instance and, ultimately, measure these analogues for fit with the modern restriction.16 We look to the elements of the predicate offense, and to clarify those elements, we may also consider the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). If the predicate offense lacks threats or violence, then the predicate crime was likely never disarmable. See Rahimi, 602 U.S. at 700 (“[T]he Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.”). Williams’s predicate offense requires that the offender 1) “drive, operate or be in actual physical control of the movement of a vehicle” 2) “after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher” and 3) “ha[ve] one prior [DUI] offense.” See 75 Pa. C.S. §§ 3802(c), 16 By “actual conduct,” we do not refer to an unbounded inquisition into the general dangerousness of an individual, which was outlined by a panel of this Court in Pitsilides v. Barr, 128 F.4th 203, 212–13 (3d Cir. 2025). Indeed, “that case is no longer our touchstone” and does not provide precedential value moving forward. Bost, No. 24-1719, at 5 (3d Cir. Oct. 13, 2026). 14 3803(b)(4).17 This offense plainly does not contain threatening or violent elements. Cf. Bost, No. 24-1719, at 14 (3d Cir. Oct. 13, 2026) (noting that a predicate offense with elements including “threat[ening] to commit any crime of violence with intent to terrorize another” sufficiently evinced a risk of physical violence from misusing arms). So we must turn to the Government’s proffered analogues to determine if they allow us to infer that the restriction imposed by Williams’s continued disarmament is consistent with the right codified by the Second Amendment. See Wolford, 146 S. Ct. at 2044. The Department of Justice analogizes this conduct to laws “disarming loyalists, underage individuals, [] vagrants,” “common drunkards,” and “habitual drunkards.” DOJ Opening Br. 24–26 & n.8. But only those laws restricting drunkards bear any resemblance to Williams’s conduct, so we focus our analysis there. The first two elements of Williams’s offense are a variation of public intoxication laws, customarily defined as the vice of drunkenness made public.18 The third element 17 The other Shepard documents provide no reason to expand our scope since they show Williams’s conduct did not involve “any property damage or injury to another.” App. 55. 18 See, e.g., An Act for the Punishment of Drunkenness, reprinted in Acts and Laws of the State of Connecticut, in America 43 (1784) (“[A]ny Person . . . thereby bereaved, and disabled in the use of his Reason and Undertaking, appearing either in his Speech, Gesture or Behaviour.”); Act of Dec. 16, 1812, reprinted in Police and Nuisances, § 19, 1 Burch Digest 141 (Washington, D.C.) (punishing those “found . . . drunk in or about the streets”); Act of Mar. 19, 1874, No. 646, § 8, 1873–1874 S.C. Acts 797, 799 (codified at S.C. Gen. Stat. pt. 1, tit. 13, ch. 55, § 1739, at 509 (1881–1882)) (“Any person who shall be found drunk or grossly intoxicated in any street, highway, public house or public place shall be fined.”); see 4 Blackstone *25–26 (“drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy”); id. at *41 (“[T]he vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals; but if committed publicly, in the face of the world, its evil example makes it liable to temporal censures.”). 15 sweeps in proscriptions against being a “common” or “habitual” drunkard, i.e., the analogy on which the Justice Department rests its case.19 Some of those laws allowed for the involuntary commitment of habitual drunkards to prisons or inebriate asylums.20 Others allowed courts to place habitual drunkards under guardianship.21 The Justice Department acknowledges it may proscribe Williams’s possession of firearms only if he “presently poses a physical danger if armed,” DOJ Panel Supp. Br. 2, but offers no evidence to establish this as the aim of the habitual drunkard laws. Indeed, it provides no analysis on the “why” of these laws.22 And that silence has since been supplemented by the 19 The Government’s reluctance to cite public intoxication laws is understandable because offenders were put into the stocks for hours at most, “until they sobered up.” United States v. Harris, 144 F.4th 154, 159 (3d Cir. 2025), vacated and remanded, No. 25-372, 2026 WL 1854989 (U.S. June 29, 2026). 20 See, e.g., Act of Apr. 1, 1870, ch. 426, § 2, 1869–1870 Cal. Stat. 585–586; Act of July 8, 1890, No. 100, § 1, 1890 La. Acts 116; Act of Mar. 5, 1860, ch. 386, §§ 6–7, 1860 Md. Laws 607–609; Act of July 25, 1874, ch. 113, § 1, 1874 Conn. Pub. Acts 256; Act of May 1, 1890, ch. 42, §§ 1, 2, 1890 Iowa Acts 67; Act of Mar. 31, 1873, ch. 57, §§ 1–3, 1873 Miss. Laws 61– 62; Act of Mar. 27, 1857, ch. 184, §§ 4, 9, 1857 N.Y. Laws, vol. 1, at 429, 431; Act of June 18, 1885, ch. 339, §§ 1–3, 1885 Mass. Acts 790; see also infra notes 24–25. 