UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

STEVEN DUARTE, AKA Shorty,

Defendant-Appellant.

No. 22-50048

D.C. No.

2:20-cr-00387-

AB-1

OPINION

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 4, 2023

Pasadena, California

Filed May 9, 2024

Before: Carlos T. Bea, Milan D. Smith, Jr., and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge M. Smith, Jr.

2 USA V. DUARTE

SUMMARY

Criminal Law/Second Amendment

Reversing the district court’s judgment, the panel

vacated Steven Duarte’s conviction for violating 18 U.S.C.

§ 922(g)(1), which makes it a crime for any person to

possess a firearm if he has been convicted of an offense

punishable by imprisonment for a term exceeding one year.

On appeal, Duarte challenged his conviction on Second

Amendment grounds, which the panel reviewed de novo

rather than for plain error because Duarte had good cause for

not raising the claim in the district court when United States

v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), foreclosed the

argument.

The panel held that under New York State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the

Second Amendment as applied to Duarte, a non-violent

offender who has served his time in prison and reentered

society; and that Vongxay, which did not apply the mode of

analysis that Bruen later established and now requires courts

to perform, is clearly irreconcilable with Bruen.

Applying Bruen’s two-step, text-and-history framework,

the panel concluded (1) Duarte’s weapon, a handgun, is an

“arm” within the meaning of the Second Amendment’s text,

that Duarte’s “proposed course of conduct—carrying [a]

handgun[] publicly for self-defense”—falls within the

Second Amendment’s plain language, and that Duarte is part

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. DUARTE 3

of “the people” whom the Second Amendment protects

because he is an American citizen; and (2) the Government

failed to prove that § 922(g)(1)’s categorical prohibition, as

applied to Duarte, “is part of the historic tradition that

delimits the outer bounds of the” Second Amendment right.

Judge M. Smith dissented. He wrote that until an

intervening higher authority that is clearly irreconcilable

with Vongxay is handed down, a three-judge panel is bound

by that decision. He wrote that Bruen, which did not

overrule Vongxay, reiterates that the Second Amendment

right belongs only to law-abiding citizens; and that Duarte’s

Second Amendment challenge to § 922(g)(1), as applied to

nonviolent offenders, is therefore foreclosed.

COUNSEL

Suria M. Bahadue (argued) and Juan M. Rodriguez,

Assistant United States Attorneys; Kyle Kahan, Special

Assistant United States Attorney; Bram M. Alden, Assistant

United States Attorney, Criminal Appeals Section Chief; E.

Martin Estrada, United States Attorney; United States

Department of Justice, Office of the United States Attorney,

Criminal Appeals Section, Los Angeles, California; for

Plaintiff-Appellee.

Sonam A. H. Henderson, Assistant Federal Public Defender;

Cuauhtemoc Ortega, Federal Public Defender; Federal

Public Defender’s Office, Los Angeles, California, for

Defendant-Appellant.

4 USA V. DUARTE

OPINION

BEA, Circuit Judge:

18 U.S.C. § 922(g)(1) makes it a crime for any person to

possess a firearm if he has been convicted of an offense

“punishable by imprisonment for a term exceeding one

year.” Steven Duarte, who has five prior non-violent state

criminal convictions—all punishable for more than a year—

was charged and convicted under § 922(g)(1) after police

saw him toss a handgun out of the window of a moving car.

Duarte now challenges the constitutionality of his

conviction. He argues that, under the Supreme Court’s recent

decision in New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022), § 922(g)(1) violates the Second

Amendment as applied to him, a non-violent offender who

has served his time in prison and reentered society. We

agree.

We reject the Government’s position that our pre-Bruen

decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir.

2010), forecloses Duarte’s Second Amendment challenge.

Vongxay is clearly irreconcilable with Bruen and therefore

no longer controls because Vongxay held that § 922(g)(1)

comported with the Second Amendment without applying

the mode of analysis that Bruen later established and now

requires courts to perform. Bruen instructs us to assess all

Second Amendment challenges through the dual lenses of

text and history. If the Second Amendment’s plain text

protects the person, his arm, and his proposed course of

conduct, it then becomes the Government’s burden to prove

that the challenged law is consistent with this Nation’s

historical tradition of firearm regulation. Vongxay did not

apply these two analytical steps because Bruen had not yet

USA V. DUARTE 5

established them. We must therefore reconsider

§ 922(g)(1)’s constitutionality, this time applying Bruen’s

two-step, text-and-history framework.

At step one of Bruen, we easily conclude that Duarte’s

weapon, a handgun, is an “arm” within the meaning of the

Second Amendment’s text and that Duarte’s “proposed

course of conduct—carrying [a] handgun[] publicly for self-

defense”— falls within the Second Amendment’s plain

language, two points the Government never disputes. Bruen,

597 U.S. at 32. The Government argues only that “the

people” in the Second Amendment excludes felons like

Duarte because they are not members of the “virtuous”

citizenry. We do not share that view. Bruen and Heller

foreclose that argument because both recognized the “strong

presumption” that the text of the Second Amendment

confers an individual right to keep and bear arms that

belongs to “all Americans,” not an “unspecified subset.”

Bruen, 597 U.S. at 70 (quoting District of Columbia v.

Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the

Second Amendment’s publicly understood meaning also

confirms that the right to keep and bear arms was every

citizen’s fundamental right. Because Duarte is an American

citizen, he is “part of ‘the people’ whom the Second

Amendment protects.” Bruen, 597 U.S. at 32.

At Bruen’s second step, we conclude that the

Government has failed to prove that § 922(g)(1)’s

categorical prohibition, as applied to Duarte, “is part of the

historical tradition that delimits the outer bounds of the”

Second Amendment right. Bruen, 597 U.S. at 19. The

Government put forward no “well-established and

representative historical analogue” that “impose[d] a

comparable burden on the right of armed self-defense” that

was “comparably justified” as compared to § 922(g)(1)’s

6 USA V. DUARTE

sweeping, no-exception, lifelong ban. Id. at 29, 30. We

therefore vacate Duarte’s conviction and reverse the district

court’s judgment entering the same.

On the night of March 20, 2020, two Inglewood police

officers noticed a red Infiniti auto drive past them with tinted

front windows. The officers turned around and trailed the car

for a time before seeing it run a stop sign. When they

activated their patrol lights, one of the officers saw the rear

passenger (later identified as Duarte) roll the window down

and toss out a handgun. The Infiniti drove about a block

farther before stopping.

The officers approached the vehicle, removed Duarte

and the driver from the car, and handcuffed them. A search

of the car’s interior recovered a loaded magazine wedged

between the center console and front passenger seat. A third

officer arrived at the scene and searched the immediate area,

where he found the discarded handgun—a .380 caliber

Smith & Wesson—with its magazine missing. One of the

officers loaded the magazine into the recovered pistol, and it

fit “perfectly.”

A federal grand jury indicted Duarte 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). The

indictment referenced Duarte’s five prior, non-violent

criminal convictions in California: 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

USA V. DUARTE 7

evading a peace officer, Cal. Veh. Code § 2800.2.

Each of

these convictions carried a possible sentence of one year or

more in prison.

Duarte pleaded not guilty to the charge in the indictment.

His case proceeded to trial, a jury found him guilty, and he

received a below-guidelines sentence of 51 months in prison.

He timely appealed and now challenges his conviction under

the Second Amendment. We have jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

We normally review claims of constitutional violations

de novo. United States v. Oliver, 41 F.4th 1093, 1097 (9th

Cir. 2022). But because Duarte did not challenge § 922(g)(1)

on Second Amendment grounds in the district court below,

the Government argues that Federal Rule of Criminal

Procedure 52(b)’s more demanding plain error standard of

review controls. Id. (“A plain error that affects substantial

rights may be considered even though it was not brought to

the court’s attention.”). We disagree.

It is true that Rule 52(b)’s plain error standard “is the

default standard governing . . . consideration of issues not

properly raised in the district court” and thus “ordinarily

applies when a party presents an issue for the first time on

appeal.” United States v. Guerrero, 921 F.3d 895, 897 (9th

Cir. 2019). But when the untimely issue is a Rule 12(b)(3)

“defense[]” or “objection[]” to a criminal indictment, “Rule

In the proceedings below, the Government conceded in pre-trial

briefing that “none of [Duarte’s] prior convictions [we]re violent.” And

neither Duarte’s indictment, nor the pre-sentencing report prepared after

his conviction, alleged that Duarte’s predicate offenses involved

violence.

8 USA V. DUARTE

12’s good-cause standard . . . displac[es] the plain-error

standard” under Rule 52(b). Id.; see Fed. R. Crim. P.

12(b)(4)(B)(c)(1) (“[A] court may consider the [untimely]

defense, objection, or request if the party shows good

cause.”). If the defendant demonstrates good cause for

failing to raise the Rule 12(b)(3) issue below, we may

consider it for the first time and will apply whatever default

standard of review would normally govern the merits, which

in this case is de novo review. See United States v. Aguilera-

Rios, 769 F.3d 626, 629 (9th Cir. 2014).

No one disputes here that Duarte’s Second Amendment

challenge is untimely because he could have raised it as a

Rule 12(b)(3) defense or objection to his indictment. Duarte,

however, demonstrated good cause for asserting his

constitutional claim now instead of then. When Duarte was

indicted, he “had no reason to challenge” whether

§ 922(g)(1) violated the Second Amendment as applied to

him. Aguilera-Rios, 769 F.3d at 630. We had already held in

Vongxay “that § 922(g)(1) does not violate the Second

Amendment as it applies to . . . convicted felon[s].” 594 F.3d

at 1118. Only later did the Supreme Court decide Bruen,

which (for reasons we explain just below) is irreconcilable

with Vongxay’s reasoning and renders it no longer

controlling in this Circuit. Because Vongxay “foreclosed the

argument [Duarte] now makes,” Duarte had good cause for

not raising it in a Rule 12(b)(3) pretrial motion. Aguilera-

Rios, 769 F.3d at 630. We may consider his challenge for the

first time and will review it de novo.

III.

We must first decide whether Bruen abrogated our

decision in United States v. Vongxay. We follow our decision

USA V. DUARTE 9

in Miller v. Gammie to answer that question. 335 F.3d 889

(9th Cir. 2003). Under Miller, “where the reasoning or

theory of [a] prior circuit authority is clearly irreconcilable

with the reasoning or theory of intervening higher authority,”

we are “bound by the later and controlling authority” and

“reject the prior circuit opinion as . . . effectively overruled.”

Id. at 893 (emphasis added). This is a more “flexible

approach” than what other circuits use. Id. at 899. To

abrogate a prior decision of ours under Miller, the

intervening authority need only be “closely related” to the

prior circuit precedent and need not “expressly overrule” its

holding. Compare id., with United States v. Dubois, 94 F.4th

1284, 1293 (11th Cir. 2024) (intervening authority must be

“clearly on point” and must “demolish and eviscerate each

of [the prior decision’s] fundamental props”) (citations

omitted). So long as the “the Supreme Court ha[s] taken an

‘approach [in an area of law] that [is] fundamentally

inconsistent with the reasoning of our earlier circuit

authority,[’]” Rodriguez v. AT&T Mobility Services LLC, 728

F.3d 975, 979 (9th Cir. 2013) (quoting Miller, 335 F.3d at

889, 990), that “[i]s enough to render them” irreconcilable

with one another, Langere v. Verizon Wireless Services, LLC,

983 F.3d 1115, 1121 (9th Cir. 2020) (citations omitted).

As a result, “[e]ver since . . . Miller v. Gammie[,] . . . we

have not hesitated to overrule our own precedents when their

underlying reasoning could not be squared with the Supreme

Court’s more recent pronouncements.” In re Nichols, 10

F.4th 956, 962 (9th Cir. 2021). We have found the standard

met in the obvious cases, such as when a later Supreme Court

decision implicitly (but not expressly) overrules an earlier

precedent of ours because the supervening authority

fundamentally reshapes an area of law by announcing a new

or clarified analytical framework that the earlier decision

10 USA V. DUARTE

never applied. See United States v. Slade, 873 F.3d 712, 715

(9th Cir. 2017); see also, e.g., United States v. Baldon, 956

F.3d 1115, 1121 (9th Cir. 2020) (“[The Supreme Court’s]

clarification [in Stokeling] of ‘violent force’ . . . is ‘clearly

irreconcilable’ with . . . [Solorio-Ruiz’s] . . . analytical

distinction between substantial and minimal force. This

distinction no longer exists.”); Phelps v. Alameida, 569 F.3d

1120, 1133 (9th Cir. 2009) (holding previous per se rule for

rejecting Rule 60(b)(6) motions based on intervening change

in law was irreconcilable with Supreme Court’s “case-by-

case approach”); Swift v. California, 384 F.3d 1184, 1190

(9th Cir. 2004). So too have we invoked Miller when the

affirmative reasons for a previous panel decision

“necessarily rested on at least one assumption that is clearly

irreconcilable with intervening higher authority.” Ortega-

Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th. Cir. 2006)

(emphasis added); see Lair v. Bullock, 798 F.3d 736, 746 (9th

Cir. 2015) (“Because Eddleman relied at least in part on a

state’s interest in combating ‘influence,’ whereas Citizens

United narrowed the analysis . . . to exclude th[at] state[]

interest . . . Citizens United abrogated Eddleman’s . . .

analysis.”) (citing Miller, 335 F.3d at 893) (emphasis added).

Thus, while Miller’s “clearly irreconcilable” test may be a

“high” standard, by no means is it an “insurmountable” one.

Langere, 983 F.3d at 1121.

With these principles in mind, we conclude that

Vongxay’s reasoning is “clearly irreconcilable” with Bruen

and its holding therefore no longer controls. Miller, 335 F.3d

at 893. Vongxay did not follow the textually and historically

focused “mode of analysis” that Bruen established and

required courts now to apply to all Second Amendment

challenges. Id. at 900 (“[L]ower courts a[re] bound not only

by the holdings of higher courts’ decisions but also by their

USA V. DUARTE 11

‘mode of analysis.’”) (quoting Antonin Scalia, The Rule of

Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177

(1989)); see, e.g., Slade, 873 F.3d at 715 (“Since Jennen

failed to consider whether section 9A.36.021 is divisible . . .

the decision’s reasoning is ‘clearly irreconcilable’ with the

analytical process [later] prescribed by [the Supreme Court

in] Descamps and Mathis.”) (citing Miller, 335 F.3d at 893).

Nor do Vongxay’s affirmative bases for upholding

§ 922(g)(1) salvage Vongxay’s holding. We must therefore

conduct our Second Amendment analysis of § 922(g)(1)

anew, this time following Bruen’s analytical framework.

Before Bruen, virtually every circuit (ours included)

“coalesced around a ‘two-step’ framework for analyzing

Second Amendment challenges.” Bruen, 597 U.S. at 17; see,

e.g., United States v. Chovan, 735 F.3d 1127, 1136–37 (9th

Cir. 2013). At the first step, we asked whether the challenged

law affected conduct historically protected by the Second

Amendment. E.g., Young v. Hawaii, 992 F.3d 765, 783–84

(9th Cir. 2021) (en banc), vacated, --- U.S. ---, 142 S. Ct.

2895, 213 L. Ed. 2d 1108 (2022). If it did, we moved to the

second step, where we applied varying levels of scrutiny to

the challenged law, depending on how close the regulated

conduct lay to the “core” of the Second Amendment right to

“keep and bear arms.” Id.

“Bruen effected a sea change in Second Amendment

law” by replacing this tiers-of-scrutiny framework with one

grounded exclusively in text and history. Maryland Shall

Issue, Inc. v. Moore, 86 F.4th 1038, 1041 (4th Cir. 2023),

rehearing en banc granted, 86 F.4th 1038 (Jan. 11, 2024).

