Reeves Order Guns

Case 3:18-cr-00165-CWR-FKB Document 79 Filed 06/28/23 Page 1 of 77

____________________
No. 3:18‐CR‐165‐CWR‐FKB
UNITED STATES OF AMERICA,
Plaintiff,
v.
JESSIE BULLOCK,
Defendant.
____________________
ORDER DISMISSING CASE
____________________
Before CARLTON W. REEVES, District Judge.
Gun‐rights advocates used to say that the Second Amend‐
ment was treated as a “second‐class” right. Robert J. Cottrol,
Structure, Participation, Citizenship, and Right: Lessons from
Akhil Amar’s Second and Fourteenth Amendments, 87 Geo. L.J.
2307, 2324 (1999). That all changed in 2008. That year, the Su‐
preme Court decided that the Second Amendment guaran‐
tees individuals the right to keep and bear arms in their home
for self‐defense. District of Columbia v. Heller, 554 U.S. 570
(2008).
In so doing, the Court forged a broad definition of the right to
bear arms. And in the years since, the Court has continued to
expand that definition. See McDonald v. City of Chicago, Illinois,
561 U.S. 742 (2010). Firearm restrictions are now presump‐
tively unlawful unless the government can “demonstrate that
the regulation is consistent with this Nation’s historical tradi‐
tion of firearm regulation.” New York State Rifle & Pistol Ass’n,
Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022).
In this case, the federal government seeks to imprison Jessie
Bullock for possessing a firearm as a convicted felon. See 18
U.S.C. § 922(g)(1). Mr. Bullock claims that this is a violation of
his Second Amendment rights. He observes that he finished
serving his sentence long ago, and the available evidence in‐
dicates that the firearm the government complains of was
kept in the sanctity of his home. Yet Section 922(g)(1)’s ban on
gun possession is a lifetime one.
The question presented appears simple: has the government
demonstrated that, as to Mr. Bullock, the federal felon‐in‐pos‐
session ban is consistent with America’s “historical tradition
of firearm regulation”?
The government says the answer is also simple: “yes.” It
points to more than 120 U.S. District Court decisions which
recently determined that the government had met its bur‐
den—at least in those cases.
This Court is not so sure. The government’s citation to the
mere volume of cases is not enough. See Heller, 554 U.S. at 624
n.24 (rejecting decisions of “hundreds of judges”). There also
is doubt about the process those cases used to determine the
history of the felon‐in‐possession ban. In none of those cases
did the government submit an expert report from a historian
2
justifying felon disarmament. In none of those cases did the
court possess an amicus brief from a historian. And in none
of those cases did the court itself appoint an independent ex‐
pert to help sift through the historical record.
It is unsurprising that the government relies on jurisprudence
filled with such methodological flaws. The same errors define
the Supreme Court’s own Second Amendment jurisprudence.
In Heller, Justice Scalia’s opinion for the Court conducted a de
novo review of history using the parties’ briefs and amicus
briefs from academics. That was surprising in light of Justice
Scalia’s long‐held belief that “[s]ign‐on, multiple‐professor
amicus briefs in a case . . . are . . . a political rather than an
academic exercise” motivated by ”partisanship” and “hopes
for preferment.” Memorandum from Associate Justice Anto‐
nin Scalia to Associate Justice John Paul Stevens, No. 95‐1853,
Clinton v. Jones, at 2 (April 4, 1997). It was further surprising
given Justice Scalia’s disapproval of the Court “picking and
choosing those [studies] that support its position” while
“never explain[ing] why those particular studies are method‐
ologically sound.” Roper v. Simmons, 543 U.S. 551, 617 (2005)
(Scalia, J., dissenting).
Justice Scalia knew firsthand the risk of cherry‐picking briefs
to support one’s ideological priors. See id. Yet it appears that
the Court continues to engage in “law office history”—that is,
history selected to “fit the needs of people looking for ammu‐
nition in their causes”—in Constitutional interpretation. Gor‐
don S. Wood, The Supreme Court and the Uses of History, 39
Ohio N.U. L. Rev. 435, 446 (2013).
3
Nevertheless, the standard announced by the Supreme Court
in Bruen is the law of the land. It must be enforced. Under that
standard, the government has failed to meet its burden.
The federal felon‐in‐possession ban was enacted in 1938, not
1791 or 1868—the years the Second and Fourteenth Amend‐
ments were ratified. The government’s brief in this case does
not identify a “well‐established and representative historical
analogue” from either era supporting the categorical disarma‐
ment of tens of millions of Americans who seek to keep fire‐
arms in their home for self‐defense. Bruen, 142 S. Ct. at 2132;
see Gabriel J. Chin, The New Civil Death: Rethinking Punishment
in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791
(2012) (explaining that “tens of millions” of free‐world Amer‐
icans have criminal records).
American history might support state‐level felon disarma‐
ment laws; that at least would align with principles of feder‐
alism. It might support disarmament of persons adjudicated
to be dangerous—as Justice Barrett found when she sat on the
Seventh Circuit. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir.
2019) (Barrett, J., dissenting). And it likely does support dis‐
armament of persons convicted of death‐eligible offenses. The
power to take someone’s life necessarily includes the lesser
power to disarm them.
The government’s arguments for permanently disarming Mr.
Bullock, however, rest upon the mirage of dicta, buttressed by
a cloud of law review articles that do not support disarming
him.1 In Bruen, the State of New York presented 700 years of

