WARDLAW, Circuit Judge:

18 U.S.C. § 922(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, 554 U.S. 570 (2008), every circuit to address the facial constitutionality of § 922(g)(1) upheld its categorical constitutionality. Medina v. Whitaker, 913 F.3d 152, 155 (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, 597 U.S. ^[1] (2022), had held that the law was unconstitutional as applied to certain felons. See id.

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, 554 U.S. at 592, Parliament in 1689 “adopted the English Bill of Rights, which guaranteed ‘that

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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,

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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

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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”).

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, 554 U.S. at 594, 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

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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, 566 U.S. 673, 680 (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 554 U.S. at 628 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

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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 18 U.S.C. § 922(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

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U.S. at 693 (quoting 18 U.S.C. § 922(g)(8)(C)(i)), Rahimi held that the so-called “going armed laws” provided, together with other laws, a relevant historical analogy, id. at 699. 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.’” Id. at 697 (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”).

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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.

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(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, 554 U.S. at 635)); id. 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).

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

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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,

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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, 587 U.S. 119, 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 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, 919 F.3d 437, 459 (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

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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, 554 U.S. 407, 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, 554 U.S. at 577; 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 18 U.S.C. § 922(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, Cal. Penal Code § 594(a); felon in possession of a firearm, id. § 29800(a)(1); possession of a controlled substance, Cal. Health & Safety Code § 11351.5; and two convictions for evading a peace officer, Cal. Veh. Code § 2800.2. 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, 594 F.3d 1111, 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, 597 U.S. ^[1] (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 id. at 15 (abrogating Young v. Hawaii, 992 F.3d 765, 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, 594 F.3d at 1118; United States v. Phillips, 827 F.3d 1171, 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, 101 F.4th 657, 661–62 (9th Cir. 2024), reh’g en banc granted, opinion vacated, 108 F.4th 786 (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, 507 U.S. 725, 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, 527 U.S. 373, 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, 520 U.S. 461, 466 (1997); Jones, 527 U.S. at 388–89; United States v. Vonn, 535 U.S. 55, 64 (2002); Greer v. United States, 593 U.S. 503, 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, 921 F.3d 895, 897 (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. Id. 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. Id. 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. Id. at 898. 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, id. at 897, 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, 786 F.3d 630, 636 (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, 786 F.3d at 636; United States v. Mung, 989 F.3d 639, 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, 893 F.3d 763, 770 (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, 921 F.3d at 898; United States v. Wright, 215 F.3d 1020, 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, 828 F.3d 763, 779 (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, 769 F.3d 626, 629 (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.” Id. 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, 827 F.3d at 1175 (“[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, 683 F.3d 1126, 1133 (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, 112 F.4th 713, 721 n.5 (9th Cir. 2024) (quoting United States v. Grovo, 826 F.3d 1207, 1221 n.8 (9th Cir. 2016)); see also United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991); United States v. Carlson, 900 F.2d 1346, 1349 (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, 826 F.3d at 1221 n.8; Aguilera- Rios, 769 F.3d at 629. 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, 33 F.4th 1081, 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, 935 F.3d 838, 841–42 (9th Cir. 2019) (alterations in original) (quoting United States v. Garcia-Lopez, 903 F.3d 887, 892 (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, 77 F.4th 1228, 1231 (9th Cir. 2023) (noting that application of the categorical approach is a “purely legal question”); McAdory, 935 F.3d at 842 (“[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, 935 F.3d at 842. 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, 838 F.3d 1007, 1015 (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., 901 F.3d 1046, 1055 (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, 487 U.S. 250, 255 (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. 706 F.2d 1000, 1012 (9th Cir. 1983) (first citing Hormel v. Helvering, 312 U.S. 552, 557– 58 (1941), then citing Singleton v. Wulff, 428 U.S. 106, 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. Id. 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, 327 U.S. 821 (1945).). And Singleton was a civil challenge to a state statute, again without opportunity to discuss the rules of criminal procedure. 428 U.S. at 120. 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.’” Id. 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, 470 U.S. ^[1], 15 (1985). In Johnson, the Court explained that courts have “no authority to make” exceptions to Rule 52(b) “out of whole cloth.” 520 U.S. at 466; see also Puckett v. United States, 556 U.S. 129, 135–36 (2009) (criticizing judicially crafted exceptions to Rule 52(b)); Davis v. United States, 589 U.S. 345, 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, 568 U.S. 266, 270–71 (2013); 72 USA V. DUARTE Johnson, 520 U.S. at 464. For example, in Henderson, the Court explained that the “plainness” of an error should be measured at “the time of review.” 