Courts must now consider, as a “threshold inquiry,” United

States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023),

12 USA V. DUARTE

whether “the Second Amendment’s plain text covers” the

person challenging the law, the “arm” involved, and the

person’s “proposed course of conduct,” Bruen, 597 U.S. at

17. If the Second Amendment’s “bare text” covers the

person, his arm, and his conduct, “the government must

[then] demonstrate that the [challenged] regulation is

consistent with this Nation’s historical tradition of firearm

regulation.” Id. at 18, 44 n.11. To meet its burden, the

Government must “identify a well-established and

representative historical analogue” to the challenged law. Id.

at 30 (emphasis in original). As to courts, “th[e] historical

inquiry that [we] must [now] conduct” requires “reasoning

by analogy,” in which the two “central considerations” will

be whether “how” the proffered historical analogue

burdened the Second Amendment right, and “why” it did so,

are both sufficiently comparable to the challenged

regulation. Id. at 28, 29. “Only if” the Government proves

that its “firearm regulation is consistent [in this sense] with

th[e] Nation’s historical tradition may a court conclude that

the individual’s conduct falls outside the Second

Amendment’s ‘unqualified command.’” Id. at 17 (citations

omitted).

Because Bruen “had not yet clarified the[se] particular

analytical step[s]” until after Vongxay was decided,

Vongxay, predictably, failed to apply them. See Slade, 873

F.3d at 715. Unlike post-Bruen circuit cases to consider

§ 922(g)(1)’s constitutionality, Vongxay did not grapple

with the “threshold [textual] inquiry . . . whether [Vongxay]

[wa]s part of ‘the people’ whom the Second Amendment

protects,” whether “the weapon at issue” was an “arm”

within the meaning of the Second Amendment, or “whether

the ‘proposed course of conduct’ f[ell] within the Second

Amendment[’s]” plain language. See Alaniz, 69 F.4th at

USA V. DUARTE 13

1128 (quoting Bruen, 597 U.S. at 31–32); see also, e.g.,

Range v. Attorney General, 69 F.4th 96, 101 (3d Cir. 2023)

(“We begin with the threshold question: whether Range is

one of ‘the people’ who have Second Amendment rights.”).

As a result, Vongxay never decided whether to proceed to

Bruen’s second step, which would have required the

Government to prove that § 922(g)(1)’s lifetime ban on

felons possessing firearms imposed a “comparable burden”

on the Second Amendment right that was “comparably

justified” compared to historical examples of firearm

regulations—the “how and why” of Bruen’s “analogical

inquiry.” 597 U.S. at 29; compare United States v. Jackson,

69 F.4th 495, 501–06 (8th Cir. 2023) (surveying historical

examples and concluding § 922(g)(1) comported with this

Nation’s history of firearm regulation), with Range, 594 F.3d

at 103–06 (surveying the same history but concluding the

opposite).

The dissent does not dispute that Vongxay never

performed the textual “person,” “arms,” and “conduct”

analysis at Bruen’s first step, nor the historically focused

“reasoning by analogy” approach required at Bruen’s step

two. But none of these omissions should matter, the dissent

argues, because Heller read the Second Amendment’s “the

people” as “exclu[ding] . . . felons” and Bruen “implicitly

endorsed” that reading when it made the (unremarkable)

observation that the petitioners in that case—two “ordinary,

law-abiding, adult citizens”—were indisputably “part of ‘the

people.’” 597 U.S. at 31; Dissent at 66, 71. So there is

“harmon[y]” between Bruen and Vongxay after all. Dissent

at 67–68.

The dissent’s post-hoc reading of Bruen and Heller finds

no support in either case. The Supreme Court “has never

suggested that felons are not among ‘the people’ within the

14 USA V. DUARTE

plain meaning of the Second Amendment.” United States v.

Perez-Garcia, 96 F.4th 1166, 1175 (9th Cir. 2024) (emphasis

added). Quite the opposite, Heller defined “the people” in

the broadest of terms: the phrase “unambiguously refer[red]”

to “all Americans,” not “an unspecified subset.” 554 U.S. at

581. More importantly, Bruen ratified that broad definition,

quoting Heller’s language directly to hold that “[t]he Second

Amendment guarantee[s] to ‘all Americans’ the right to bear

commonly used arms in public.” 597 U.S. at 70 (quoting

Heller, 554 U.S. at 581) (emphasis added).

In sum, Vongxay’s wholesale omission of Bruen’s two-

step methodology is “clearly irreconcilable” with Bruen’s

“mode of analysis” for analyzing Second Amendment

challenges. Miller, 335 F.3d at 900. We would be remiss,

however, to ignore Vongxay’s affirmative reasons for

upholding § 922(g)(1). We do that below. Because

Vongxay’s rationale “rested on . . . at least one assumption”

about the propriety of felon firearm bans, none of which

continue to have any purchase in a post-Bruen world, this is

a separate basis for parting ways with Vongxay under Miller

v. Gammie. See Ortega-Mendez, 450 F.3d at 1020.

Vongxay concluded that § 922(g)(1) comported with the

Second Amendment because that was what we held in

United States v. Younger, 398 F.3d 1179, 1192 (9th Cir.

2005). Vongxay, 594 F.3d at 1116. But “[t]he reasoning upon

which Younger was based—that the Second Amendment

does not give individuals a right to bear arms—was

invalidated by Heller,” id. (emphasis added), and again by

Bruen, which expressly reaffirmed Heller’s holding that “the

Second Amendment[] . . . ‘guarantees the individual right to

possess and carry weapons in case of confrontation,’” 597

USA V. DUARTE 15

U.S. at 33 (emphasis added) (quoting Heller, 554 U.S. at

592). Vongxay’s reliance on Younger is therefore “clearly

irreconcilable” with Bruen—separate and apart from

Vongxay’s failure to apply Bruen’s methodology. See Murray

v. Mayo Clinic, 934 F.3d 1101, 1105–06 (9th Cir. 2019).

While concluding that “Younger control[led]” and the

“legal inquiry end[ed]” with that case, Vongxay also turned

to two Fifth Circuit, pre-Heller decisions—United States v.

Everist, 368 F.3d 517 (5th Cir. 2004) and United States v.

Emerson, 270 F.3d 203 (5th Cir. 2001)—which purportedly

“len[t] credence to the . . . viability of Younger’s holding” in

a post-Heller (but pre-Bruen) world. Vongxay, 594 F.3d at

1116, 1117. Vongxay endorsed, specifically, Everist’s

holding that § 922(g)(1) was constitutional “as a ‘limited and

narrowly tailored exception to the freedom to possess

firearms, reasonable in its purposes and consistent with the

right to bear arms.’” Id. at 1116–17 (quoting Everist, 594

F.3d at 519 (quoting Emerson, 270 F.3d at 261)). This was

“particularly instructive for [a] post-Heller analys[is]” of

§ 922(g)(1), Vongxay reasoned, because the Fifth Circuit had

recognized, “even before Heller,” that the right to keep and

bear arms was an individual right, and yet still determined

that “felon [firearm] restrictions” were “permissible . . .

under heightened scrutiny.” 594 F.3d at 1117 (citing Everist,

368 F.3d at 519).

Vongxay’s dependence on Emerson and Everist is

untenable post-Bruen. “Emerson applied heightened—i.e.,

intermediate—scrutiny” to uphold a different law—18

U.S.C. § 922(g)(8)—against a Second Amendment

challenge.

United States v. McGinnis, 956 F.3d 747, 759–

18 U.S.C. § 922(g)(8) (“It shall be unlawful for any person [to possess

a firearm] . . . who is subject to a court order that . . . restrains such person

16 USA V. DUARTE

60 (5th Cir. 2020). Relying exclusively on Emerson, Everist

applied the same “means-end” scrutiny approach to

§ 922(g)(1) and similarly held that law was a “narrowly

tailored” and “reasonable” regulation on the Second

Amendment right. Emerson, 368 F.3d at 519 (quoting

Everist, 270 F.3d at 261). Bruen, as we know, “expressly

repudiated the . . . means-end scrutiny . . . embodied in

Emerson” and Everist. See United States v. Rahimi, 61 F.4th

443, 450 (5th Cir. 2023), cert. granted, --- U.S. ---, 143 S.

Ct. 2688, --- L.E.2d --- (2023). Thus, as with Younger,

Everist’s reasoning—and the reasoning of the precedent on

which it stood (Emerson)—were abrogated by Bruen.

Vongxay’s reliance on these cases is clearly irreconcilable

with Bruen. See Murray, 934 F.3d at 1105–06.

The Government and the dissent remind us repeatedly

that, while Vongxay relied on Everist and Emerson, Vongxay

never itself applied the now defunct means-end scrutiny

approach to uphold § 922(g)(1). Dissent at 68–69. That

counts for little under Miller and its progeny because when,

as here, the prior circuit decision in question imports the

reasoning of a previous case by citing it with approval, we

ask simply whether that earlier case’s reasoning is “clearly

irreconcilable” with subsequent higher authority. See id. (“In

Head, we relied on the reasoning of our sister circuits . . .

[but] Gross and Nassar undercut the reasoning set forth by

our sister circuits [in those cases].”). What matters is that

Vongxay still endorsed the Fifth Circuit’s application of

means-end scrutiny to § 922(g)(1) because it cited Everist

from harassing, stalking, or threatening an intimate partner of such

person or child of such intimate partner or person, or engaging in other

conduct that would place an intimate partner in reasonable fear of bodily

injury to the partner or child.”).

USA V. DUARTE 17

for the proposition “that, although there is an individual right

to bear arms, felon restrictions are permissible even under

heightened scrutiny.” Vongxay, 594 F.3d at 1117 (emphasis

added) (citing Everist, 368 F.3d at 519).

Vongxay lastly took comfort in the Heller Court’s remark

that “nothing in [its] opinion should be taken to cast doubt”

on certain “longstanding” laws restricting the Second

Amendment right, such as laws “prohibit[ing] . . . the

possession of firearms by felons and the mentally ill.”

Heller, 554 U.S. at 626. In a footnote, Heller labeled these

and other examples as “presumptively lawful.” Id. n.26.

Vongxay took this to mean that felon firearm bans were

“categorically different” from other restrictions on the

Second Amendment right, which “buttressed” the

conclusion that § 922(g)(1) was constitutional. 594 F.3d at

1115, 1116.

“Simply repeat[ing] Heller’s language” about the

“presumptive[] lawful[ness]” of felon firearm bans will no

longer do after Bruen. See Pena v. Lindley, 898 F.3d 969,

1007 n.18 (9th Cir. 2018) (Bybee, J., concurring in part and

dissenting in part) (citing Vongxay, 594 F.3d at 1115). Bruen

expressly “require[s] courts to assess whether” § 922(g)(1),

id. at 26, like “any regulation infringing on Second

Amendment rights[,] is consistent with this nation’s

historical tradition of firearm regulation,” Perez-Garcia, 96

F.4th at 1175 (citations omitted). It would pay lip service to

this mandate if we continued to defer (as Vongxay did) to

Heller’s footnote, not least because the historical pedigree of

felon firearm bans was never an issue the Heller Court

purported to resolve. While referring to such laws and others

as “longstanding,” the Court “fail[ed] to cite any colonial

analogues,” Heller, 554 U.S. at 721 (Breyer, J., dissenting),

and clarified that it was “not providing [an] extensive

18 USA V. DUARTE

historical justification” for felon firearm bans because Heller

was its “first in-depth examination of the Second

Amendment,” not an attempt “to clarify the entire field,” id.

at 635. “[T]here w[ould] be time enough to expound upon

the historical justifications for [these and other] exceptions,”

Heller promised, “if and when th[ey] . . . come before us.”

Id.; see also Vongxay, 594 F.3d at 1117 n.4 (acknowledging

Heller “anticipated the need for such historical analy[is]”).

The Court has yet to explore this country’s history of

banning felons from possessing firearms.

Until then, we can

no longer “assum[e],” by way of Heller’s footnoted caveat,

the “propriety of [every] felon firearm ban” that comes

before us. See United States v. Phillips, 827 F.3d 1171, 1175

(9th Cir. 2016). “Nothing allows us to sidestep Bruen in

th[is] way.”

Atkinson v. Garland, 70 F.4th 1018, 1022 (7th

When that day comes, perhaps the Court will also clarify how far back

felon firearm prohibitions must stretch to qualify as “longstanding.” We

are confident, however, that anything postdating the 19th century is not

what the Court has in mind. See, e.g., Bruen, 597 U.S. at 30 (discussing

Heller’s reference to “longstanding” laws “forbidding the carrying of

firearms in sensitive places” and concluding that such laws consisted of

a limited set of “18th- and 19th-century” regulations prohibiting firearms

in “schools and government buildings”); Joseph G.S. Greenlee,

Disarming the Dangerous: The American Tradition of Firearm

Prohibitions, 16 Drexel L. Rev. 1, 73 (2024) (determining that

“Founding era history is paramount” because, as the Court recognized in

Bruen, “not all history is created equal” and “[c]onstitutional rights are

enshrined with the scope they were understood to have when the people

adopted them”).

Even before Bruen, we were uncomfortable with Vongxay’s reliance on

Heller’s “presumptively lawful” footnote. In United States v. Phillips,

we upheld a defendant’s § 922(g)(1) conviction against a Second

Amendment challenge because Vongxay’s reading of Heller’s footnote

“foreclose[d]” the defendant’s constitutional claim. 827 F.3d at 1174.

“Nevertheless, there [we]re good reasons to be skeptical of the

USA V. DUARTE 19

Cir. 2023); see also Baird v. Bonta, 81 F.4th 1036, 1043 (9th

Cir. 2023) (“Bruen clarified the appropriate legal framework

to apply when a . . . statute [is challenged] under the Second

Amendment.”).

Had the Court in Bruen endorsed simply deferring to

Heller’s “presumptively lawful” footnote, the outcome of

that case would have been much different. “[L]aws

forbidding the carrying of firearms in sensitive places” were

another one of the categories of “‘longstanding’ . . . and

‘presumptively lawful’ regulatory measures” that Heller’s

footnote mentioned. Jackson v. Cty. & County of San

Francisco, 746 F.3d 953, 959 (9th Cir. 2014) (quoting

Heller, 554 U.S. at 626–27, 627 n.26); see Bruen, 597 U.S.

at 30. But rather than go along with New York’s “attempt[]

to characterize [its] proper-cause requirement as a

[longstanding] ‘sensitive-place’” regulation under Heller,

the Bruen Court rejected, as having “no historical basis,” the

argument that “New York [could] effectively declare the

island of Manhattan a ‘sensitive place’” where public carry

could be categorically banned. Id. at 30–31. As with any

other firearm regulation challenged under the Second

Amendment, Bruen clarified, courts must now analyze

“sensitive place” laws by analogizing them to a sufficiently

comparable historical counterpart. See id. at 30.

It would be “fundamentally inconsistent” with Bruen’s

analytical framework to treat felon firearm bans any

constitutional correctness” of Vongxay’s deference to Heller’s footnote.

Id. “Heller’s caveat endorsed only ‘longstanding’ regulations on

firearms, naming felon bans in the process,” and “[y]et courts and

scholars are divided over how ‘longstanding’ tho[se] bans really are.”

Id.; see also id. at n.2 (collecting sources). Even Vongxay conceded that

this “historical question ha[d] not been definitively resolved.” 594 F.3d

at 118 (citing some of the same sources).

20 USA V. DUARTE

differently, as nothing in the majority opinion implies that

we can jettison Bruen’s test for one “presumptively lawful”

category of firearm regulations but not others (e.g., sensitive

place regulations). See Rodriguez, 728 F.3d at 979. And far

from what the dissent suggests, applying Bruen to laws like

§ 922(g)(1) will not “uproot” any “longstanding

prohibitions” on felons possessing firearms. Dissent at 73.