1 Chief Justice Roberts views law review articles with a jaundiced eye.
They are not “particularly helpful for practitioners and judges,” he says.
Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty‐First‐
4
history to try and defend its early 1900s‐era gun licensing law.
That was not enough. Bruen requires no less skepticism here,
where the challenged law is even younger.
For the reasons that follow, therefore, Mr. Bullock’s motion to
dismiss will be granted.
I. Factual and Procedural History
A. Mr. Bullock
In 1992, thirty‐one year old Jessie Bullock got into a deadly
“bar fight” in Jackson, Mississippi. Docket No. 38 at 44 (quot‐
ing U.S. Magistrate Judge F. Keith Ball). He was convicted of
aggravated assault and manslaughter. Docket No. 20 at 8. As
a result of those felonies, Mr. Bullock served “about 15, 16
years” in state prison and lost several civil rights. Docket No.
38 at 33 (quoting Ella Bullock).2
Mr. Bullock also permanently lost his right to possess firearms
and ammunition. At the time, the Second Amendment pro‐
vided him no safe harbor, no protection. See United States v.
Darrington, 351 F.3d 632, 633‐34 (5th Cir. 2003). If Mr. Bullock
was ever found with firearms or ammunition, he could be
charged with a new crime and, if convicted, sent back to
prison. See 18 U.S.C. § 922(g)(1).

Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399,
399 (2012). While this Court does not subscribe to that view, other justices
have also been critical of modern law review scholarship. Id. at 399 n.1.
2 In 2015, Mr. Bullock was convicted of fleeing law enforcement and at‐
tempted aggravated assault of a law enforcement officer. Docket No. 20 at
4. He was sentenced to five years’ incarceration, with all of that time sus‐
pended.
5
That is the case before this Court. The government alleges that
Mr. Bullock violated § 922(g)(1) by knowingly possessing a
firearm on May 3, 2018, when he was about 57 years old.
The grand jury returned its first indictment in August 2018. It
charged Mr. Bullock with knowingly possessing a firearm,
demanded forfeiture of his firearms and ammunition, and
sought a mandatory minimum of 15 years’ incarceration.
The government did not arrest Mr. Bullock at that time. It is
not clear that Mr. Bullock even knew about the pending
charge. Fourteen months passed with no activity.
In October 2019, the grand jury returned a superseding indict‐
ment. This charging document amended the sentencing re‐
quest to no more than 10 years in federal prison.3 More time
passed.
Mr. Bullock was finally arraigned in March 2020, around the
start of the pandemic. The Magistrate Judge held a detention
hearing the next month. After listening to the testimony,
Judge Ball thought it “downright silly” to claim that Mr. Bull‐
ock “poses a danger to his wife, contrary to her own sworn
testimony, contrary to the time that he’s been out on bond
from this very incident, and no one feeling that he poses such
a danger that they needed to go pick him up as early as Au‐
gust of 2018 when he was first indicted.” Docket No. 38 at 45‐
46. Judge Ball released Mr. Bullock on an unsecured bond. Mr.
Bullock has remained on bond ever since, without incident.

3 Each indictment alleged that Mr. Bullock also goes by “Booman.” Testi‐
mony at the detention hearing revealed that Booman Bullock is Mr. Bull‐
ock’s son. Docket No. 38 at 29.
6
A series of pandemic‐related continuances followed. The con‐
tinuances were unopposed, as the U.S. Attorney’s Office and
the Federal Public Defender agreed that trials should proceed
first for those defendants detained in jail.
With the pandemic receding in 2022, this matter was almost
ready to be tried before a jury of Mr. Bullock’s peers. In Au‐
gust of that year, however, he filed the present motion to dis‐
miss. The Court turns to that now.
B. The Present Motion
Mr. Bullock argues that the Supreme Court’s decision in New
York State Rifle & Pistol Association v. Bruen renders the federal
felon‐in‐possession law unconstitutional as applied to him.
Bruen was about the State of New York’s handgun rules.
While 43 states issued licenses to publicly carry handguns
based on “objective criteria,” New York and a handful of
other states also required citizens to show a “special need” for
the handgun. 142 S. Ct. at 2122. When two citizens could not
meet that standard, they and a gun‐rights organization sued,
calling it an unconstitutional infringement of the Second
Amendment guarantee.
The U.S. Court of Appeals for the Second Circuit upheld New
York’s “special need” requirement, finding it “‘substantially
related to the achievement of an important governmental in‐
terest.’” Id. at 2125 (citation omitted).
In Bruen, however, the Supreme Court rejected that approach.
An individual’s Second Amendment rights should not be
weighed against the government’s interests in public safety,
it said. The Court instead announced a new standard. It is re‐
produced here:
7
[W]hen the Second Amendment’s plain text co‐
vers an individual’s conduct, the Constitution
presumptively protects that conduct. To justify
its regulation, the government may not simply
posit that the regulation promotes an important
interest. Rather, the government must demon‐
strate that the regulation is consistent with this
Nation’s historical tradition of firearm regula‐
tion. Only if a firearm regulation is consistent
with this Nation’s historical tradition may a
court conclude that the individual’s conduct
falls outside the Second Amendment’s “unqual‐
ified command.”
Id. at 2126 (citation omitted). This ruling abrogated Fifth Cir‐
cuit precedent. See id. at 2127 n.4 (citing Nat’l Rifle Ass’n of Am.,
Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700
F.3d 185, 194‐95 (5th Cir. 2012)).
Pursuant to Bruen, Mr. Bullock’s motion contends that the
statute prohibiting him from ever again possessing firearms
or ammunition, § 922(g)(1), is unconstitutional. “The prosecu‐
tion cannot meet its burden of establishing that Section
922(g)(1), as applied to Mr. Bullock, is ‘consistent with the Na‐
tion’s historical tradition of firearm regulation,’” he argues.
Docket No. 61 at 4. “’Founding‐era legislatures did not strip
felons of the right to bear arms simply because of their status
as felons.’” Id. at 5 (quoting Kanter, 919 F.3d at 451 (Barrett, J.,
dissenting)).
The government disagrees. Its three‐and‐a‐half‐page brief
limits Bruen to its facts, arguing that the decision “says noth‐
ing about the statute at issue in this case.” Docket No. 63 at 3.
The government then summarily asserts that § 922(g)(1) “is
8
part of the historical tradition of regulating firearms posses‐
sion.” Id.
C. Appointing An Expert Historian
After reviewing the briefs and Bruen, this Court grew con‐
cerned. Judges are not historians. We were not trained as his‐
torians. We practiced law, not history. And we do not have
historians on staff. Yet the standard articulated in Bruen ex‐
pects us “to play historian in the name of constitutional adju‐
dication.” Docket No. 65 at 3, available at United States v. Bull‐
ock, No. 3:18‐CR‐165, 2022 WL 16649175 (S.D. Miss. Oct. 27,
2022).
In this case, no historian has expressed an opinion regarding
the history of felon disarmament. Neither the government nor
Mr. Bullock submitted an expert report on the historical ana‐
logues to modern felon‐in‐possession laws, if any. No inter‐
ested organization or member of the academy filed an amicus
brief. All we have are appellate judges’ interpretations of the
historical record. And (some of) those interpretations are
credibly accused by actual historians as being a “cherry‐
picked” “ideological fantasy.” Id. at 5 (collecting critiques).4