568 U.S. at 271. 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, 960 F.3d 949, 956 (7th Cir. 2020); see also United States v. Jobe, 101 F.3d 1046, 1062 (5th Cir. 1996) (“permit[ting] defendants to assert plain error based on intervening changes in the law”); United States v. David, 83 F.3d 638, 644–45 (4th Cir. 1996) (applying plain error review to claim based upon change in law); United States v. Kramer, 73 F.3d 1067, 1074 & n.16 (11th Cir. 1996) (same); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir. 1994) (same); United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (same); United States v. Jones, 21 F.3d 165, 172–73 (7th Cir. 1994) (same); United States v. Pervez, 871 F.2d 310, 314 (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, 838 F.3d at 1017 (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, 507 U.S. at 731. 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, 925 F.3d 1172, 1178 (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, 922 F.3d 983, 991 (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, 507 U.S. at 731; Bain, 925 F.3d at 1178. 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, 110 F.4th 408, 420 (1st Cir. 2024); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, 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, 69 F.4th 648, 658 (9th Cir. 2023) (opinion of Wardlaw, J.). 74 USA V. DUARTE Dorsey, 105 F.4th 526, 532 (3d Cir. 2024); United States v. Johnson, 95 F.4th 404, 416–17 (6th Cir. 2024); United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (per curiam); United States v. Miles, 86 F.4th 734, 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, 123 F.4th 697, 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, 110 F.4th 1120, 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, 127 F.4th 1263, 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, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (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, 96 F.4th 1166, 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, 124 F.4th 218, 222 (3d Cir. 2024) (en banc) (holding that § 922(g)(1) was unconstitutional as applied to a non-violent felon), United States v. Diaz, 116 F.4th 458, 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, 113 F.4th 637, 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 602 U.S. 680, 691 (2024) (first quoting District of Columbia v. Heller, 554 U.S. 570, 626 (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, 335 F.3d 889, 893 (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,” id. at 892, that alone “[i]s enough to render them ‘clearly irreconcilable’” with one another, Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 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, 335 F.3d at 900 (“[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, 56 U. Chi. L. Rev. 1175, 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, 827 F.3d at 1174 (“[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, 335 F.3d at 893, 900. 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, 80 F.4th 1197, 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, 70 F.4th 1018, 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, 335 F.3d at 899. 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. Id. 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, 554 U.S. at 635). 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, 121 F.4th 656, 658 (8th Cir. 2024) (Stras, J., dissental). Heller speaks only in terms of a presumption. A presumption must be defeasible. United States v. Williams, 616 F.3d 685, 692 (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, 317 U.S. 249, 257 (1942); O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 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, 117 F.4th 269, 274 (5th Cir. 2024). Consider “sensitive places” prohibitions. Heller, 554 U.S. at 626; 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, 116 F.4th 959, 1002–04 (9th Cir. 2024); see also Wolford v. Lopez, 125 F.4th 1230, 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. 104 F.4th 108, 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, 873 F.3d 670, 682 (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, 952 F.3d 1106, 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, 974 F.3d 1082, 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)”); id. at 1090 (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., 127 F.4th 583, 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, 919 F.3d 437, 445 (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, 115 F.4th 1002, 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, 561 U.S. at 778); see also id. (“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, 16 Drexel L. Rev. ^[1], 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, 314 U.S. 252, 264 (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, 919 F.3d at 455 (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, 919 F.3d at 455 (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.” Id. at 456. “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.” Id. 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, 81 F.4th 1036, 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, 919 F.3d at 459 (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, 980 F.3d 897, 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 id. at 97 (“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, 34 Syracuse L. Rev. 517, 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, 1 Stat. 112, 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. Id. §§ 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, 71 Am. J. Comp. L. 46, 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, 57 Clev. St. L. Rev. 461, 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, 50 Crim. L. Bull. 245, 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, 919 F.3d at 461 (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.” Id. at 462 (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, 85 F.4th 468, 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, 471 U.S. ^[1], 14 (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, 854 F.3d 1324, 1333 (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), 52 Stat. 1250, 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, 919 F.3d at 466 (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, 445 U.S. 263, 274 (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, 20 Wyo. L. Rev. 249, 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, 23 F.4th 1095, 1124 n.1 (9th Cir.), reh’g en banc granted, opinion vacated, 26 F.4th 1016 (9th Cir. 2022), and on reh’g en banc, 38 F.4th 1162 (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, 554 U.S. at 626. 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, 919 F.3d at 458 (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, 919 F.3d at 448 (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