To the extent any such “longstanding” tradition exists, Bruen

would require us to uphold § 922(g)(1). But to do that, we

must first flesh out what the relevant tradition is and how it

compares to the law before us. That is the whole point of the

“analogical inquiry” at Bruen’s second step, which played

no role in Vongxay’s reasoning.

The Government understandably downplays Vongxay’s

heavy reliance on prior cases that are clearly inconsistent

with Bruen. See also Dissent at 68–69, 71. It also concedes

by omission that Vongxay did not apply the two-step textual

and historical methodology that Bruen requires. The

Government argues instead that (if you squint hard enough)

it is clear Bruen endorsed Vongxay’s “conclusion” that

Congress may categorically disarm all felons for life because

the Court referred to the petitioners in Bruen as “law

abiding” and “responsible” citizens not once, not twice, but

14 times.

First, whether Vongxay reached the right “conclusion” is

irrelevant under Miller if “th[at] conclusion [can] no longer

[be] ‘supported for the reasons stated’ in th[e] decision.”

Rodriguez, 728 F.3d at 979 (quoting United States v. Lindsey,

634 F.3d 541, 551 (9th Cir. 2011)); see also Langere, 983

F.3d at 1121 (“[D]eference [to intervening Supreme Court

decisions] extends to the reasoning of . . . the decisions . . .

USA V. DUARTE 21

not just their holdings.”) (emphasis added). Because

Vongxay’s rationale for holding § 922(g)(1) constitutional is

incompatible with Bruen, Vongxay’s holding cannot control.

Second, we do not think that the Supreme Court, without

any textual or historical analysis of the Second Amendment,

intended to decide the constitutional fate of so large a

population in so few words and with such little guidance. See

Range, 69 F.4th at 102 (“[T]he phrase ‘law-abiding,

responsible citizens’ is as expansive as it is vague.”); Dru

Stevenson, In Defense of Felon-in-Possession Laws, 43

Cardozo L. Rev. 1573, 1595 (2022) (“[R]ecent scholarly

estimates of the number of former felons range from 19

million to 24 million.”) (internal citations omitted). “[T]he

criminal histories of the plaintiffs . . . in Bruen,” after all,

“were not at issue in th[at] case,” Range, 69 F.4th at 101, and

“[i]t is inconceivable that [the Supreme Court] would rest

[its] interpretation of the basic meaning of any guarantee of

the Bill of Rights upon such . . . dictum in a case where the

point was not at issue and was not argued,” Heller, 554 U.S.

at 625 n.25. So we agree with the Third Circuit that Bruen’s

scattered references to “law-abiding” and “responsible”

citizens did not implicitly decide the issue in this case.

Range, 69 F.4th at 101; see United States v. Johnson, 256

F.3d 895, 916 (9th Cir. 2001) (separate opinion of Kozinski,

J., Trott, T.G. Nelson, Silverman, JJ.) (statements “uttered in

passing” and “made . . . without analysis” do not bind future

panels).

* * *

Vongxay did not apply anything that resembles the

analytical steps of Bruen’s “mode of analysis” to determine

whether § 922(g)(1) was constitutional under the Second

Amendment. Miller, 335 F.3d at 900 (internal citations

22 USA V. DUARTE

omitted). Vongxay instead relied first on prior decisions from

this circuit and others, the reasoning of which does not

square with Bruen, and then turned to Heller’s passing

footnote referring to “longstanding” felon firearm bans as

“presumptively lawful,” which the Heller Court made

without “providing [any] extensive historical justification,”

Heller, 554 U.S. at 635. We must therefore apply Bruen’s

two-step framework to reconsider § 922(g)(1)’s

constitutionality.

Step one of Bruen asks the “threshold question,” Range,

69 F.4th at 101, whether “the Second Amendment’s plain

text covers” (1) the individual, (2) the type of arm, and

(3) the “proposed course of conduct” that are at issue, Bruen,

597 U.S. at 19, 31–32. Here, as in Bruen, it is undisputed that

the Second Amendment protects the arm in this case (a

handgun) and the conduct involved (simple possession). See

id. at 31–32. All that is left for us to decide is the first textual

element: whether Duarte is among “the people” to whom the

Second Amendment right belongs.

On that issue, Duarte argues that “the people” in the

Second Amendment means all American citizens, which

includes him. Look no further than the Court’s textual

analysis of “the people” in Heller, where the Court construed

that phrase as “unambiguously refer[ring]” not to any

“unspecified subset” of people but to “all members of the

national community,” which includes “all Americans.” Id. at

580–81; see also Bruen, 597 U.S. at 70 (ratifying Heller’s

“all Americans” definition of “the people”). Regardless

whether Duarte is an American citizen, the Government

responds, the Second Amendment excludes felons from “the

people” because the right to keep and bear arms was a

USA V. DUARTE 23

qualified “political” right at the Founding reserved for

members of the “virtuous citizenry.” The right to bear arms,

in other words, was no different from the right to vote, sit on

a jury, or run for office, all of which state legislatures

historically denied felons because their conduct had proved

they were not upright or moral citizens.

Duarte is one of “the people” because he is an American

citizen. Heller resolved this textual question when it held

that “the people” includes “all Americans” because they fall

squarely within our “national community.” Id. at 580–81.

Bruen expressly reaffirmed that reading. 597 U.S. at 70

(“The Second Amendment guaranteed to ‘all Americans’ the

right to bear commonly used arms in public subject to certain

reasonable, well-defined restrictions.”) (quoting Heller, 554

U.S. at 581). Our own analysis of the Second Amendment’s

text and history also confirms that the original public

meaning of “the people” in the Second Amendment

included, at a minimum, all American citizens. We therefore

reject the Government’s position that “the people,” as used

in the Second Amendment, refers to a narrower, “unspecified

subset” of virtuous citizens. See Heller, 554 U.S. at 580.

In Heller, “the people”—the “holder of the [Second

Amendment] right”—was the starting point of the Court’s

textual analysis. Id. at 581. The Court began by tracking that

phrase’s use across various provisions in the Constitution.

While the preamble, Article I, § 2, and the Tenth Amendment

“refer[red] to ‘the people’ acting collectively,” they “deal[t]

with the exercise or reservation of powers, not rights.” Id. at

579–80. Of those provisions that, like the Second

Amendment, referred to the “the people” in the context of

individual rights—the First, Fourth, and Ninth

24 USA V. DUARTE

Amendments—the phrase was used as a “term of art” that

“unambiguously refer[red] to all members” of the “political”

or “national community,” not “an unspecified subset.” Id. at

580. The Court then closed this part of its textual analysis by

concluding that there is “a strong presumption that the

Second Amendment right is exercised individually and

belongs to all Americans.” Id. at 581 (emphasis added).

The Government argues that the Court in Heller never

meant to define the scope of “the people” when it said those

words. We are urged to think about it less as a statement of

law and more as a “comment” the Heller Court made as a

warmup to its ultimate conclusion “[t]hat the [Second]

Amendment confers an individual right unrelated to militia

service.” If the court wants guidance from Heller as to who

“the people” are, we should focus instead on Heller’s

concluding remarks at the tail-end of the opinion, where the

Court stated that “whatever else it leaves to future

evaluation, [the Second Amendment] surely elevates above

all other interests the right of law-abiding, responsible

citizens to use arms in defense of hearth and home.” Heller,

554 U.S. at 635.

The Court’s textual analysis of “the people” in Heller

hardly reads as a “mere[] . . . prelude to another[,] [more

important] legal issue that command[ed] the [Court’s] full

attention.” Johnson, 256 F.3d at 914–16; see Range, 69 F.4th

at 101. The Second Amendment’s use of “the people” to

“descri[be] the holder of th[e] right” was “[t]he first salient

feature of the [Amendment’s] operative clause” that

dominated the Heller Court’s textual analysis—the second

being the Amendment’s phrase “to keep and bear arms,”

which described “the substance of the right.” Heller, 554

U.S. at 580–81. Thus, defining who “the people” were and

the “substance” of the right they held were both equally

USA V. DUARTE 25

necessary to Heller’s holding. See id. at 581 (“We move now

from the holder of the right—‘the people’—to the substance

of the right: ‘to keep and bear Arms.’”). Only after “[p]utting

. . . these [two] textual elements together” did the Court

conclude that the “[m]eaning” of the Second Amendment

“guarantee[s] the individual right to possess and carry

weapons in case of confrontation.” Id. at 592 (emphasis

added).

So we agree with Duarte that Heller read “the people” in

the Second Amendment as “unambiguously refer[ring] . . .

not to an unspecified subset” but to “all Americans,” who are

indisputably “part of the national community.” Id. at 580–

81; see also Bruen, 597 U.S. at 70 (“The Second Amendment

guaranteed to ‘all Americans’ the right to bear commonly

used arms in public subject to certain reasonable, well-

defined restrictions.”) (quoting Heller, 554 U.S. at 581);

McDonald v. City of Chicago, Ill., 561 U.S. 742, 767–68

(2010) (“[W]e concluded[] [in Heller that] citizens must be

‘permitted to ‘use [handguns] for the core lawful purpose of

self-defense.’”) (citing Heller, 554 U.S. at 630). With that,

we join the growing number of circuits to give authoritative

weight to Heller’s “national community” definition for “the

people.”

See, e.g., United States v. Daniels, 77 F.4th 337, 342 (5th Cir. 2023)

(“The right to bear arms is held by ‘the people.’ That phrase

‘unambiguously refers to all members of the political community[’] . . .

not a special group of upright citizens. . . . Even as a marihuana user,

Daniels is a member of our political community.”) (citations omitted);

Range, 69 F.4th at 101, 103 (“[T]he Second Amendment right, Heller

said, presumptively ‘belongs to all Americans.’ . . . We reject the

Government’s contention that only ‘law-abiding, responsible citizens’

are counted among ‘the people[,]’ . . . [and] conclude that Bryan Range

remains among ‘the people’ despite his [felony] conviction.”); United

26 USA V. DUARTE

Our own analysis of the Second Amendment’s text, “as

informed by [its] history,” confirms that “the people”

included, at a minimum, all American citizens—without

qualification. Bruen, 597 U.S. at 19. Mindful that “the

Constitution was written to be understood by the voters,” we

begin with the ‘“normal and ordinary’ meaning of the

Second Amendment’s language.” Heller, 554 U.S. at 557

(quoting United States v. Sprague, 282 U.S. 716, 731

(1931)). We also consider the same pre- and post-ratification

sources that Heller looked to because when it comes “to

determin[ing] the public understanding of a legal text in the

period after its enactment or ratification,” the historical

record serves as “a critical tool of constitutional

interpretation.” Bruen, 597 U.S. at 20 (emphasis in original)

(quoting Heller, 554 U.S. at 605).

What we gather from history is that ordinary English

speakers at the Founding understood the “people” to refer to

“the whole Body of Persons who live in a Country[] or make

up a Nation.” N. Bailey, An Universal Etymological English

Dictionary 601–02 (1770). The “most useful and

authoritative [contemporaneous-usage] dictionaries” of the

Founding-era uniformly defined the term this way.

Antonin

States v. Jimenez-Shilon, 34 F.4th 1042, 1046 (11th Cir. 2022) (observing

“even . . . dangerous felons and those suffering from mental illness” are

“indisputably part of ‘the people’”); United States v. Jimenez, 895 F.3d

228, 233 (2d Cir. 2018) (“[A]t least members of the ‘national

community’ or those with a ‘sufficient connection’ with that community

are part of the ‘people’ covered by the Second Amendment.”).

See, e.g., Noah Webster, American Dictionary of the English Language

600 (1st ed. 1828) (“The body of persons who compose a community,

town, city, or nation.”); Thomas Dyche, A New General English

Dictionary 626 (14th ed. 1776) (“[E]very person, or the whole collection

USA V. DUARTE 27

Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 419 (1st ed. 2012). This broad definition—

with its focus on residency—largely overlapped with the

commonly understood meaning of “citizens” at that time.

Compare People, Webster, supra, at 600 (“The body of

persons who compose a community, town, city, or nation”),

with e.g., Citizen, Dyche, supra, at 156 (“[A] freeman or

inhabitant of a city or body corporate.”). Other Founding-era

sources likewise used the two terms synonymously. See, e.g.,

THE FEDERALIST NO. 2, at 10 (John Jay) (Jacob E. Cooke ed.

1961) (“To all general purposes we have uniformly been one

people each individual citizen everywhere enjoying the same

national rights, privileges, and protection.”); THE

FEDERALIST NO. 14 (James Madison) (“Hearken not to the

unnatural voice which tells you that the people of

America[] . . . can no longer be fellow citizens of one great,

respectable, and flourishing empire.”); Douglass v. Stephens,

1 Del. Ch. 465, 467 (1821) (“[T]he people of the United

States . . . resist[ed] the . . . British King and Parliament . . . .

[T]hey knew that they were practically, as well as legally,

fellow-citizens, . . . enjoying every right and privilege

indiscriminately with the inhabitants.”).

This notion that one’s status as a “citizen” signified his

membership among “the people” traces its roots to English

common law. In his Commentaries on the Laws of England,

William Blackstone explained that every “[n]atural-born

subject[]” of England “fall[s] under the denomination of the

people” because his birth within the realm creates an

“intrinsic” duty of allegiance, a “tie . . . which binds [him] to

of inhabitants in a nation or kingdom.”); Samuel Johnson, A Dictionary

of the English Language 297 (6th ed. 1785) (“A nation; those who

compose a community.”).

28 USA V. DUARTE

the king.” 2 William Blackstone, Commentaries *366 (St.

George Tucker ed. 1803) (1767); see also William

Blackstone, An Analysis of the Laws of England 24 (6th ed.

1771) (“Allegiance is the duty of all subjects; being the

reciprocal tie of the People to the Prince.”) (emphasis

added). But this “tie” went both ways. “[B]y being born

within the king’s” realm, Blackstone continued, all “natural-

born subjects . . . acquire” a “great variety of rights,” id. at

*371, including “the fundamental right[] of Englishmen,” to

“hav[e] arms for their defence,” see Heller, 554 U.S. at 594

(citing 1 Tucker’s Blackstone, supra, at *136, *139–40);

Jimenez-Shilon, 34 F.4th at 1047 (citations omitted). “[T]he

colonists considered themselves to be vested with th[ese]

same fundamental rights” because, as British subjects, they

counted themselves among “the People of Great Britain.”

McDonald, 561 U.S. at 816, 817 (Thomas, J., concurring in

part and concurring in judgment) (quoting The

Massachusetts Resolves (Oct. 29, 1765), reprinted in

Prologue to Revolution: Sources and Documents on the

Stamp Act Crisis, 1764–1766, p.56 (E. Morgan ed. 1959)).

That “the people” referred (at a minimum) to all citizens,

and that the “right of the people” to keep and bear arms was

a fundamental right of every citizen, is also “confirmed by

[the] analogous arms-bearing rights in state constitutions

that preceded and immediately followed adoption of the

Second Amendment.” Heller, 554 U.S. at 600. The “most

relevant” of these examples are the ten “state constitutional

provisions written in the [late] 18th century or the first two

decades of the 19th.” Id. at 582. While three of those states—

Indiana, Missouri, and Ohio—described the Second

Amendment right as belonging to “the people,” Eugene

Volokh, State Constitutional Rights to Keep and Bear Arms,

11 Tex. Rev. L. & Pol. 191, 209 (2006), six states—Alabama,

USA V. DUARTE 29

Connecticut, Kentucky, Maine, Mississippi, and

Pennsylvania—expressly conferred it to “the citizens” or

“every citizen.”

Tennessee, in addition, described the right

as belonging to all “freemen,” another term for “citizens.”