4 This problem has been with us for decades. See Antonin Scalia, Original‐
ism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 856‐57, 861 (1989) (“[I]t is often
exceedingly difficult to plumb the original understanding of an ancient
text. Properly done, the task requires the consideration of an enormous
mass of material—in the case of the Constitution and its Amendments, for
example, to mention only one element, the records of the ratifying debates
in all the states. Even beyond that, it requires an evaluation of the reliabil‐
ity of that material—many of the reports of the ratifying debates, for ex‐
ample, are thought to be quite unreliable. And further still, it requires im‐
mersing oneself in the political and intellectual atmosphere of the time—
somehow placing out of mind knowledge that we have which an earlier
9
This Court then discovered that “an overwhelming majority
of historians” reject the Supreme Court’s most fundamental
Second Amendment holding—its 2008 conclusion that the
Amendment protects an individual right to bear arms, rather
than a collective, Militia‐based right. Id. at 4 (quoting Patrick
J. Charles, The “Reasonable Regulation” Right to Arms: the Gun‐
Rights Second Amendment before the Standard Model, in A Right
to Bear Arms? The Contested Role of History in Contempo‐
rary Debates on the Second Amendment 168 (Tucker, et al.,
eds., 2019)). “A common theme . . . is historians’ frequent com‐
plaint that lawyers just can’t seem to get it right.” Id. at 5

age did not, and putting on beliefs, attitudes, philosophies, prejudices and
loyalties that are not those of our day. It is, in short, a task sometimes
better suited to the historian than the lawyer. . . . Do you have any doubt
that this system does not present the ideal environment for entirely accu‐
rate historical inquiry? Nor, speaking for myself at least, does it employ
the ideal personnel.”) (emphasis added).
As Stephen R. Munzer and James W. Nickel explained even earlier, “prac‐
titioners of the historical approach may, consciously or subconsciously, be
moved to use slanted or fabricate history to justify results they favor on
other grounds.” Stephen R. Munzer and James W. Nickel, Does the Consti‐
tution Mean What It Always Meant?, 77 Colum. L. Rev. 1029, 1033 (1977)
(citation omitted).
Furthermore, it should be noted that there is a special
danger in allowing a controversial case to turn on an his‐
torical claim if the claim is not beyond dispute. Since good
historical research is not within the competence of most
judges, the antecedent probability of mistakes is high.
This increases the chances that professional historians
will challenge and refute the Court’s reading of history,
thus undermining the basis, or ostensible basis, for the de‐
cision.
Id. (citation omitted).
10
(quoting Jonathan D. Martin, Historians at the Gate: Accommo‐
dating Expert Historical Testimony in Federal Courts, 78 N.Y.U.
L. Rev. 1518, 1525 (2003)).5
After this review, this Court did not want to be guilty of itself
cherry‐picking the history. It asked the parties whether it
should appoint a professional historian to serve as an inde‐
pendent expert in this matter. Id. at 6.
The parties answered “no.” Mr. Bullock observed that the
burden to prove history and tradition is on the government,
not the defendant or the Court. Docket No. 70 at 1. “Under
Bruen, the government’s ipse dixit fails to carry the govern‐
ment’s burden as a matter of law.” Id. at 2. The government,
meanwhile, claimed that “the prohibition against felons pos‐
sessing firearms is so thoroughly established as to not require
detailed exploration of the historical record.” Docket No. 71
at 1. The Court took the matter under advisement.
Months later, the government filed several unsolicited briefs.
One pointed to more than 120 federal court decisions from
across the country that had recently considered and rejected
arguments like Mr. Bullock’s. The briefs implicitly urged this
Court to fall in line. Upon follow‐up questioning, however,
the government conceded that none of these courts had ap‐
pointed an expert to help them sift through the historical rec‐
ord, and historians had not filed an amicus brief in any of
these cases.