21 See, e.g., Act of May 1, 1890, ch. 42, §§ 1, 2, 1890 Iowa Acts 67; Act of Aug. 18, 1876, ch. 112, § 147, 1876 Tex. Gen. Laws 188; see David Korostyshevsky, Incapable of Managing His Estate: Habitual Drunkards and the Expansion of Guardianship in the Nineteenth-Century United States, 43 L. & Hist. Rev. 795, 797–813 (2025). 22 The Department of Justice first argued these laws exemplify why categorical bans, like § 922(g)(1), are permissible. In supplemental briefing, the Department pivots, asking this Court to remand for further factfinding on whether Williams is physically dangerous. But the government has the burden to proffer an analogy from the historical record based 16 Supreme Court’s conclusion that these same laws did not seek “to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation.” Hemani, 146 S. Ct. at 1690.23 Nor does the Justice Department explain “how” the habitual drunkard laws ameliorated the threat of firearm misuse in a way relevant to the operation of § 922(g)(1). As Bruen clarifies, “if earlier generations addressed the societal problem, but did so through materially different means, that . . . could be evidence that a modern regulation is unconstitutional.” 597 U.S. at 26–27. That is the case here, and why the analogy to the permanent bar in § 922(g)(1) breaks down. Most statutes capped the commitment of habitual drunkards to the state inebriate asylum, prison, or hard labor to a few months or years.24 Others provided for an indefinite on the Shepard documents. See Hemani, 146 S. Ct. at 1686. Only after it meets that burden might factfinding be needed. 23 The government does not raise founding-era laws that permitted justices of the peace to grant the “Surety for the Good Behaviour” “[a]gainst common Drunkards,” so we do not consider them. Michael Dalton, The Country Justice: Containing the Practice, Duty and Power of The Justices of the Peace 411 (E&R Nutt & R. Gosling ed. 1727). In any case, that regime would probably not justify this application of § 922(g)(1), since those sureties were intended “to protect the community from scandals ‘against good morals,’” not from “individual[s] [who] posed a threat of violence.” Hemani, 146 S. Ct. at 1691 (quoting Nathan Dane, General Abridgment and Digest of American Law 301 (1824)). 24 Compare Leavitt v. City of Morris, 117 N.W. 393, 395 (Minn. 1908) (discussing a Minnesota law that “provide[d] that if the board determine that such person is an inebriate he shall be committed to the hospital farm for treatment for an indeterminate period, but not for more than two years without being released on parol”), Act of Feb. 1, 1866, No. 11, § 10, 1866 Pa. Laws 10 (“[W]henever any person shall, hereafter, be found to be a habitual drunkard, by due course of law, it shall be lawful for the court of common pleas . . . to commit him to the Inebriate Asylum, for a period, not less than six months, nor more than two years.”), with Act of July 25, 1874, ch. 113, 17 period of incarceration, but had no indication that upon release individuals continued to forfeit their arms.25 Rather, once § 1, 1874 Conn. Pub. Acts 256 (allowing commitment to the inebriate asylum “for a term not less than four months, and not more than twelve months”), and Jerome Hall, Drunkenness as a Criminal Offense, 32 J. Crim. L. & Criminology 297, 303 n.37 (1941) (referencing Iowa law, which provided that “[a] habitual drunkard . . . may be kept in the common jail for any time, not exceeding six months, at hard larbor [sic].”), Act of Apr. 1, 1870, ch. 426, § 2, 1869–1870 Cal. Stat. 585–86 (same), and Miscellaneous Crimes, Title XVII, § 1014, reprinted in Revised Statutes of Arizona 753–754 (1887) (allowing imprisonment of “every common drunkard” for a time period “not exceeding ninety days”), Act of Apr. 30, 1855, reprinted in 2 General Laws of the State of California, from 1850 to 1864, Inclusive 1076–77 (Theodore H. Hittell ed., 2d ed. 1870) (same), Act of Mar. 7, 1873, ch. 114, § 1, 1873 Nev. Stat. 189–190 (same), Act of Feb. 18, 1876, § 378, reprinted in The Compiled Laws of the Territory of Utah 647 (1876) (same), Act of June 10, 1799, ch. 806, § 5, 1798 N.J. Laws 561–63 (allowing “disorderly persons,” including “common drunkards,” to be “kept at hard labour for any time not exceeding three calendar months”), and 1825 Me. Pub. Acts 1034, Act of Feb. 22, 1825, ch. 297, § 4 (allowing a “Board of Overseers” to commit any “common drunkard” “