TENN. CONST. art. I, § 26; see, e.g., Citizen, Samuel Johnson,

A Dictionary of the English Language 297 (6th ed. 1785) (“A

freeman of a city; not a foreigner; not a slave.”); see also

Simpson v. State, 13 Tenn. 356, 360 (1833) (“By this clause

of the constitution, an express power is . . . secured to all the

free citizens of the state to keep and bear arms for their

defence.”) (emphasis added).

“That of the[se] . . . state constitutional protections . . .

enacted immediately after 1789, at least seven unequivocally

protected [every] individual citizen’s right to self-defense is

strong evidence that this is how the founding generation

conceived of the right.” Heller, 554 U.S. at 603. “These

provisions,” after all, offer “the most analogous linguistic

context” for discerning how the public understood the

Second Amendment right. Id. at 585–86. And “[i]t is clear

from th[eir] formulations that,” when describing the holder

of the right, the Founding generation used “the people” and

“the citizens” interchangeably. Id. at 585.

The “three important founding-era legal scholars [to]

interpret[] the Second Amendment”—William Rawle,

Joseph Story, and St. George Tucker—likewise equated “the

people” with “citizens” and described the right to keep and

bear arms as an all-citizens’ right. Id. at 605. In his

“influential treatise,” Rawle spoke of “[the] people [who are]

permitted and accustomed to bear arms . . . [as] properly

ALA. CONST. art. I, § 27; CONN. CONST. art. I, § 15; KY. CONST. of

1792, art. XII, cl. 23; M

E. CONST. of 1819, art. I, § 16; MISS. CONST. of

1817, art. I, § 23; P

A. CONST. art. 1, § 21; see Volokh, supra, at 208–09.

30 USA V. DUARTE

consist[ing] of armed citizens.” Id. at 607 (quoting W.

Rawle, A View of the Constitution of the United States of

America 140 (1825)) (emphasis added). Story similarly

wrote that “[t]he right of the citizens to keep and bear arms

has justly been considered as the palladium of the

liberties . . . [I]t offers a strong moral check against the . . .

arbitrary power of rulers . . . [and] enable[s] the people to

resist and triumph over them.” Heller, 554 U.S. at 607–08

(quoting 2 J. Story, Commentaries on the Constitution of the

United States § 1897, pp. 620–21 (4th ed. 1873)) (emphasis

added). And Tucker, in his notes to Blackstone’s

Commentaries, described the holder of the arms right mostly

broadly of all: “[A]ll men, without distinction, . . . are

absolutely entitled . . . [to] th[e] right of self-preservation.”

2 Tucker’s Blackstone, supra, at 145–46 n. 42 (1803)

(emphasis added); see Heller, 554 U.S. at 594–95 (citing

id.).

Mid-19th-century cases interpreting the Second

Amendment carried on this unbroken tradition of referring

to the right to keep and bear arms as every citizen’s right.

See, e.g., Heller, 554 U.S. at 612 (quoting United States v.

Sheldon, in 5 Transactions of the Supreme Court of the

Territory of Michigan 337, 346 (W. Blume ed. 1940) (“The

constitution of the United States also grants to the citizen the

right to keep and bear arms.’”)); State v. Chandler, 5 La.

Ann. 489, 490 (1850) (describing the Second Amendment as

protecting every “man’s right to carry arms . . . ‘in full open

view’”). The Georgia Supreme Court’s decision in Nunn v.

State, 1 Ga. 243, 251 (1846), for instance—a case that

“perfectly captur[ed]” the import of the Second

Amendment’s text—described the right as belonging to “the

whole people, old and young, men, [and] women . . . .”

Heller, 554 U.S. at 612 (quoting id.) (emphasis added).

USA V. DUARTE 31

We will stop there, although we could go on. See

McDonald, 561 U.S. at 773–74 (“[T]he Civil Rights Act of

1866, . . . which was considered at the same time as the

Freedmen’s Bureau Act, similarly sought to protect the right

of all citizens to keep and bear arms.”) (emphasis added). We

are confident that, “by founding-era consensus,” the “right

of the people” to keep and bear arms was publicly

understood as the fundamental right of every citizen. United

States v. Huitron-Guizar, 678 F.3d 1164, 1168 (10th Cir.

2012).

Against this weight of evidence, the Government tells us

that “the people” protected by the Second Amendment

historically included not all citizens but rather a subset of

them—namely, members of the “virtuous citizenry.” As its

one and only example from history, the Government quotes

the most favorable language from 19th-century

commentator Thomas Cooley’s “massively popular”

Treatise on Constitutional Limitations. Heller, 554 U.S. at

616. In that work, Cooley wrote that “the people, in the legal

sense, must be understood to be those who . . . are clothed

with political rights,” such as the right of “elective

franchise.” Thomas M. Cooley, A Treatise on the

Constitutional Limitation Which Rest upon the Legislative

Power on the States of the American Union ch. III, 39 (4th

ed. 1878). When used “in this connection,” he continued,

“[c]ertain classes have been almost universally excluded”

from “the people,” such as the “slave, . . . the woman, . . . the

infant, the idiot, the lunatic, and the felon.” Id. at 36, 37

(emphasis added). “The theory” was that these groups

“lack[ed] either the intelligence, . . . the liberty of action,”

or, in the case of felons, “the virtue” that was “essential to

the proper exercise of the elective franchise.” Id. at 37. So

32 USA V. DUARTE

they “are compelled to submit to be ruled by an authority in

the creation of which they ha[d] no choice.” Id. at 36.

Cooley was referring to the “idiomatic” meaning of “the

people” used in select parts of the Constitution that “deal

with the exercise or reservation of [the] powers, not [the

individual] rights” of “the people.” See Heller, 554 U.S. at

579–80. Indeed, the notion that the right to vote was among

the “natural right[s]” of “the people” was, in Cooley’s view,

“utterly without substance” because it “d[id] not exist for the

benefit of the individual, but for the benefit of the state

itself.” Cooley, General Principles of Constitutional Law in

the United States of America ch. XIV, § II at 248–49 (1880);

see also Kanter v. Barr, 919 F.3d 437, 462 (7th Cir. 2019)

(Barrett, J., dissenting) (“For example, the right to vote is

held by individuals, but they do not exercise it solely for their

own sake; rather, they cast votes as part of the collective

enterprise of self-governance.”). When used to describe the

fundamental rights of individuals, as opposed to their

powers, Cooley clarified that “the people” took on the much

broader “all-citizens” definition that we have described all

along. He explained this difference in meaning when

discussing the First Amendment in his 1880 work, General

Principles of Constitutional Law:

The first amendment to the Constitution

further declares that Congress shall make no

law abridging the right of the people

peaceably to assemble and to petition the

government for a redress of grievances. . . .

When the term the people is made use of in

constitutional law or discussions, it is often

the case that those only are intended who

have a share in the government through being

USA V. DUARTE 33

clothed with the elective franchise . . . But in

all the enumerations and guaranties of rights

the whole people are intended[.] . . . In this

case, therefore, the right to assemble is

preserved to all the people, and not merely to

the electors, or to any other class or classes

of the people.

Id. at 267 (emphasis added). So we add Cooley to the already

long list of influential writers who understood “the people,”

in the rights’ context, to mean the whole body of citizens,

and the “right of the people to keep and bear arms” as every

citizen’s right.

* * *

“[W]ith respect to [whom] the right to keep and bear

arms” belongs, “[n]othing in the Second Amendment’s text

draws a . . . distinction” between those who are virtuous and

those who are not. See Bruen, 597 U.S. at 32 (emphasis

added) (finding no distinction between public versus private

carry in the phrase “keep and bear arms”). Because Duarte’s

status as an American citizen places him among “the people”

protected by the Second Amendment’s “bare text,” “[t]he

Second Amendment . . . presumptively guarantees” his right

to possess a firearm for self-defense. Bruen, 597 U.S. at 33,

44 n.11. The Government now “shoulder[s] the burden of

demonstrating” at step two of Bruen that § 922(g)(1) “is

consistent with the Second Amendment’s . . . historical

scope.”

Id. at 44 n.11.

While Bruen offered no explicit guidance on who bears the burden at

step one, “[w]e need not decide that issue here because our conclusion

that the Second Amendment presumptively protects” Duarte “would

stand regardless.” Perez-Garcia, 96 F.4th at 1178 n.8.

34 USA V. DUARTE

At Bruen’s second step, the Government must prove that

it “is consistent with this Nation’s historical tradition of

firearm regulation” for Congress to ban permanently, by

making it a felony, a non-violent offender like Duarte from

possessing a firearm even after he has already served his

terms of incarceration. See id. at 34. Because “[b]ans on

convicts possessing firearms were unknown [in the United

States] before World War I,” Chovan, 735 F.3d at 1137

(quoting C. Kevin Marshall, Why Can’t Martha Stewart

Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 698, 708

(2009)), the Government must identify for us “a well-

established and representative historical analogue” to

§ 922(g)(1) that can justify the law’s application to Duarte,

Bruen, 597 U.S. at 30. In assessing whether the Government

has met its burden, the two “central considerations” that

guide our analysis are “how and why” the Government’s

proposed analogues burdened the Second Amendment right.

Id. (citations omitted). Did these historical examples, we

must ask, “impose a comparable burden on the right of

armed self-defense” (Bruen’s “how”) that was “comparably

justified” (Bruen’s “why”) as compared to § 922(g)(1)? Id.

at 29.

One final point of order. While the Government does not

have to find for us a historical “dead ringer” to § 922(g)(1),

a law that “remotely resembles” a felon firearm ban is not

enough. Id. at 30. We are looking for something in between

these two endpoints. On that score, Bruen offers some

additional guidance. If the law at issue is a “distinctly

modern firearm regulation[]” because it addresses a societal

problem “unimaginable at the founding,” the Government’s

historical analogues need only be “relevantly similar” to the

USA V. DUARTE 35

challenged law. Id. at 28–29; see Perez-Garcia, 96 F.4th at

1182; Alaniz, 69 F.4th at 1129–30.

Section 922(g)(1), however, takes aim at “[]gun

violence” generally, which is a “problem that has persisted

[in this country] since the 18th century.” Bruen, 597 U.S. at

26, 27. And § 922(g)(1) “confront[s] that problem” with “a

flat ban on the possession of []guns” by the formerly

incarcerated, which no one here disputes is something “that

the Founders themselves could have adopted.” Id. at 27.

Thus, the fact that the “[t]he Founding generation had no

laws limiting gun possession by . . . people convicted of

crimes,” Adam Winkler, Heller’s Catch-22, 56 UCLA Law

Rev. 1551, 1563 (2009) (emphasis added)—while not fatal

to the Government’s case—means that “the lack of a . . .

historical regulation” that is “distinctly similar” to

§ 922(g)(1) is strong if not conclusive “evidence” that the

law “is inconsistent with the Second Amendment,” Bruen,

597 U.S. at 27; see also Baird, 81 F.4th at 1047 (“Because

states in 1791 and 1868 also grappled with general gun

violence, California must provide analogues that are

‘distinctly similar.’”); Range, 69 F.4th at 103 (similar). We

turn now to the Government’s evidence.

The Government’s first proposed category of historical

analogues are not firearm regulations per se but a trio of draft

proposals that certain members of New Hampshire’s,

Massachusetts’s, and Pennsylvania’s state conventions

recommended adding to the Constitution prior to its

ratification. New Hampshire’s convention offered language

providing that “Congress shall never disarm any citizen,

unless such as are or have been in actual rebellion.” 1

Jonathan Elliot, The Debates in the Several State

36 USA V. DUARTE

Conventions on the Adoption of the Federal Constitution 326

(2d ed. 1891). “Samuel Adams and other delegates

unsuccessfully urged the Massachusetts convention to

recommend” adding a provision to the Constitution that it

“be never construed to authorize Congress to . . . prevent the

people of the United States, who are peaceable citizens, from

keeping their own arms.” Marshall, supra, at 713 (quoting 2

Bernard Schwartz, The Bill of Rights: A Documentary

History 674–75 (1971) (emphasis added)). A minority of

Pennsylvania’s convention lastly proposed language that

read: “[T]he people have a right to bear arms for the defense

of themselves . . . and no law shall be passed for disarming

the people or any of them unless for crimes committed, or

real danger of public injury from individuals.” 2 Schwartz,

supra, at 665 (emphasis added)).

“It is dubious” at best whether several, rejected

“proposals [made] in the state conventions,” Heller, 554

U.S. at 603, can—consistent with Bruen’s second step—

amount to a “well-established and representative” national

tradition of regulating firearms, Bruen, 597 U.S. at 30; see

also Heller, 554 U.S. at 590 (“It is always perilous to derive

the meaning of an adopted provision from []other

provision[s] deleted in the drafting process.”). None of the

proposals, obviously, found its way into the Second

Amendment. The two most restrictive ones (Pennsylvania’s

and Massachusetts’s) failed to carry a majority vote within

their own states. See Don B. Kates, Jr., Handgun Prohibition

and the Original Meaning of the Second Amendment, 82

Mich. L. Rev. 204, 222 (1983). And neither of those two

states, we add, incorporated the language of its proposal into

USA V. DUARTE 37

the Second Amendment provision of its own constitution.

See, e.g., PA. CONST. art. 1, § 21 (1790); MASS. CONST. pt.

1, art. 17 (1780); see Volokh, supra, at 208. All told, a

handful of failed proposals “deleted in the drafting process,”

Heller, 554 U.S. at 590, without more, offers “too dim a

candle,” to illuminate “how and why” the Founding

generation restricted the Second Amendment right, see

Folajtar v. Attorney General, 980 F.3d 897, 915 (3d Cir.

2020) (Bibas, J., dissenting). “But even assuming that this

legislative history is relevant,” Heller, 554 U.S. at 603; see

Perez-Garcia, 96 F.4th at 1188, we agree with now-Justice

Barrett that “[t]he common concern [among] all three” of the

proposals was “not about felons in particular or even

criminals in general” but those whose conduct “threatened

violence and the risk of public injury,” Kanter, 919 F.3d at

456 (Barrett J., dissenting).

Start with New Hampshire’s proposal. It empowered

Congress to disarm only those who “are or have been in

actual rebellion,” which was a crime against the state that

denoted violence. Id. at 456 (citing Rebellion, 2 New

Universal Etymological English Dictionary (4th ed. 1756)

(defining “rebellion” as “traitorous taking up [of] arms, or a

tumultuous opposing [of] . . . the nation”)). Adams’s

proposal in the Massachusetts convention permitted

disarming only citizens who were not “peaceable,” a term

that at the time meant “[f]ree from war; free from tumult”;

“[q]uiet; undisturbed”; “[n]ot violent; not bloody”; “[n]ot

quarrelsome; not turbulent.” Samuel Johnson, A Dictionary

of the English Language (5th ed. 1773), quoted in Kanter,

919 F.3d at 455 (Barrett, J., dissenting). “Far from banning

Nor did New Hampshire, which did not ratify an arms right provision

in their constitution until 1982. See Volokh, supra, at 199.

38 USA V. DUARTE

the [possession] of . . . firearms” by any class of criminal,

Adams’s proposal “merely [sought to] codif[y] the existing

common-law” tradition of disarming those who “b[ore] arms

to terrorize the people, as had [been done since] the Statute

of Northampton” in 1328. See Bruen, 597 U.S. at 46–47;

compare id. (citing Massachusetts’s colonial law

“authoriz[ing] justices of the peace to arrest ‘all Affrayers,

Rioters, Disturbers, or Breakers of the Peace’”) (1692 Mass.

Acts and Laws no. 6, pp 11–12)), with Kanter, 919 F.3d at

455 (Barrett J. dissenting) (“Those who ‘breach[ed] the

peace’ caused ‘[a] violation of the public peace, as by a riot,

affray, or any tumult which [wa]s contrary to law, and

destructive to the public tranquility.’”) (quoting Noah

Webster, An American Dictionary of the English Language

(1828))). Only the Pennsylvania minority’s proposal—

which would have allowed disarming those “for crimes

committed, or [for] real danger of public injury”—comes

close to “suggest[ing]” the categorical disarmament of all

lawbreakers. Perez-Garcia, 96 F.4th at 1188. But see Bruen,

597 U.S. at 66 (“[W]e will not give disproportionate weight

to a single state statute and a pair of state-court decisions.”).