5 Gordon Wood, one of the most prominent historians of our era, acknowl‐
edges that we “cannot[] base our constitutional jurisprudence on the his‐
torical reality of the Founding.” Wood, 39 Ohio N.U. L. Rev. at 448.
11
The Court has now reviewed dozens of the cases proffered by
the government. It will describe their analytical approaches
later in this opinion.
II. Legal Standard
Federal Rule of Criminal Procedure 12 allows parties to “raise
by pretrial motion any defense, objection, or request that the
court can determine without a trial on the merits.” Fed. R.
Crim. P. 12(b)(1).
Mr. Bullock brings an “as‐applied” challenge to § 922(g)(1).
“The distinction between as‐applied and facial challenges is
sometimes hazy,” United States v. Perez, 43 F.4th 437, 443 (5th
Cir. 2022) (citation omitted), but “[a]s‐applied challenges are
the basic building blocks of constitutional adjudication,”
Richard H. Fallon, Jr., As‐Applied and Facial Challenges and
Third‐Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).
In an as‐applied challenge, the court asks whether a law with
some permissible uses “is nonetheless unconstitutional as ap‐
plied to appellant’s activity,” Spence v. Washington, 418 U.S.
405, 414 (1974) (reversing Mr. Spence’s criminal conviction);
see Street v. New York, 394 U.S. 576, 594 (1969) (reversing Mr.
Street’s criminal conviction).
In contrast, in a facial challenge, the court asks whether a law
“could never be applied in a valid manner.” Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 798 (1984). “A facial challenge to a legislative Act is, of
course, the most difficult challenge to mount successfully,
since the challenger must establish that no set of circum‐
stances exists under which the Act would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987). “Facial challenges to
the constitutionality of statutes should be granted sparingly
12
and only as a last resort.” Serafine v. Branaman, 810 F.3d 354,
365 (5th Cir. 2016) (cleaned up).
“[F]or reasons relating both to the proper functioning of
courts and to their efficiency, the lawfulness of the particular
application of the law should ordinarily be decided first.” Bd.
of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 485
(1989). “Once a case is brought,” however, “no general cate‐
gorical line bars a court from making broader pronounce‐
ments of invalidity in properly ‘as‐applied’ cases.” Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010) (quot‐
ing Fallon, 113 Harv. L. Rev. at 1339).
III. Discussion
The Second Amendment states, in its entirety: “A well‐regu‐
lated Militia, being necessary to the security of a free State, the
right of the people to keep and bear arms, shall not be in‐
fringed.” U.S. Const. amend. II.
A. The Second Amendment Revolution
Contemporary Second Amendment law revolves around
three Supreme Court decisions: Heller, McDonald, and Bruen.
They were issued in 2008, 2010, and 2022, respectively. Each
will be summarized below.
Along the way, this Court will explain how the Second
Amendment was interpreted before Heller, and examine a rel‐
evant dissent written by Justice Amy Coney Barrett during
her service on the U.S. Court of Appeals for the Seventh Cir‐
cuit.
The discussion proceeds in chronological order.

13
1. The Standard Before 2008
For 70 years, the Second Amendment was interpreted in ac‐
cordance with United States v. Miller, 307 U.S. 174 (1939). In
that case, the Supreme Court determined that “Jack Miller
and Frank Layton, two washed‐up Oklahoma bank robbers,”
did not have a constitutional right to carry an unregistered,
homemade sawed‐off shotgun. Brian L. Frye, The Peculiar
Story of United States v. Miller, 3 NYU J.L. & Liberty 48, 48, 79
(2008).
Miller focused on the history and meaning of the word “Mili‐
tia.” “The Constitution as originally adopted granted to the
Congress power ‘To provide for calling forth the Militia to ex‐
ecute the Laws of the Union’,” the Court said. 307 U.S. at 178
(quoting U.S. Const. art. 1, § 8). “With obvious purpose to as‐
sure the continuation and render possible the effectiveness of
such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied
with that end in view.” Id.
In other words, to quote Justice McReynolds’ statement from
the bench, “[w]e construe the amendment as having relation
to military service and we are unable to say that a sawed‐off
shotgun has any relation to the militia.” Frye, 3 NYU J.L. &
Liberty at 67 (citation omitted).
Courts “struggle[d] to decipher [Miller’s] holding.” Id. at 49.
“Some find Miller adopted an individual right theory of the
Second Amendment, some find it adopted a collective right
theory, and some find it adopted a hybrid theory, protecting
the right to possess a firearm in connection with militia ser‐
vice.” Id. at 49 & n.4 (collecting cases). Second Amendment
14
scholars, meanwhile, “[a]ll conclude Miller is an impenetrable
mess.” Id. at 49.
Miller was nevertheless quite resilient. Fifty years on, its Mili‐
tia‐based rationale was described as perhaps “the most firmly
established proposition in American constitutional law.”
Keith A. Ehrman and Dennis A. Henigan, The Second Amend‐
ment in the Twentieth Century: Have You Seen Your Militia
Lately?, 15 U. Dayton L. Rev. 5, 40 (1989). Chief Justice Warren
E. Burger endorsed the Militia‐based rationale in a 1991 op‐
ed. See Warren E. Burger, 2nd Amendment Has Been Distorted,
Assoc. Press (Dec. 11, 1991). In a television interview that
same year, he called efforts to broaden the scope of the Second
Amendment “one of the greatest pieces of fraud—I repeat the
word fraud—on the American public by special interest
groups that I have ever seen in my lifetime.” MacNeil/Lehrer
NewsHour, Special Interest Push Behind 2nd Amendment a
‘Fraud,’ Former Chief Justice Said in 1991, PBS NewsHour, avail‐
able at https://www.youtube.com/watch?v=hKfQpGk7KKw.
The U.S. Department of Justice agreed with the Militia‐based
rationale, urging courts to conclude “that the Second Amend‐
ment does not apply to individual citizens.” United States v.
Emerson, 270 F.3d 203, 219 (5th Cir. 2001).6
All of that was to change in short order.

6 Emerson turned out to be a landmark Second Amendment decision. Its
historical analysis paved the way for the re‐examination and adoption of
an individual right to bear arms in Heller. It was not without its critics,
though. See Parker v. District of Columbia, 311 F. Supp. 2d 103, 106‐07
(D.D.C. 2004) (calling Emerson a “troubling” violation of the Fifth Circuit’s
rule of orderliness), rev’d, District of Columbia v. Heller, 554 U.S. 570 (2008).
15
2. District of Columbia v. Heller
In 2003, Shelly Parker, Dick Heller, and a handful of other Dis‐
trict of Columbia residents sued the D.C. government over its
gun restrictions. See Parker v. District of Columbia, No. 1:03‐CV‐
213‐EGS, Docket No. 1 (D.D.C. Feb. 10, 2003). They sought
permission to possess firearms in their homes for self‐defense.
Id. at 3.
The plaintiffs argued that Miller had been mischaracterized.
Docket No. 3 at 14 (ECF pagination). A true reading of the
decision—and history—they maintained, showed that the
Second Amendment protected their right to possess common
firearms in the home for self‐defense, regardless of militia ser‐
vice. Id. at 33‐39.
The plaintiffs also noted that in late 2001, the U.S. Department
of Justice had executed an about‐face in its Second Amend‐
ment jurisprudence. Id. at 29 & n.9. As DOJ later explained to
the Supreme Court, a November 2001 memorandum from At‐
torney General John Ashcroft reflected the Department’s new
belief. “The Second Amendment,” he wrote,
more broadly protects the rights of individuals,
including persons who are not members of any
militia or engaged in active military service or
training, to possess and bear their own firearms,
subject to reasonable restrictions designed to
prevent possession by unfit persons or to re‐
strict the possession of types of firearms that are
particularly suited to criminal misuse.
Brief for Respondent in Opposition to Certiorari at 19 n.3, Em‐
erson v. United States, 536 U.S. 907 (2002) (No. 01‐8780). No
explanation was provided for the change.
16
The District Court rejected the plaintiffs’ arguments,

“thought‐provoking and historically interesting” though they
were. Parker v. District of Columbia, 311 F. Supp. 2d 103, 109
(D.D.C. 2004). More persuasive were “sixty‐five years of un‐
changed Supreme Court precedent and the deluge of circuit
case law rejecting an individual right to bear arms not in con‐
junction with service in the Militia.” Id. at 109‐10.
On appeal, the Supreme Court disagreed. Its analysis began
with the plain text of the Second Amendment.
The Court first determined that the phrase “well regulated
Militia” was part of the “prefatory clause” that did not limit
the words that followed. Heller, 554 U.S. at 577‐78. It then
found that the term “right of the people” creates “a strong
presumption that the Second Amendment right is exercised
individually and belongs to all Americans.” Id. at 581. Lastly,
the Court held that “keep and bear arms” means the ability
“to possess and carry weapons in case of confrontation.” Id.
at 592. “Putting all of these textual elements together, we find
that they guarantee the individual right to possess and carry
weapons in case of confrontation.” Id.
The Court sought confirmation of this conclusion in the his‐
torical record. It found it. Its review of English history re‐
vealed that the Declaration of Rights protected Protestants
who wanted to keep their firearms. Id. at 593. Blackstone, “the
preeminent authority on English law for the founding gener‐
ation,” agreed that the right to bear arms was fundamental.
Id. at 593‐94 (citation omitted). And excerpts from colonial
newspapers showed how New Yorkers and Bostonians in
1769 “understood the right to enable individuals to defend
themselves.” Id. at 594. “No prior Supreme Court decision has
ever gone to such great depth or length to mine the historical
17
sources in its search for meaning.” Rory K. Little, Heller and
Constitutional Interpretation: Originalismʹs Last Gasp, 60 Has‐
tings L.J. 1415, 1418 (2009).
The Militia‐based reasoning adopted in Miller was no obsta‐
cle. The case merited no deference simply because “hundreds
of judges . . . have relied on the view of the Amendment we
endorsed there.” Heller, 554 U.S. at 621 (cleaned up). Nor was
it appropriate to consider whether the Court’s new Second
Amendment standard would lead to “a dramatic upheaval in
the law.” Id. The Constitution controlled, regardless of the
consequences.7
The Heller Court did pause for a moment to consider a com‐
mon question: does the Second Amendment protect only
“those arms in existence in the 18th century,” such as mus‐
kets, or does it also protect one’s right to bear modern weap‐
ons? Id. at 582. The Court’s response was firm: “We do not
interpret constitutional rights that way.” Id. “Just as the First
Amendment protects modern forms of communications, and
the Fourth Amendment applies to modern forms of search,
the Second Amendment extends, prima facie, to all instru‐
ments that constitute bearable arms, even those that were not
in existence at the time of the founding.” Id. (citations omit‐
ted). As support, it pointed to a 1997 case applying the First
Amendment to the Internet—a technology unknown to the
Framers—and a 2001 case applying the Fourth Amendment
to law enforcement’s use of an infrared radiation detector. In