But when read together with the remaining clause “or [for]

real danger of public injury,” the more plausible

interpretation is that “crimes committed” referred to a

narrower “subset of crimes [that] suggest[ed] a proclivity for

violence.” Kanter, 919 F.3d at 456 (Barrett J., dissenting);

Scalia, supra, at 112 (explaining that “or,” when “set off by

commas,” “introduces a definitional equivalent”).

On balance, then, the draft proposals allude to a possible

tradition of disarming a narrow segment of the populace who

posed a risk of harm because their conduct was either violent

or threatened future violence. That does not offer a

“distinctly similar” justification for an across-the-board

USA V. DUARTE 39

disarming of non-violent offenders like Duarte. Bruen, 597

U.S. at 26. We move on to the Government’s second

category of historical analogues.

The Government next refers us to 17th- to early 19th-

century colonial and American laws that disarmed groups

whom the Founding generation, according to the

Government, “deemed untrustworthy based on [their] lack

of adherence to the rule of law.” At the height of the

Revolutionary War, British Loyalists who refused to swear

allegiance to the new republic were dispossessed of their

firearms. Infra Part a. Catholics were disarmed in England

once the Protestants seized power after the Glorious

Revolution; several colonies passed similar Catholic-

disarmament laws during the French and Indian War. Infra

Part b. Bans on selling arms to Indians were a matter of

course in the early American colonies. Infra Part c. And

Blacks, free and enslaved alike, were routinely deprived of

their arms. Infra Part d. Repugnant as these laws are by

modern standards, the Government maintains that they

represent a longstanding tradition in this country of

disarming groups whom legislatures thought were

“unwilling” to comply with the law.

Laws that disarmed British Loyalists, Catholics, Indians,

and Blacks fail both the “why” and “how” of Bruen’s

analogical test. First, the “why.” There is a solid basis in

history to infer that states could lawfully disarm these groups

because they “were written out of ‘the people’” altogether.

Rahimi, 61 F.4th at 457. But Duarte is an American citizen

and counts among “the people” by both modern and

Founding-era standards. And insofar as legislatures passed

these laws to prevent armed insurrections by dangerous

40 USA V. DUARTE

groups united along political, ideological, or social lines, the

Government offers no historical evidence that the Founding

generation perceived formerly incarcerated, non-violent

criminals as posing a similar threat of collective, armed

resistance.

As to the nature of the burden on the Second Amendment

right (the “how” under Bruen) most of the historical

examples we have seen were far less reaching than

§ 922(g)(1). During the American Revolution, states

generally allowed British Loyalists to regain their arms once

they swore loyalty to the new republic. Infra Part C.2.a.

Catholics still retained “such necessary weapons” for their

own self-defense. Bruen, 597 U.S. at 45 n.12 (quoting 1 Wm.

& Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)). Many

colonial-era firearm regulations targeting Indians did not

even disarm this group but instead banned the sale of arms

to them. Infra Part C.2.c. Even laws prohibiting Blacks from

possessing arms still allowed for (albeit narrow) exceptions.

Infra Part C.2.d. What this all tells us is that the burden on

the Second Amendment right under these laws did not

persist for life for these groups. It was subject to certain

need-based or case-specific exemptions or could end

altogether when evidence undermined the justification for

the disability. That stands in stark contrast to § 922(g)(1)’s

lifelong, no-exception, categorical ban. The Government’s

proffered analogues are thus not “distinctly similar” to

§ 922(g)(1) in both “how and why” these laws burdened the

Second Amendment right.

a. Laws disarming British Loyalists or “disaffected”

persons.

When the Revolutionary War was in full swing, early

state legislatures routinely condemned “disaffected” persons

USA V. DUARTE 41

as “enem[ies] to the American cause,” who “spread [their]

disaffection” from within to the detriment of the war effort.

Act of 1779, 9 The Statutes at Large of Pennsylvania from

1682 to 1801 441 (1903). “[T]here [wa]s great reason to

believe” that “dangerous and disaffected” persons

“communicate[d] intelligence to the [British] enemy,” and

were inclined to either join or support an insurrection should

one arise. Act of 1778, 1 Laws of the State of New York

Passed at the Sessions of the Legislature 50 (1777-1784);

Act of 1780, 10 Statutes at Large; Being a Collection of All

the Laws of Virginia, from the First Session of the

Legislature in the Year 1619 310–11 (Hening ed. 1822)

(“[C]omit[ting] to close confinement[] any person . . .

suspect[ed] of disaffection” in the event of invasion or

insurrection). So much so did this class of people concern

the new nation that the Continental Congress “recommended

. . . disarm[ing] 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

Colonies.’” Joseph G.S. Greenlee, The Historical

Justification for Prohibiting Dangerous Persons from

Possessing Arms, 20 Wyo. L. Rev. 249, 264 (2020) (quoting

1 Journals of the Continental Congress, 1774-1789, at 285

(1906)). Six of the states heeded this advice by enacting

oath-or-disarmament laws, which stripped individuals of

their arms if they refused to “renounc[e] all allegiance to the

now-foreign sovereign George III in addition to swearing

allegiance to one’s State.”

Marshall, supra, at 724–25.

Act of 1779, 9 Statutes at Large of Pennsylvania, supra, at 347–48;

Act of 1776, 5 The Acts and Resolves, Public and Private, of the Province

of Massachusetts Bay 479 (1886); 1777 Act of Va., 9 Statutes at Large,

supra, at 282; Act of 1776, 7 Records of the Colony of Rhode Island and

Providence Plantations in New England 567 (Bartlett ed. 1862); Act of

42 USA V. DUARTE

The Government would have us conclude that the reason

the states disarmed “disaffected” persons was “because their

actions evinced an unwillingness to comply with the legal

norms of the nascent social compact.” That is far too

generalized an abstraction to draw and ignores the historical

context in which these laws were passed. See Bruen, 597

U.S. at 42 (noting 16th century “royal efforts at

suppress[ing] . . . handguns” arose not because of “concerns

about their safety but rather their inefficacy”).

The states passed these laws during “the darkest days of

an existential domestic war” between the newly formed

republic and Great Britain. Marshall, supra, at 725. “[N]on-

associat[ors],” the thinking went, not only “refuse[d] . . . to

defend, by arms, th[e] United Colonies,” 1 Journals of the

Continental Congress, 1774-1789, at 285 (1906), but might

also “take up arms against America” in “th[is] present

unhappy dispute,” see Resolution of the Council of Safety,

Jan. 18, 1776, 1 The Revolutionary Records of the State of

Georgia 101 (Candler ed. 1908) (emphasis added).

1777, 24 The State Records of North Carolina 89 (Clark ed. 1905); Act

of 1778, 203 Hanson’s Laws of Maryland 1763-1784 193, 278 (1801).

Several other states passed similar laws. Connecticut disarmed those

who “libel[ed] or defame[d] any of the resolves of the . . . Congress of

the United Colonies” or, upon “complaint being made to the civil

authority,” were found to be “inimical to the liberties of th[e]

Colon[ies].” Act of 1775, 15 The Public Records of the Colony of

Connecticut, From May, 1775, to June 1776 193 (Hoadly ed. 1890). New

York ordered the supplying of its militias with “such good Arms . . . as

they may have collected by disarming disaffected persons,” Order of

1776, 15 Documents Relating to the Colonial History of the State of New

York 103 (Fernow ed. 1887). New Jersey, lastly, empowered its Council

of Safety “to deprive . . . [all] Arms, Accoutrements, and Ammunition”

from “such Person as they shall judge disaffected.” Act of 1777, Acts of

the General Assembly of the State of New Jersey 90 (1777).

USA V. DUARTE 43

Confiscating their weapons—for the time being—was

thought both reasonable and necessary to preserve the new

nation. See Greenlee, supra, at 265 (“Like the English, and

out of similar concerns of violent insurrections, the colonists

disarmed those who might rebel against them.”); Perez-

Garcia, 96 F.4th at 1187 (“The justification was always that

those being disarmed were dangerous.”) (quoting Greenlee,

supra, at 265).

The laws targeting disaffected persons, for example,

certainly read like emergency wartime measures. See, e.g.,

1778 Act of Va., 10 Statutes at Large, supra, at 310–11

(calling for the confinement of disaffected persons “in this

time of public[] danger, when a powerful and vindictive

enemy are ravaging our southern sister states”); 1779 Act of

Pa., 9 Statutes at Large, supra, at 441 (calling for the

“temporary suspension of law” in this “time[] of public

danger” and confining suspected Loyalists). And there is

good reason to think they were, in famed commentator St.

George Tucker’s words, “merely temporary.” 2 Tucker’s

Blackstone, supra, at *368 n.2 (discussing Virginia’s 1777

oath-or-disarmament law); see also Marshall, supra, at 726

(“[T]here is good reason to consider the[se] [laws] not to

have survived through the Founding in anything like their

original form.”). It lastly bears emphasis that only male

inhabitants who qualified for militia service—i.e., men of

fighting age—had to swear an oath. Most states, in other

words, disarmed those who were not just sympathetic to the

prospect of a domestic, armed uprising, but physically

capable of joining one. E.g., 1776 Act of Mass., 5 Acts and

Resolves, supra, at 479 (1886) (requiring “every male person

above sixteen” to swear the oath and disarming those who

“neglect[ed] or refuse[d]”); 1777 Act of Va., 9 Statutes at

Large, supra, at 282 (same); Act of 1777, 24 The State

44 USA V. DUARTE

Records of North Carolina, supra, at 88 (similar); Act of

1776, 7 Records of the Colony of Rhode Island, supra, at 566

(1862) (same); 1777 Act of Penn., 9 Statutes at Large, supra,

at 111.

There is just as good reason to conclude that

“disaffected” persons could be disarmed in toto because they

fell outside “the people” and were therefore deemed to have

no fundamental rights. See Jimenez-Shilon, 34 F.4th at 1048.

Since “an individual’s undivided allegiance to the

sovereign” was a “precondition” to his “membership in the

political community,” British Loyalists “renounced” their

place among “the [American] people” by refusing to swear

a loyalty oath. Jimenez-Shilon, 34 F.4th at 1048 (quoting

United States v. Perez, 6 F.4th 448, 462 (2d Cir. 2021)

(Menashi, J., concurring) (internal quotations omitted)).

At least several states explicitly justified disarming

Loyalists along these lines. North Carolina, for example,

explained that it is “the Duty of every Member of Society to

give proper Assurance of fidelity to the Government from

which he enjoys protection.” Act of 1777, 24 The State

Records of North Carolina, supra, at 88. Those who abstain

from swearing allegiance, “by their refusal . . . to do [so],”

“proclaim that they should no longer enjoy the Privileges of

Freemen [i.e., citizens] of the . . . State.” Id. (emphasis

added). Pennsylvania, Virginia, and Maryland similarly

invoked this idea of a “reciprocal” relationship of

“allegiance and protection” between the citizen and state.

1777 Act of Va., 9 Statutes at Large, supra, at 281; 1778 Act

of Pa., 9 Statutes at Large, supra, at 111; Act of 1777, 203

Hanson’s Laws of Maryland, supra, at 187; Churchill, supra,

at 160 (“Noting that ‘in every free state, allegiance and

protection are reciprocal,’ Maryland[’s] . . . test oath barred

those refusing from . . . keeping arms.”). By refusing to

USA V. DUARTE 45

promise the former, the “disaffected” person swore off “the

benefits of the latter.” E.g., 1777 Act of Va., 9 Statutes at

Large, supra, at 281.

It is no small coincidence either that these “loyalty”

oaths were precursors to the 1795 naturalization oath that the

First Congress later required resident aliens to swear as a

condition for American citizenship. Compare 2 Tucker’s

Blackstone, supra, at *368 n.2 (quoting Virginia’s oath-or-

disarmament law), with id. at *374 n.12 (quoting 1795

federal naturalization law). Thus, “[t]o refuse [that oath in

1777] was to declare oneself [not only] a resident alien of the

new nation,” but, “given the war,” a “resident enemy alien”

who sympathized with a foreign belligerent power. Marshall,

supra, at 725 (emphasis added); see also Thomas Jefferson,

NOTES ON THE STATE OF VIRGINIA 163 (Lilly & Wait eds.,

1832) (“By our separation from Great Britain, British

subjects became aliens, and being at war, they were alien

enemies.”). Consistent with that status change, disarmament

was just one “part of a wholesale stripping of rights and

privileges” that followed from refusing to swear allegiance.

Marshall, supra, at 725. Many states, for example, sent

suspected Loyalists to the “gaol,” where they were held

without bail until they recited the oath. See, e.g., 1779 Act of

Pa., 9 Statutes at Large, supra, at 442; 1777 Act of Va., 9

Statutes at Large, supra, at 282–83. Virginia went one step

further, barring oath-recusants from “suing for any debts . . .

[and] buying lands, tenements, or hereditaments.” 1777 Act

of Va., 9 Statutes at Large, supra, at 282; see also NOTES ON

THE

STATE OF VIRGINIA, supra, at 162 (“By our laws, . . . no

alien can hold lands, nor alien enemy maintain an action for

money, or other moveable thing.”). North Carolina outright

banished those who refused their oath and declared anyone

so banished who returned to the state “guilty of Treason.”

46 USA V. DUARTE

Act of 1777, 24 The State Records of North Carolina, supra,

at 89. The few “permitted . . . to remain in the State” were

not allowed to leave without express “[p]ermission . . .

obtained from the Governor and Council.” Id. Thus, “[b]y

refusing to take an oath of allegiance,” disaffected persons

“forfeited [not just] the state’s protection of their right to

arms,” Jimenez-Shilon, 34 F.4th at 1048, but other

fundamental rights considered intrinsic to one’s membership

among “the people,” see Corfield v. Coryell, 6 F. Cas. 546

(C.C.E.D. Pa. 1823) (enumerating certain “fundamental”

rights of citizens as including “[t]he right . . . to pass through

. . . in any other state, . . . to institute and maintain actions of

any kind[,] . . . [and] to take, hold and dispose of property”).

When viewed through this lens, the Government’s

analogy to laws disarming Loyalists fails the “why” of

Bruen’s second step. Insofar as these laws were meant as

“merely temporary” measures, 2 Tucker’s Blackstone,

supra, at *368 n.2, that “disarm[ed] [a] narrow segment[] of

the population” because they “threaten[ed] . . . the public

safety,” that does not justify permanently disarming all non-

violent felons today, see Perez-Garcia, 96 F.4th at 1189

(citing Kanter, 919 F.3d at 458 (Barrett, J., dissenting)). And

if disarming the British Loyalist naturally followed because

he swore himself out of “the people” by refusing his oath of

allegiance, that reasoning does not carry over to the non-

violent offender who served his prison term. The

Government offered no evidence demonstrating that a

former non-violent convict forever forfeited his legal status

as one of “the people” merely because he sustained a

criminal conviction.

In any case, we doubt that the garden variety horse thief or

counterfeiter, for example, stood on remotely similar legal footing as

USA V. DUARTE 47

Nor did “how” these laws burden the Second

Amendment right come close to approximating

§ 922(g)(1)’s lifetime, no-exception ban. Bruen, 597 U.S. at

29. The laws themselves were short-lived, as we mentioned

earlier, but so was their burden on the Second Amendment

right. Of the “disaffected” who were disarmed, they could

normally regain their arms upon demonstrating they were

not, in fact, “disaffected” to the American cause.

Massachusetts, for instance, provided that disaffected

persons could “receive their arms again . . . by the order of”

the “committees of correspondence, inspection or safety.”