7 “Justice Douglas, for example, famously asserted that ‘it is the Constitu‐
tion which [a Justice] swore to support and defend, not the gloss which
his predecessors may have put on it.’” Amy Coney Barrett, Originalism and
Stare Decisis, 92 Notre Dame L. Rev. 1921, 1925 (2017) (citation omitted).
18
its own way, the Court was endorsing the oft‐stated principle
that “[t]he framers of the Constitution wisely spoke in general
language and left to succeeding generations the task of apply‐
ing that language to the unceasingly changing environment
in which they would live.” William H. Rehnquist, The Notion
of A Living Constitution, 54 Tex. L. Rev. 693, 694 (1976); see also
N.L.R.B. v. Noel Canning, 573 U.S. 513, 533‐34 (2014) (“The
Founders knew they were writing a document designed to
apply to ever‐changing circumstances over centuries. After
all, a Constitution is ‘intended to endure for ages to come,’
and must adapt itself to a future that can only be ‘seen dimly,’
if at all.”).
Finally, the Court offered a few caveats and assurances. “Like
most rights, the right secured by the Second Amendment is
not unlimited.” Heller, 554 U.S. at 626.
Although we do not undertake an exhaustive
historical analysis today of the full scope of the
Second Amendment, nothing in our opinion
should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such
as schools and government buildings, or laws
imposing conditions and qualifications on the
commercial sale of arms.
Id. at 626‐27. “[T]here will be time enough to expound upon
the historical justifications for the exceptions we have men‐
tioned if and when those exceptions come before us,” the
Court assured us. Id. at 635.
19
As a result, Ms. Parker, Mr. Heller, and their fellow plaintiffs
were permitted to register and maintain their handguns in
their homes. Id.
3. McDonald v. City of Chicago, Illinois
Two years later, the Supreme Court issued Heller’s sequel:
McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010).
McDonald solved a simple but important legal problem. Tech‐
nically, the Court’s decision in Heller applied solely against
the federal government. (Recall that the District of Columbia
is a federal territory.) Residents of the 50 states still did not
have full Second Amendment rights. So after Heller, Chicago
resident Otis McDonald, several other Chicagoans, and two
advocacy groups filed suit seeking the same guarantee as D.C.
residents: the right “to keep handguns in their homes for self‐
defense.” Id. at 750 and 752.
Although the plaintiffs lost in the District Court and the Sev‐
enth Circuit, the Supreme Court found in their favor. “[T]he
Second Amendment right is fully applicable to the States”
through the Fourteenth Amendment, it held. Id. at 750. “Un‐
der our precedents, if a Bill of Rights guarantee is fundamen‐
tal from an American perspective, then, unless stare decisis
counsels otherwise, that guarantee is fully binding on the
States.”8 Id. at 784‐85.
As in Heller, the McDonald Court engaged at length with the
history of restricting gun possession. See id. at 771‐79. Because
the critical Amendment this time was the Fourteenth

8 The Court’s commitment to stare decisis has been called into question of
late. See, e.g., David Litt, A Court Without Precedent, The Atlantic (July 24,
2022).
20
Amendment, rather than the Second Amendment, much of

this discussion highlighted the “extensive history of black
people’s inability to access guns during the days of chattel
slavery, Reconstruction, and Jim Crow‐‐an incapacity that left
black people vulnerable to violence from private actors.” Khi‐
ara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv.
L. Rev. 23, 77 (2022).9
Relying on legislative history, the Court recounted how racist
violence and disarmament was particularly acute in Missis‐
sippi. Said one U.S. Senator of that era, “[i]n Mississippi rebel
State forces, men who were in the rebel armies, are traversing
the State, visiting the freedmen, disarming them, perpetrating
murders and outrages upon them; and the same things are
done in other sections of the country.” McDonald, 561 U.S. at
772 (quotation marks and citation omitted).
Justice Thomas’ concurrence also focused on Mississippi. He
reminded readers of “Klan tactics” and thousands of lynch‐
ings across the South, including Emmitt Till’s 1955 murder
near Money, Mississippi, and the 1904 mutilation and lynch‐
ing of a “Negro and Wife” near Vicksburg, Mississippi. Id. at
857 (Thomas, J., concurring). “The use of firearms for self‐