Act of Mass. (1775–76), 5 Acts and Resolves, supra, at 484.

Rhode Island similarly contemplated that those who refused

their loyalty oath could still keep their weapons by providing

“satisfactory reasons” for their recusal. 1776 Act, 7 Records

of the Colony of Rhode Island 567 (Bartlett ed. 1862).

Connecticut’s law spoke most directly to the principle that

disaffected persons were not disarmed for life, qualifying

that he who was found “inimical” to the States would be

disarmed only “until such time as he could prove his

friendliness to the liberal cause.” G.A. Gilbert, The

Connecticut Loyalists, 4 AM. HISTORICAL REV. 273, 282

British Loyalists at the Founding. Depending on the jurisdiction, the

former served several years of “hard Labor” for his nonviolent offense.

See, e.g., An Act for the Punishment of certain atrocious Crimes and

Felonies, Acts and Laws of the State of Connecticut, in America, 183–

84 (1796). While incarcerated, his fundamental rights as one of “the

people” were “merely suspended.” Kanter, 919 F.3d at 461 (Barrett, J.,

dissenting) (citing, e.g., In re Estate of Nerac, 35 Cal. 392, 396 (1868)).

The latter was a “traitor in thought, . . . [if] not in deed,” N

OTES ON THE

STATE O F VIRGINIA, supra, at 165, who had no rights to speak of,

Marshall, supra, at 725 (“The harsh yet simple principle of the

Revolution was that Tories ‘had no civil liberties.’”) (quoting Leonard

W. Levy, Emergence of a Free Press 173 (1985)).

48 USA V. DUARTE

(1899); see Act of Dec. 1775, 15 The Public Records of the

Colony of Connecticut, supra, at 193; see also Journal of the

Council of Safety, 1 The Public Records of the State of

Connecticut 329 (Hoadly ed. 1894) (releasing “George

Folliot of Ridgfield” from custody after he swore to take an

oath of loyalty).

b. Laws disarming Catholics or “Papists.”

Laws disarming Catholics fare arguably worse as

historical analogues to § 922(g)(1) because the Government

“point[s] to only three [such] restrictions.” See Bruen, 597

U.S. at 46. In 1756, Pennsylvania’s and Maryland’s colonies

each enacted militia laws that seized arms belonging to any

“Papist or reputed Papist” and barred them from enlisting in

the local militia. 3 Pennsylvania Archives 131–32 (Samuel

Hazard ed. 1853); 52 Proceedings and Acts of the General

Assembly, 1755-1756 454 (Raphael Semmes ed. 1946). The

Virginia colony, that same year, required “any Person . . .

suspected to be[] a Papist” “to swear allegiance to

Hanoverian dynasty and to the Protestant succession.”

Robert H. Churchill, Gun Regulation, the Police Power, and

the Right to Keep Arms in Early America: The Legal Context

of the Second Amendment, 25 Law & Hist. Rev. 139, 157

(2007). No Catholic “so refusing . . . [could] have any Arms,

Weapons, Gunpowder, or Ammunition.” Act of 1756, 7

Statutes at Large 35–36 (Hening ed. 1820).

It is “doubt[ful] that three colonial regulations” prove

that disarming Catholics as a class ever became a “well-

established” tradition in this country. See Bruen, 597 U.S. at

46 (emphasis in original). The practice appears instead to

have been more of an English novelty that began when “the

deposed King James II . . . disarm[ed] Protestants while

arming . . . Roman Catholics.” Marshall, supra, at 722–21.

USA V. DUARTE 49

Indeed, the inhabitants of Virginia, Pennsylvania, and

Maryland were still British subjects when they passed their

Catholic-disarmament laws, and they did so at the height of

the French and Indian War, “which was perceived by many

. . . as a war between Protestantism and Catholicism.”

Greenlee, supra, at 263. Following independence, the

custom did not seem to secure a strong enough foothold on

this side of the Atlantic to mature into a longstanding

tradition of firearm regulation. We are unaware of any post-

ratification laws disarming Catholics as a class. See id. at 721

(“Like the game laws, the English exclusion of subjects

based on religion ha[d] no place within the Second

Amendment, as early commentators also celebrated.”); see

also Bruen, 597 U.S. at 35 (“[C]ourts must be careful when

assessing evidence concerning English common-law . . .

English common-law practices . . . cannot be

indiscriminately attributed to the Framers of our own

Constitution.”).

We are not even sure that disarming Catholics was that

prevalent in England. “[T]hese laws are seldom exerted to

their utmost rigour,” Blackstone wrote, and “if they were, it

would be very difficult to excuse them.” See 5 Tucker’s

Blackstone, supra, at 57; see id. at 55–56 (summarizing arms

restrictions and other anti-Catholic English laws); see also

Bruen, 597 U.S. at 58 (“[R]espondents offer little evidence

that authorities ever enforced surety laws.”). Episodes like

the foiled Gunpowder Plot of 1605, where Guy Fawkes led

fervent Catholics in a conspiracy to kill King James I and

blow up both Houses of Parliament, Laura K. Donohue, The

Original Fourth Amendment, 83 U. Chi. L. Rev. 1181,

1210–11 (2016), “obliged parliament to counteract so

dangerous a spirit by laws of a great, and then perhaps

necessary, severity,” 5 Tucker’s Blackstone, supra, at 57.

50 USA V. DUARTE

Thus, Blackstone explained, these laws “are rather . . .

accounted for . . . from their history, and the urgency of the

times which produced them, than to be approved . . . as a

standing system of law.” Id.

In any event, the “why” behind these laws does not

justify disarming non-violent felons as a class. In theory,

Catholics “acknowledge[ed] a foreign power, superior to the

sovereignty of the kingdom.” Id. at 55. Catholics “c[ould

not] complain if the laws of th[e] kingdom will not treat them

upon the footing of good subjects,” Blackstone wrote, when

their “separation” from the Church of England was “founded

[not] only upon [a] difference of [religious] opinion” but a

“subversion of the civil government.” Id. at 54–55. Taking

away their guns thus followed “the same rationale” for

stripping suspected loyalists of their arms during the

American Revolution. Marshall, supra, at 724. The only

difference was the “religious overlay.” Id. While one’s

“disaffection” to American independence went together with

supporting the British, “being Roman Catholic was equated

with supporting [the deposed Catholic king] James II,” was

“presumptive [with] treason,” and made one “effectively a

resident enemy alien liable to violence against the

[protestant] king” George II. Id.

Nor can we say that the burdens these laws imposed on

the Second Amendment right were as heavy as

§ 922(g)(1)’s no-exception, lifetime ban. In England,

“[e]ven Catholics, who [technically] fell beyond protection

of the right to have arms, . . . were at least allowed to keep

‘such necessary Weapons as shall be allowed . . . by Order

of the Justices of the Peace . . . for the Defence of his House

or Person.’” Bruen, 597 U.S. at 45 n.12 (quoting 1 Wm. &

Mary c. 15, § 4, in 3 Eng. Stat. at Large 399 (1688)).

Maryland’s and Virginia’s laws included the same self-

USA V. DUARTE 51

defense exception. 1756 Act of Va., 7 Statutes at Large, at

35 (Hening ed. 1820); 1756 Act of Md., 52 Proceedings and

Acts of the General Assembly, 1755-1756 448 (Raphael

Semmes ed. 1946) (similar). That Virginia, for example,

thought it was “dangerous at th[e] time to permit Papists to

be armed,” yet still allowed for a professed Catholic to

possess arms for self-defense, suggests that even a suspected

traitor to the English crown still retained his fundamental

right to protect himself with a firearm. 1756 Act of Va., 7

Statutes at Large, supra, at 35.

c. Laws disarming Indians.

Like Catholics and Loyalists, Indians, while not traitors,

“had always been considered [members of a] distinct,

independent political communit[y],” with whom the

colonies were frequently at war. Worcester v. State of Ga.,

31 U.S. 515, 519 (1832). Indians, simply put, “w[ere]

[not] . . . citizen[s] of the British colonies” and were not

“entitled to the [same] rights of English subjects,” so they

could be disarmed as a matter of course. Jiminez-Shilon, 34

F.4th at 1047 (quoting Joyce Lee Malcom, To Keep and Bear

Arms: The Origins of an Anglo-American Right 140 (1994)).

And to the extent they were, it was generally during times of

conflict.

In a similar vein, to sell Indians arms during

wartime was to provide material aid to the enemy, a capital

See, e.g., An Order for All Indyans on Long Island to Bee Disarmed,

in This Juncture of Ware, & That None Ramble from Place to Place, 14

Documents Relating to the Colonial History of the State of New York 712

(1883); Ordinance of the Director and Council of New Netherland, Laws

and Ordinances of New Netherland (1638–1674) 234 (O’Callaghan ed.

1868) (ordering “a[ll] Indians” to forfeit their arms after “hav[ing] been

inform[ed] that . . . Indians of the Tappaen . . . intended to kill one or

more Christians” and “to prevent such dangers of isolated murders and

assassinations”).

52 USA V. DUARTE

crime in many cases. See, e.g., 1675 Act of Va., 2 Statutes at

Large 326–27, 336 (Hening ed. 1823). Thus, colonial

assemblies justified barring the sale of arms to Indians not

because they were “deemed untrustworthy based on lack of

adherence to the rule of law,” but because they were foreign

combatants with whom the colonists were engaged in an

ongoing and violent military conflict.

For example, one 1675 Virginia law, after condemning

“the sundry mur[d]ers, rapines and many depredations lately

committed and done by Indians on the inhabitants of this

country,” resolved that “a war[] be declared . . . against all

such Indians,” and warned that “any person . . . within this

colony . . . presum[ing] to trade . . . with any Indian any

powder, shot[] or arm[s] . . . shall suffer death without

benefit[] of clergy.” 2 Statutes at Large, supra, at 326–27,

336. New York and Massachusetts similarly denounced “the

dangerous practice of selling [g]uns . . . [to] the Indians” as

causing “the destruction of the Christians” and as “very

poisonous and destructive to the English.” Ordinance of

1645, Laws and Ordinances of New Netherland, 1638–1674

47 (O’Callaghan ed. 1868); Act of 1676, 11 Records Of The

Colony Of New Plymouth In New England 242–43 (Pulsifer

ed. 1861). Anyone “daring to trade” any arms or “munitions

of War” with them was to be executed. Id. “[T]he eastern

Indians have broke[n] and violated all treaties and friendship

made with them,” one 1721 New Hampshire law remarked.

1721 Act, Acts and Laws of His Majesty’s Province of New

Hampshire 164 (1771). “[T]herefore [be] it enacted . . .

[t]hat whoever shall . . . supply them with any . . . guns,

powder shot[], [or] bullets . . . [shall] pay the sum of five

hundred pounds, and suffer twelve months imprisonment.”

Id. Thus, even those colonies punishing the sale of arms to

USA V. DUARTE 53

Indians less harshly still justified these measures as designed

to prevent the arming of a foreign enemy.

The nature of the burden imposed by these laws was also

different in kind from how § 922(g)(1) operates. Most

colonial enactments targeting Indians regulated a different

type of conduct. See Bruen, 597 U.S. at 47. Rather than ban

Indians from possessing firearms, the laws prohibited the

sale of arms to them by colonial residents. E.g., 1675 Act of

Va., 2 Statutes at Large, supra, at 326–27, 336. They also

referred to licensing requirements and implied that those

with proper credentials could still trade arms with Indians.

Pennsylvania’s 1676 sale-of-arms ban, for instance,

prohibited persons from “sell[ing] giv[ing] or barter[ing] . . .

any gun . . . to any Indian” “without license first . . . [being]

obtained under the Governor’s hand and Seal.” Act of 1676,

Charter to William Penn, and Laws of the Province of

Pennsylvania 32 (Staughton et al., 1879) (emphasis added);

see also Act of 1763, Pa. Laws 319, § 1 (prohibiting sale of

“guns . . . or other warlike stores without license”) (emphasis

added). Georgia similarly outlawed selling arms to Indians

in 1784 but only at any “place . . . [other] than at stores or

houses licensed for that purpose.” Act of Feb. 1784, Digest

of Laws of the State of Georgia 288–89 (Watkins ed. 1800)

(emphasis added); see also Act of 1645, Laws and

Ordinances of New Netherland, 1638–1674 47

(O’Callaghan ed. 1868) (prohibiting the sale of “munitions

of War” to Indians “without express permission”).

d. Laws disarming Slaves and free Blacks.

The by-now-familiar reasons for disarming Loyalists,

Catholics, and Indians also motivated laws disarming Slaves

and free Blacks as a class. Slaves, by definition, fell outside

“the people” entitled to Second Amendment protection. E.g.,

54 USA V. DUARTE

Citizen, Samuel Johnson, A Dictionary of the English

Language 297 (6th ed. 1785) (“A freeman of a city; not a

foreigner; not a slave”). And “free blacks, like that of Tories

and Roman Catholics, . . . were considered . . . non-citizens

or, at best, second class citizens.” Marshall, supra, at 726. At

the time, they enjoyed any right to arms solely as a matter of

legislative grace. See e.g., State v. Newsom, 27 N.C. 250, 254

(1844) (concluding that “free people of color cannot be

considered as citizens in the largest sense of the term” and

the state therefore has “the power to say . . . who, of this class

of persons, shall have a right to a licence [to keep arms], or

whether they shall”). “[T]he external danger of Indian

attack[s],” moreover, “was consistently matched” by the

“equivalent fear” (especially in the South) of “indentured

servants and slaves as a class,” Michael A. Bellesiles, Gun

Laws in Early America: The Regulation of Firearms

Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 581

(1998)—hence why states like Virginia, Georgia, South

Carolina, and North Carolina commonly justified disarming

Blacks based on the threat of violence they posed as a

collective group.

See also Heller, 554 U.S. at 611–12

See, e.g., 1752 Act of Va., 2 Statutes at Large, supra, at 481–82

(“Whereas the frequent meeting of considerable numbers of . . .

slaves . . . is judged of dangerous consequence . . . it shall not be lawful[]

for any . . . slave to carry or arm[] himself[] with any club, staff[], gun[]

. . . or any other weapon.”); 1770 Act of Ga., A Codification of the Statute

Law of Georgia 813 (Hotchkiss ed. 1848) (“[A]s it is absolutely

necessary to the safety of this province[] . . . to restrain the wandering

and meeting of . . . slaves . . . it shall be lawful for any person . . . to

apprehend any . . . slave . . . found out of the plantation . . . [and] if he . . .

be armed . . . to disarm [him].”); 1740 Act of S.C., Statutes at Large of

South Carolina 410 (McCord ed. 1840) (same); see also 1790 Act of

N.C., A Manual of the Laws of North-Carolina 172 (Haywood ed. 1814)

(“When any number of . . . slaves . . . shall collect together in arms . . .

committing thefts and alarming the inhabitants of any county . . . it shall

USA V. DUARTE 55

(citing Waters v. State, 1 Gill 302, 309 (Md. 1843) for the

proposition that “free blacks were treated as a ‘dangerous

population,’” prompting “laws . . . to prevent their migration

into th[e] State; to make it unlawful for them to bear arms;

[and] to guard even their religious assemblages with peculiar

watchfulness’”).

And as with every other historical analogue the

Government relies on, laws disarming Blacks still allowed

for certain case-specific exceptions. Virtually every law that

we found contained exemptions for slaves who were armed

but had in their possession a “ticket or license . . . from his

or her master.” 1768 Act of Ga., A Compilation of the

General and Public Statutes of the State of Georgia 594

(Cobb ed. 1859). This was basically a certificate authorizing

them to possess firearms for some limited purpose––usually

to hunt and kill game.