9 As Judge Berger observes, “[i]n 1791, the drafters of the Constitution con‐
sidered the undersigned’s ancestors as legal property. They, along with
free Blacks, were prohibited from possessing firearms. The popular con‐
ception of the Second Amendment at the time it was enacted clearly did
not encompass all people having access to firearms to defend themselves
and fight for freedom from tyranny.” United States v. Nutter, 624 F. Supp.
3d 636, 645 n.10 (S.D.W. Va. 2022); see also Dred Scott v. Sandford, 60 U.S.
393, 417 (1857) (rejecting interpretation of Constitution that would permit
“persons of the negro race . . . to keep and carry arms wherever they
went.”).
21
defense was often the only way black citizens could protect
themselves from mob violence,” he concluded. Id.
The Court majority wrapped up by reiterating some of its ear‐
lier rhetoric:
We made it clear in Heller that our holding did
not cast doubt on such longstanding regulatory
measures as “prohibitions on the possession of
firearms by felons and the mentally ill,” “laws
forbidding the carrying of firearms in sensitive
places such as schools and government build‐
ings, or laws imposing conditions and qualifica‐
tions on the commercial sale of arms.” We re‐
peat those assurances here.
Id. at 786 (citation omitted). But the holding was clear: Mr.
McDonald and his neighbors could keep their handguns at
home.
4. Judge Barrett’s Dissent in Kanter v. Barr
Here, our discussion deviates from Supreme Court cases to
cover a dissent written by then‐Judge Barrett of the U.S. Court
of Appeals for the Seventh Circuit. Its relevance will soon be‐
come obvious.
In 2011, Wisconsin resident Rickey Kanter pleaded guilty to
federal mail fraud, a felony. Kanter v. Barr, 919 F.3d 437, 440
(7th Cir. 2019). He had defrauded Medicare. Id. He paid a
$50,000 criminal penalty, “reimbursed Medicare over $27 mil‐
lion in a related civil settlement,” and served a year in federal
prison. Id.
Mr. Kanter’s conviction, like Mr. Bullock’s, meant he was un‐
able to ever again possess firearms or ammunition. Both the
22
federal government and the State of Wisconsin had felon‐in‐
possession laws that threatened to return Mr. Kanter to prison
if he ever knowingly possessed those things. See 18 U.S.C.
§ 922(g)(1); Wis. Stat. § 941.29(1m).
Mr. Kanter believed that the Second Amendment invalidated
those statutes. He filed suit in federal court seeking a declara‐
tion that they were unconstitutional as applied to him, “a non‐
violent offender with no other criminal record.” Kanter, 919
F.3d at 440.
The District Court disagreed. It found that “even assuming
felons are entitled to Second Amendment protection, the ap‐
plication of the federal and Wisconsin felon dispossession
laws to Kanter is substantially related to the government’s im‐
portant interest in preventing gun violence.” Id.
This was a curious conclusion. Both Heller and McDonald ex‐
pressly instructed lower courts not to engage in this kind of
“interest‐balancing.” See Heller, 554 U.S. at 634; McDonald, 561
U.S. at 791. Both decisions even used the same sentence of rea‐
soning: “The very enumeration of the right takes out of the
hands of government—even the Third Branch of Govern‐
ment—the power to decide on a case‐by‐case basis whether
the right is really worth insisting upon.” Heller, 554 U.S. at 634;
McDonald, 561 U.S. at 791 (citation omitted). So it is not clear
why “the government’s important interest in preventing gun
violence” was relevant. Kanter, 919 F.3d at 440.
The Seventh Circuit nevertheless affirmed. The federal gov‐
ernment had articulated an interest in “preventing gun vio‐
lence by keeping firearms away from persons, such as those
convicted of serious crimes, who might be expected to misuse
them,” and then demonstrated “that prohibiting even
23
nonviolent felons like Kanter from possessing firearms is sub‐
stantially related to its interest in preventing gun violence.”
Id. at 448. That was enough. Mr. Kanter would remain subject
to both the federal and state felon disarmament statutes.
Judge Barrett issued a lengthy dissent. She thought the major‐
ity had proceeded down the wrong path by emphasizing Mr.
Kanter’s felony. The correct vector was whether he was “dan‐
gerous.” Id. at 451 (Barrett, J., dissenting). “In 1791—and for
well more than a century afterward—legislatures disqualified
categories of people from the right to bear arms only when
they judged that doing so was necessary to protect the public
safety,” she reasoned. Id. “Absent evidence that he either be‐
longs to a dangerous category or bears individual markers of
risk, permanently disqualifying Kanter from possessing a gun
violates the Second Amendment.” Id.
Judge Barrett began with Heller. She observed that Heller de‐
fined “the people” protected by the Second Amendment as
“all Americans.” Id. at 453 (citation omitted). “Neither felons
nor the mentally ill are categorically excluded from our na‐
tional community.” Id. As a result, persons like Mr. Kanter
were presumptively protected by the Second Amendment. Id.
The Judge then asked whether Heller foreclosed an in‐depth
examination of felon disarmament laws. It did not. “Like the
majority, I am reluctant to place more weight on these passing
references than the Court itself did. The constitutionality of
felon dispossession was not before the Court in Heller, and be‐
cause it explicitly deferred analysis of this issue, the scope of
its assertion is unclear.” Id. (cleaned up). In short, “Heller’s
dictum does not settle the question before us.” Id. at 454.
24
Next came an exhaustive historical analysis. After examining
several state ratifying conventions, Judge Barrett found no
“founding‐era laws explicitly imposing [] or explicitly author‐
izing the legislature to impose” permanent felon disarma‐
ment laws. Id. at 454. Each ratifying convention lent some sup‐
port to a tangential proposition; New Hampshire’s proposal,
for example, “reflects support for disarming rebels.” Id. at 455.
But that proposal didn’t “say anything about disarming those
who have committed other crimes,” and, to be clear, the pro‐
posal never made it into the final authoritative text. Id. Similar
conclusions followed for the Massachusetts and Pennsylvania
conventions. “The concern common to all three is not about
felons in particular or even criminals in general; it is about
threatened violence and the risk of public injury.” Id. at 456.
Judge Barrett then turned to English common law and colo‐
nial American history. In those periods, persons in power
feared Catholics, Native Americans, and African‐Americans,
and disarmed those groups. Id. at 456‐57. “It should go with‐
out saying that such race‐based exclusions would be uncon‐
stitutional today,” she added.10 Id. at 458 n.7. But those re‐
strictions provided no support for the categorical disarma‐
ment of persons with felony convictions.
Judge Barrett next considered whether felon disarmament
laws are constitutional because founding‐era felonies were
punishable by death. Id. at 458‐59. (Other judges have latched