To be clear, the notion that Blacks

as a class were equally entitled to the right to possess arms

for self-defense arguably did not enter the public conscience

until Reconstruction. See Bruen, 597 U.S. at 60 (surveying

the “outpouring of discussion . . . [during Reconstruction

regarding] whether and how to secure constitutional rights

for newly free slaves”). But what these and other exemptions

be the duty of commanding [militia] officer . . . to suppress[] such

depredations or insurrections.”); 12 Colonial Records of the State of

Georgia 451–52 (Candler ed. 1907) (complaining of “a Number of

Slaves appear[ing] in Arms . . . [and] commit[ting] great Outrages and

plunder in and about the Town” and petitioning that “all Slaves . . . be

immediately disarmed”).

1768 Act, A Compilation of the General and Public Statutes of the

State of Georgia 594 (Cobb ed. 1859); 1741 Act, A Manual of the Laws

of North-Carolina 157 (Haywood ed. 1814); 1748 Act of Va., 6 Statutes

at Large 169 (Hening ed. 1819); 1722 Act, 7 Statutes at Large of South

Carolina 373 (McCord ed. 1840).

56 USA V. DUARTE

demonstrate is that categorical bans on certain groups

possessing arms gave way when the justifications for

disarming them no longer existed. The slave “carrying his

master’s arms to or from his . . . plantation” did not pose the

same threat under the law as the slave who carried a gun after

sundown. See, e.g., 1768 Act of Ga., A Compilation of the

General and Public Statutes of the State of Georgia 594

(Cobb ed. 1859). The Massachusetts merchant in 1668

presumably could not sell arms to every Indian but he could

sell to “Indians not in hostility with . . . any of the English.”

1668 Act, Colonial Laws of Massachusetts 240–41 (1672)

(emphasis added). The “Papist” in 1756 Virginia kept his

arms if he swore allegiance to the protestant King George

III, 1756 Act, 7 Statutes at Large, supra, at 35–36, because

this proved his Catholic faith “was founded only upon [the]

difference of [religious] opinion,” not “the subversion of

civil government,” 5 Tucker’s Blackstone, supra, at 54–55.

And the British Loyalist in 1777 Connecticut was disarmed

only “until such time as he could prove his friendliness to

the liberal cause.” Act of Dec. 1775, The Public Records of

the Colony of Connecticut 193 (Hoadly ed. 1890).

§ 922(g)(1) has no analogous exceptions for the class it

targets and thus “bears little resemblance” to the class-based

firearm prohibitions “in effect at [or near] the time the

Second Amendment was ratified.” Cf. United States v.

Booker, 644 F.3d 12, 24 (1st Cir. 2011). “[O]riginally

intended to keep firearms out of the hands of violent”

offenders, Greenlee, supra, at 274 (emphasis added),

§ 922(g)(1) is now far broader and far less case-specific than

“its earlie[r] incarnation [codified] as the Federal Firearms

Act of 1938,” Booker, 644 F.3d at 24. Its predecessor

“initially covered those convicted of a limited set of violent

crimes such as murder, rape, kidnapping, and burglary.” Id.

USA V. DUARTE 57

In its present form, the law now “encompasses those who

have committed any nonviolent felony or qualifying state-

law misdemeanor”—an “immense and diverse category.”

Kanter, 919 F.3d at 466 (Barrett, J., dissenting); id.

(“[Section 922(g)(1)] includes everything from . . . mail

fraud, to selling pigs without a license in Massachusetts,

redeeming large quantities of out-of-state bottle deposits in

Michigan, and countless other state and federal offenses.”)

In sum, the burdens and justifications (Bruen’s “how”

and “why”) for laws disarming disfavored groups at the

Founding are not “distinctly similar” to § 922(g)(1) to justify

its blanket ban on non-violent felons possessing firearms.

Bruen, 597 U.S. at 30 (“[C]ourts should not uphold every

modern law that remotely resembles a historical analogue

because doing so risk[s] endorsing outliers that our ancestors

would never have accepted.”). We turn now to the

Government’s final body of historical evidence.

According to the Government, the Founding generation

“would have understood” that the 18th-century felon had no

right to possess a firearm because, historically, he faced

death and total estate forfeiture for his crimes. Citing

colonial and Founding era laws declaring miscellaneous

offenses as either capital crimes or ones that resulted in civil

forfeiture, the Government argues that these were the default

penalties for committing a felony at that time. Since felons

at the Founding were punished this harshly, the Government

contends, it is consistent with our nation’s history to disarm

permanently the modern-day felon because that is far less

severe a penalty. We reject this line of reasoning.

First, the history of punishing felonies at the Founding is

far more nuanced than the Government lets on; the notion

58 USA V. DUARTE

that all felons (violent and non-violent alike) were

historically put to death or stripped of their estates is “shaky”

to begin with. Kanter, 919 F.3d at 459 (Barrett J.,

dissenting). Founder James Wilson, for example, 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.” James Wilson’s Lectures on Law

Part 3, Chap. I (1791). In England, “few felonies, indeed,

were punished with death.” Id. And on this side of the

Atlantic, a “felony” in late 18th-century America was

likewise “a term of loose signification.” THE FEDERALIST

NO. 42 (James Madison). What counted as one, and how it

was punished, was “not precisely the same in any two of the

States; and varie[d] in each with every revision of its

criminal laws.” Id. As a result, there were “many felonies”

on the books in the late 18th- and early 19th-century, “not

one punished with forfeiture of estate, and but a very few

with death.”

6 Nathan Dane, Digest of American Law 715

(1823).

See, e.g., Act of Conn., Acts and Laws of the State of Connecticut 182–

83 (1796) (listing various “felonies” but punishing only some capitally

(e.g., bestiality, arson, bearing false witness) and others with a term of

imprisonment (e.g., forgery, horse stealing, robbery)); General Laws of

Pennsylvania, from the Year 1700 to April 22, 1846 155 (1847)

(abolishing capital punishment for all crimes except first-degree

murder); An Act to Prevent the Stealing and Taking away of Boats and

Canoes, 1 The Laws of the Province of South Carolina 49 (1776)

(punishing boat theft with “corporal punishment” and a fine “if the

Matter of Fact be a Felony”); 1793 Act Respecting the Punishment of

Criminals, 2 The Laws of Maryland chap. LVII, § XIII (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

USA V. DUARTE 59

Second, today’s felon, in many respects, resembles

nothing of his Founding-era counterpart, despite bearing the

same label. Even as the newly formed states filled the pages

of their penal codes with new felonies each passing year,

“[t]he felony category” at the Founding still remained “a

good deal narrower [then] than now.” Lange v. California,

141 S. Ct. 2011, 2023 (2021). The upshot is that “[m]any

crimes classified as misdemeanors, or nonexistent, at

common law are . . . felonies” today. Tennessee v. Garner,

471 U.S. 1, 14 (1985). Indeed, at least one of Duarte’s prior

felonies—vandalism—almost certainly would have been a

misdemeanor. United States v. Collins, 854 F.3d 1324, 1333

(11th Cir. 2017) (explaining “the closest common-law

offense for damaging another’s property” was “malicious

mischief,” which was punishable by a fine); see, e.g., Act of

1772, An Abridgment of the Laws of Pennsylvania 357

(Purdon ed. 1811) (“[A]ny person or persons [who] shall

maliciously and voluntarily break . . . any brass or other

knocker affixed to such door . . . [shall] pay the sum of

twenty-five pounds.”).

So not all felonies now were felonies then, and many

felonies then were punishable by a term of years—not

execution, civil forfeiture, or life in prison. Nevertheless, it

may well be that “the 18th- and 19th-century” laws

traditionally punishing certain felonies with death, estate

forfeiture, or a life sentence are the closest things to

Punishable with Death or Imprisonment in the State Prison, 1 The Laws

of the State of New York 254 (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 (3d ed.

1783) (describing punishments for various felonies as ranging from

death and estate forfeiture to imprisonment and hard labor).

60 USA V. DUARTE

“longstanding” felon firearm bans that Heller had in mind.

See Bruen, 597 U.S. at 1; see also Phillips, 827 F.3d at 1174

n.1 (citing Chovan, 735 F.3d at 1144 (Bea, J., concurring)).

We might then venture to “assume it settled that these”

offenses were of a kind the Founding generation thought

serious enough to warrant the permanent loss of the

offender’s Second Amendment right. Bruen, 597 U.S. at 30

(emphasis added); see also id. (“[A]ssum[ing] it settled” that

the “relatively few 18th- and 19th-century ‘sensitive

places’” (schools, polling places, courthouses, etc.) were

“the[] locations . . . where arms carrying could be prohibited

consistent with the Second Amendment.”). And it would

lastly stand to reason that we “c[ould] use . . . th[ese]

historical regulations” as “analogies,” id. at 31, to “largely

modern crimes” that may not “closely” resemble their

historical counterparts but still share with them enough

“relevant[] similar[ities]” to justify permanent disarmament

for committing such new-age offenses, see Alaniz, 69 F.4th

at 1129–30 (emphasis added) (“Like burglary or robbery,

[modern-day] drug trafficking plainly poses substantial risks

of confrontation that can lead to immediate violence.”).

That would all seem to be in step with Bruen. Yet the

Government would have us go much further. We are asked

to hold that “Congress[] . . . [can] define any . . . crime as a

felony and thereby use it as the basis for a § 922(g)(1)

conviction.” Phillips, 827 F.3d at 1176 n.5 (emphasis

added).

This, in our view, “expand[s]” the historical felony

category “far too broadly.” Bruen, 597 U.S. at 31. “Put

simply, there is no historical basis” for Congress “to

effectively declare” that committing “a[ny] crime punishable

by imprisonment for a term exceeding one year,”

§ 922(g)(1), will result in permanent loss of one’s Second

USA V. DUARTE 61

Amendment right “simply because” that is how we define a

felony today, Bruen, 597 U.S. at 31 (“New York [cannot] . .

. declare the island of Manhattan a ‘sensitive place’ simply

because it is crowded and protected generally by the New

York City Police Department.”); see also Folajtar, 980 F.3d

at 912 (Bibas, J., dissenting) (“The majority’s extreme

deference gives legislatures unreviewable power to

manipulate the Second Amendment by choosing a label.”).

To accept the Government’s position would “in effect

exempt” from Second Amendment protection entire

categories of people whose crimes were misdemeanors or

did not exist at the Founding. See Bruen, 597 U.S. at 30. As

one commentator put it, “someone who shoplifts three times

in seven years [in West Virginia] . . . twice operates a

recording device in a movie theater [in Utah] . . . [or]

release[s] a dozen heart-shaped balloons [as] a romantic

gesture [in Florida]” will earn a lifetime ban on possessing a

firearm under § 922(g)(1) because it is apparently a felony

to do any of those things in those respective states. Greenlee,

supra, at 269 (citations omitted). That, in our view, is a

bridge too far.

A more faithful application of 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 forfeiture of the offender’s estate.

See Bruen, 597 U.S. at 27. Our pre-Bruen decision in

Phillips largely endorsed this approach. After “assuming the

propriety of felon firearm bans,” as Vongxay required, we

still canvassed the history to determine whether “Phillips’s

predicate conviction for misprision of felony c[ould]

constitutionally serve as the basis for a felon ban” under

§ 922(g)(1). Phillips, 827 F.3d at 1175. “[T]here [w]as little

62 USA V. DUARTE

question” that it could, we explained, because the Founding

generation had labelled Phillips’s crime a “felony” ever since

the First Congress passed the Crime Act of 1790. See id. at

1175–76 (citing 1 Stat. 113, Sec. 6). True, we did not ask

whether misprison of felony was a capital or life-sentence

offense back then. But this was only because Bruen had not

yet clarified that “how” a historical analogue burdens a

Second Amendment right is a “central consideration[]” that

courts must weigh when reviewing the history. Bruen, 597

U.S. at 29 (citations omitted). With that minor tweak, our

approach today conforms with both Phillips and Bruen.

Here, Duarte’s underlying vandalism conviction, we

have explained, likely would have made him a

misdemeanant at the Founding. See infra at 59. Duarte’s

second predicate offense—felon in possession of a firearm,

Cal. Pen. Code § 29800(a)(1)—was a nonexistent crime in

this country until the passage of the Federal Firearms Act of

1938. See Range, 69 F.4th at 104. As for Duarte’s remaining

convictions—drug possession and evading a peace officer—

we do not know whether either crime traces back to an

analogous, Founding-era predecessor because the

Government failed to proffer that evidence.

Based on this

record, we cannot say that Duarte’s predicate offenses were,

by Founding era standards, of a nature serious enough to

Criminalizing drug possession, in particular, did not appear to gain

significant momentum until the early 20th century, with the passage of

such laws as the Food and Drug Act of 1906 and the Harrison Narcotics

Tax Act of 1914. See Margarita Mercado Echegaray, Note, Drug

Prohibition in America: Federal Drug Policy and its Consequences 75

Rev. Jur. U.P.R. 1215, 1219 (2006); cf. Alaniz, 69 F.4th at 1129–30

(citing id.). Before then, what we now think of as “illicit drugs,” such as

opium and cocaine, “were . . . legal in the United States” for a long

stretch of this country’s history. Echegaray, supra, at 1218.

USA V. DUARTE 63

justify permanently depriving him of his fundamental

Second Amendment rights. The Government therefore failed

to demonstrate that applying § 922(g)(1)’s lifetime firearm

ban to Duarte fits within any “longstanding” tradition of

“prohibit[ing] . . . the possession of firearms by felons.”

Heller, 554 U.S. at 626.

I V.

We do not base our decision on the notion that felons

should not be prohibited from possessing firearms. As a

matter of policy, § 922(g)(1) may make a great deal of sense.

But “[t]he very enumeration of the [Second Amendment]

right” in our Constitution “takes out of [our] hands . . . the

power to decide” for which Americans “th[at] right is really

worth insisting upon.” Heller, 554 U.S. at 634 (emphasis

added).

Duarte is an American citizen, and thus one of “the

people” whom the Second Amendment protects. The Second

Amendment’s plain text and historically understood

meaning therefore presumptively guarantee his individual

right to possess a firearm for self-defense. The Government

failed to rebut that presumption by demonstrating that

permanently depriving Duarte of this fundamental right is

otherwise consistent with our Nation’s history. We therefore

hold that § 922(g)(1) violates Duarte’s Second Amendment

rights and is unconstitutional as applied to him.

REVERSED; CONVICTION VACATED.

64 USA V. DUARTE

M. SMITH, Circuit Judge, dissenting:

Whether felons have a Second Amendment right to bear

arms is settled in our circuit. They do not. United States v.

Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010). Until an

intervening higher authority that is clearly irreconcilable

with Vongxay is handed down, we, as a three-judge panel,

are bound by that decision. See Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003).

The Supreme Court’s decision in New York State Rifle &

Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), did not

overrule Vongxay. Instead, Bruen reiterates that the Second

Amendment right belongs only to law-abiding citizens.

Duarte’s Second Amendment challenge to 18 U.S.C.

§ 922(g)(1), as applied to nonviolent offenders, is therefore

foreclosed. Accordingly, I respectfully dissent.

* * *

In Vongxay, we held that § 922(g)(1) does not violate the

Second Amendment as applied to persons with nonviolent

felony convictions. See 594 F.3d at 1118. There, the

defendant (Vongxay) had three previous, nonviolent felony

convictions: two for car burglary and one for drug

possession. Id. at 1114. He was charged and convicted

under § 922(g)(1) after a police officer found a firearm on

his person outside a nightclub. Id. at 1113–14. Vongxay

challenged his conviction on Second Amendment grounds,

arguing that § 922(g)(1) “unconstitutionally limits firearm

possession by categories of people who have not been

deemed dangerous.” Id. at 1116 (internal quotation marks

omitted). We affirmed his conviction, holding that nothing

in District of Columbia v. Heller, 554 U.S. 570 (2008), “can

be read legitimately to cast doubt on the constitutionality of

§ 922(g)(1)” and that felons are “categorically different from

USA V. DUARTE 65

the individuals who have a fundamental right to bear arms.”

Vongxay, 594 F.3d at 1114–15. Duarte does not dispute that

Vongxay is on point.

In our circuit, a decision of a prior three-judge panel is

controlling until a superseding ruling comes from the

Supreme Court or a panel of our court sitting en banc. See

Miller, 335 F.3d at 893, 899–900. “[T]he issues decided by

the higher court need not be identical in order to be

controlling. Rather, the relevant court of last resort must

have undercut the theory or reasoning underlying the prior

circuit precedent in such a way that the cases are clearly

irreconcilable.” Id. at 900. When the two authorities are

“clearly irreconcilable,” we consider ourselves “bound by

the intervening higher authority and reject the prior opinion

of this court as having been effectively overruled.” Id. The

“clearly irreconcilable” requirement is “a high standard.”

Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979

(9th Cir. 2013) (internal quotation marks omitted). “It is not

enough for there to be ‘some tension’ between the

intervening higher authority and prior circuit precedent, or

for the intervening higher authority to ‘cast doubt’ on the

prior circuit precedent.” Lair v. Bullock, 697 F.3d 1200,

1207 (9th Cir. 2012) (quoting United States v. Orm Hieng,

679 F.3d 1131, 1140–41 (9th Cir. 2012), and United States

v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per

curiam)). “In order for us to ignore existing Ninth Circuit

precedent . . . the reasoning and principles of [the later

authority] would need to be so fundamentally inconsistent

with our prior cases that our prior cases cannot stand.” In re

Gilman, 887 F.3d 956, 962 (9th Cir. 2018). But if we “can

apply our prior circuit precedent without running afoul of the

intervening authority, we must do so.” Lair, 697 F.3d at

1207 (internal quotations marks omitted).

66 USA V. DUARTE

Nothing in the Supreme Court’s decision in Bruen

reflects a retreat from the Court’s earlier statement in Heller

that “longstanding prohibitions on the possession of firearms

by felons and the mentally ill” are “presumptively lawful.”

Heller, 554 U.S. at 626, 627 n.26; see also McDonald v.

Chicago, 561 U.S. 742, 786 (2010) (plurality) (noting that

the Court “made it clear in Heller that [its] holding did not

cast doubt on such longstanding regulatory measures as

‘prohibitions on the possession of firearms by felons and the

mentally ill’” and that the Court “repeat[s] those assurances

here” (citation omitted)). To the contrary, Bruen’s analysis

implicitly acknowledged Heller’s exclusion of felons from

“the people” protected by the Second Amendment. See 597

U.S. at 31–32 (“It is undisputed that petitioners Koch and

Nash—two ordinary, law-abiding, adult citizens—are part

of ‘the people’ whom the Second Amendment protects.”

(emphasis added) (citing Heller, 554 U.S. at 580)); see also,

e.g., Heller, 554 U.S. at 635 (“law-abiding, responsible

citizens”). Indeed, Bruen repeatedly limited its definition of

the scope of the right to “law-abiding” citizens, using that

phrase no fewer than fourteen times throughout the opinion.

See 597 U.S. at 9, 15, 26, 29–31, 33 n.8, 38 & n.9, 60, 70–

71.

Two of the Justices whose concurrences were essential

to the judgment cabined the scope of Bruen on this very

point. Justice Kavanaugh, joined by Chief Justice Roberts,

wrote separately to “underscore two important points about

The majority does “not think that the Supreme Court, without any

textual or historical analysis of the Second Amendment, intended to

decide the constitutional fate of so large a population in so few words

and with such little guidance.” But any doubt or ambiguity on this issue

cuts in favor of following circuit precedent. It is Duarte’s burden to show

that Vongxay is “clearly irreconcilable” with Bruen.

USA V. DUARTE 67

the limits of the Court’s decision.” Id. at 79 (Kavanaugh, J.,

joined by Roberts, C.J., concurring). His second point is

germane here: “[A]s Heller and McDonald established and

the Court today again explains, the Second Amendment is

neither a regulatory straightjacket nor a regulatory blank

check. Properly interpreted, the Second Amendment allows

a variety of gun regulations.” Id. (Kavanaugh, J., joined by

Roberts, C.J., concurring) (cleaned up). Justice Kavanaugh

then reiterated Heller’s and McDonald’s statements that a

“prohibition[] on the possession of firearms by felons” is

“presumptively lawful.” See id. at 81 (Kavanaugh, J., joined

by Roberts, C.J., concurring) (citations omitted).

Justice Alito added in a separate concurrence that Bruen

did not “disturb[] anything that [the Court] said in Heller or

McDonald about restrictions that may be imposed on the

possession or carrying of guns.” Id. at 72 (Alito, J.,

concurring) (cleaned up). He made clear: “All that we

decide in this case is that the Second Amendment protects

the right of law-abiding people to carry a gun outside the

home for self-defense.” Id. at 76 (Alito, J., concurring)

(emphasis added).

Thus, Bruen did nothing to upend our decision in

Vongxay. Bruen was a Second Amendment challenge to

New York’s gun licensing regime, not the felon-in-

possession statute at issue in Vongxay; Bruen repeatedly

emphasized that it only extended the Second Amendment

right to “law-abiding citizens,” a phrase it used, as noted, no

fewer than fourteen times; and three Justices in the Bruen

majority reiterated, unequivocally, that a prohibition on the

68 USA V. DUARTE

possession of firearms by felons is presumptively lawful.

The two decisions are harmonious.

Moreover, Vongxay’s mode of analysis is not clearly

inconsistent with that in Heller. Vongxay is a post-Heller

decision that considered, inter alia, the historical scope of

the Second Amendment.

See Bruen, 597 U.S. at 22

The majority claims that the Supreme Court did not even suggest in

Heller or Bruen that felons are not among “the people” within the

meaning of the Second Amendment, quoting our recent decision in

United States v. Perez-Garcia, 96 F.4th 1166, 1175 (9th Cir. 2024). But

Perez-Garcia itself notes that “when the Supreme Court specifically

analyzed limitations on the scope of the Second Amendment’s

protections, Heller described the Second Amendment right as belonging

to ‘law-abiding, responsible citizens,’” that “Bruen, in turn, used the

term ‘law-abiding, responsible citizens’ and its variants more than a

dozen times when describing the Second Amendment’s scope,” and that

the Bruen “concurrences reiterated the same point.” Perez-Garcia, 96

F.4th at 1179 (cleaned up).

We noted the following:

Finally, we observe that most scholars of the Second

Amendment agree that the right to bear arms was

“inextricably . . . tied to” the concept of a “virtuous

citizen[ry]” that would protect society through

“defensive use of arms against criminals, oppressive

officials, and foreign enemies alike,’ and that ‘the right

to bear arms does not preclude laws disarming the

unvirtuous citizens (i.e. criminals) . . . .” Don B.

Kates, Jr., The Second Amendment: A Dialogue, 49

Law & Contemp. Probs. 143, 146 (1986); see also

Glenn Harlan Reynolds, A Critical Guide to the

Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995)

(noting that felons “were excluded from the right to

arms” because they were “deemed incapable of

virtue”). We recognize, however, that the historical

question has not been definitively resolved. See C.

USA V. DUARTE 69

(“Heller relied on text and history.”); Vongxay, 594 F.3d at

1118. We did not reference, let alone employ, the “means-

end” scrutiny that Bruen rejected. See Bruen, 597 U.S. at

19; Vongxay, 594 F.3d at 1114–18. That we cited United

States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004), and

United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001),

does not suggest otherwise. See Vongxay, 594 F.3d at 1116–

17. Rather, we cited these Fifth Circuit cases merely as

examples from our “examination of cases from other circuits

and of historical gun restrictions [that] lends credence to the

post-Heller viability of” United States v. Younger, 398 F.3d

1179, 1192 (9th Cir. 2005), in which we held that

§ 922(g)(1) is constitutional. Vongxay, 594 F.3d at 1116.

We did not adopt their mode of analysis.

For the reasons noted, Duarte fails to meet the “high

standard” of Miller. See Rodriguez, 728 F.3d at 979.

Vongxay is neither “clearly irreconcilable” nor “so

fundamentally inconsistent” with Bruen that we must reject

our precedent. See Miller, 335 F.3d at 900; In re Gilman,

887 F.3d at 962. To conclude otherwise is to read Bruen

more broadly than, at a minimum, Chief Justice Roberts,

Justice Alito, and Justice Kavanaugh intended. The Bruen

majority did not fashion an entirely new Second Amendment

test, instead stressing that it was applying the same “test that

[the Court] set forth in Heller.” 597 U.S. at 26. Bruen

rejected only “means-end scrutiny,” which, again, is a mode

Kevin Marshall, Why Can’t Martha Stewart Have a

Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 714–28 (2009)

(maintaining that bans on felon gun possession are

neither long-standing nor supported by common law

in the founding era).

Vongxay, 594 F.3d at 1118.

70 USA V. DUARTE

of analysis Vongxay did not employ. See id. at 24, 26. We

are thus bound by our holding in Vongxay: § 922(g)(1) does

not violate the Second Amendment as it applies to

nonviolent felons. See 594 F.3d at 1118. Duarte’s challenge

is foreclosed, and no further inquiry is necessary.

The majority errs by discarding Vongxay and conducting

the Second Amendment analysis of § 922(g)(1) anew. First,

the majority contends that Vongxay is “clearly

irreconcilable” with Bruen because of “Vongxay’s wholesale

omission of Bruen’s two-step methodology.” That is, we are

no longer bound by Vongxay because “Vongxay did not

follow the textually and historically focused ‘mode of

analysis’ that Bruen established and required courts now to

apply to all Second Amendment challenges.”

The majority appears to suggest that Vongxay’s failure

to apply the two-step framework set forth in Bruen is alone

sufficient to render the decision null. But that view is not

supported by Miller or its progeny. The Miller analysis

focuses on the “theory” and “reasoning” underlying the

decisions; the analysis turns on function, not form. See

Miller, 335 F.3d at 900. Yet, the majority states: “Because

Bruen had not yet clarified these particular analytical steps

until after Vongxay was decided, Vongxay, predictably,

failed to apply them” (cleaned up), citing our decision in

United States v. Slade, 873 F.3d 712, 715 (9th Cir. 2017).

Slade does not stand for such formalism. In Slade, we held

that our decision in United States v. Jennen, 596 F.3d 594

(9th Cir. 2010), was clearly irreconcilable with later

Supreme Court precedent because Jennen based its analysis

on an implicit assumption that the Supreme Court thereafter

expressly denounced. See Slade, 873 F.3d at 715. It was not

the mere failure to consider “the analytical process [later]

prescribed by [the Supreme Court]” that made the two

USA V. DUARTE 71

decisions clearly irreconcilable but rather Jennen’s incorrect

legal assumption. See id. The circumstances here are

different. We did not merely assume in Vongxay that a felon

was excluded from “the people” whom the Second

Amendment protects, nor did the Supreme Court expressly

reject that view in Bruen (in fact, again, it implicitly

endorsed the view). Slade is therefore inapposite, as are the

other authorities cited by the majority on this issue. See, e.g.,

United States v. Baldon, 956 F.3d 1115, 1121 (9th Cir. 2020)

(prior precedent rested on analytical distinction between

“substantial” and “minimal” force rebuffed by intervening

authority); Swift v. California, 384 F.3d 1184, 1190 (9th Cir.

2004) (prior precedent applied “relates to” test that Supreme

Court later expressly overruled). Under Miller, the creation

of a new test does not per se invalidate prior precedent.

Second, the majority contends that “Vongxay’s reliance

on Younger is . . . ‘clearly irreconcilable’ with Bruen—

separate and apart from Vongxay’s failure to apply Bruen’s

methodology.” But Vongxay did not improperly rely on

cases holding that the Second Amendment protected a

collective rather than individual right. Vongxay was decided

after Heller and recognized that Heller “invalidated” this

court’s pre-Heller caselaw holding that the Second

Amendment did not protect an individual right. 594 F.3d at

1116. We cited Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.

2002), only to explain its pre-Heller precedent and cited

Younger, 398 F.3d at 1192, for its holding: “that § 922(g)(1)

does not violate the Second Amendment rights of a

convicted felon.” Vongxay, 594 F.3d at 1116. That holding

was correct—even if, as Vongxay acknowledged, the

reasoning was wrong. We then explained why Heller did

not disturb that holding. Id. at 1116–18.

72 USA V. DUARTE

Indeed, in a case decided six years after Vongxay, we

expressly rejected the argument that Vongxay somehow

invalidated itself by citing pre-Heller precedent:

Phillips argues that Vongxay is not good law.

He contends that it conflicted with circuit

precedent when it relied, in part, on United

States v. Younger, 398 F.3d 1179 (9th Cir.

2005), a pre-Heller case that held that there is

no individual right to bear arms under the

Second Amendment. See Vongxay, 594 F.3d

at 1116. But Vongxay acknowledged

Heller’s holding—that there is an individual

right under the Second Amendment—

notwithstanding the panel’s assertion that it

was “still bound by Younger.” Id. . . .

If the panel had truly considered itself bound

by Younger in all respects, it would not have

analyzed the Second Amendment question at

all, since there would have been no claim to

an individual right. If Phillips believes that

Vongxay is inconsistent with Heller, his

remedy in this court is to seek rehearing en

banc.

United States v. Phillips, 827 F.3d 1171, 1174 n.1 (9th Cir.

2016). Since the majority’s theory here is identical to the

argument rejected in Phillips (except referencing Bruen,

rather than Heller), it is foreclosed.

The “clearly irreconcilable” requirement of Miller is a

“high standard.” Rodriguez, 728 F.3d at 979. As long as we

“can apply our prior circuit precedent without running afoul

of the intervening authority, we must do so.” Lair, 697 F.3d

USA V. DUARTE 73

at 1207. For the reasons noted, we can easily do so here.

Nevertheless, the majority engages in a de novo Second

Amendment analysis of § 922(g)(1). Had Bruen, for

example, redefined the meaning of “the people” under the

Second Amendment, such a review may indeed be

necessary. But Bruen did not do so. The scope of “the

people” is the same now under Bruen, as it was under

Vongxay, as it was under Heller. Felons are excluded from

the right to keep and bear arms.

* * *

The majority reads Bruen, a Supreme Court decision

reviewing New York’s gun licensing regime, as an invitation

to uproot a longstanding prohibition on the possession of

firearms by felons. Bruen extends no such invitation. As

Justice Alito cautioned, Bruen decides “nothing about who

may lawfully possess a firearm.” Bruen, 597 U.S. at 72

(emphasis added).

One day—likely sooner, rather than later—the Supreme

Court will address the constitutionality of § 922(g)(1) or

otherwise provide clearer guidance on whether felons are

protected by the Second Amendment. But it is not our role

as circuit judges to anticipate how the Supreme Court will

decide future cases. See United States v. Osife, 398 F.3d

1143, 1148 (9th Cir. 2005) (“As the Supreme Court has

explained, when there is clearly controlling precedent,

circuit courts are not to anticipate the direction in which the

Court’s jurisprudence is moving.”), abrogated on other

grounds by Arizona v. Gant, 556 U.S. 332 (2009); Tekoh v.

Cnty. of Los Angeles, 997 F.3d 1260, 1263 (9th Cir. 2021)

(Miller, J., concurring in the denial of rehearing en banc)

(“[M]aking such predictions is the role of academics and

journalists, not circuit judges. Our duty is to follow what the

74 USA V. DUARTE

Supreme Court has done, not forecast what it might do.”).

Until we receive contrary definitive guidance from the

Supreme Court, or from a panel of our court sitting en banc,

we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court

will rehear this case en banc to correct the majority’s

misapplication of Bruen.