10 “It cannot be that historical error in the form of impermissible bias, even
if once acceptable among those with political and economic power, could
provide the government a continuing license to unfairly discriminate
against a group of people, whether it be in restricting Second Amendment
rights or any others.” United States v. Guthery, No. 2:22‐CR‐173‐KJM, 2023
WL 2696824, at *8 (E.D. Cal. Mar. 29, 2023).
25
onto this rationale, which we will return to later.) She found
this too simplistic. By the time of ratification, the death pen‐
alty “no longer inevitably followed a felony conviction,”
while “civil death11 applied exclusively to life sentences and
only if authorized by statute—and even then, it was more
modest than the ancient version because the convict retained
some rights.” Id. at 459 and 461.
Continuing, Judge Barrett tackled the so‐called “virtuous cit‐
izenry” theory. This theory provides that gun rights extend
only to the virtuous, and because persons with felony convic‐
tions are not virtuous, they can be disarmed. The Judge found
historical evidence that “felons could be disqualified from ex‐
ercising certain rights—like the rights to vote and serve on ju‐
ries—because these rights belonged only to virtuous

11 The historic practice of “civil death” “extinguished most civil rights of
a person convicted of a crime and largely put that person outside the law’s
protection. Civil death as an [American] institution faded away in the
middle of the twentieth century,” but has arguably “reemerged” via a
panoply of modern “collateral consequences.” Chin, 160 U. Pa. L. Rev. at
1790. In addition to disarmament,
A person convicted of a crime, whether misdemeanor or
felony, may be subject to disenfranchisement (or deporta‐
tion if a noncitizen), criminal registration and community
notification requirements, and the ineligibility to live,
work, or be present in a particular location. Some are not
allowed to live outside of civil confinement at all. In ad‐
dition, the person may be subject to occupational debar‐
ment or ineligibility to establish or maintain family rela‐
tions.
Id. (citations omitted). “The magnitude of the problem is greater than
ever”; “tens of millions” of Americans live in free society but have crimi‐
nal records. Id. at 1791 (citations omitted).
26
citizens.” Id. at 462 (citations omitted). The problem, though,
is that virtue exclusions applied only to “civic rights—indi‐
vidual rights that require citizens to act in a collective manner
for distinctly public purposes.” Id. (cleaned up). And Heller
made clear that the Second Amendment’s right to bear arms
is an individual right, not a civic right. Id. at 463.
Judge Barrett concluded by asking whether some firearms
bans could be justified. In her view, the federal government
and Wisconsin “might still be able to show that Kanter’s his‐
tory or characteristics make him likely to misuse firearms,”
thereby posing a risk to public safety that warranted disarma‐
ment. Id. at 468. But neither government had put forward any
such evidence. Id. Accordingly, “the governments cannot per‐
manently deprive him of his right to keep and bear arms.” Id.
at 469.
5. New York State Rifle & Pistol Association v. Bruen
We arrive at Bruen. The decision was summarized earlier, but
the three major takeaways of the majority opinion are pre‐
sented here. A shorter description of the concurrences and
dissent follows.
First, in its opening paragraph, the Court built upon Heller
and McDonald by formally holding “that the Second and
Fourteenth Amendments protect an individual’s right to
carry a handgun for self‐defense outside the home.” 142 S. Ct.
at 2122 (emphasis added). The opinion later explained that
“[n]othing in the Second Amendment’s text draws a
home/public distinction with respect to the right to keep and
bear arms.” Id. at 2134. “To confine the right to ‘bear’ arms to
the home would nullify half of the Second Amendment’s op‐
erative protections.” Id. at 2134‐35.
27
Second, the Court modified the legal standard governing Sec‐
ond Amendment cases. It rejected the appellate courts’ exist‐
ing “’two‐step’ framework . . . that combines history with
means‐end scrutiny,” id. at 2125, and replaced it with a differ‐
ent two‐step analysis:
When the Second Amendment’s plain text co‐
vers an individual’s conduct, the Constitution
presumptively protects that conduct. The gov‐
ernment must then justify its regulation by
demonstrating that it is consistent with the Na‐
tion’s historical tradition of firearm regulation.
Only then may a court conclude that the indi‐
vidual’s conduct falls outside the Second
Amendmentʹs ‘unqualified command.’
Id. at 2129‐30 (citation omitted).
The Court explained to judges and lawyers how to use “his‐
tory to inform the meaning of constitutional text.” Id. at 2130.
“That ‘legal inquiry is a refined subset’ of a broader ‘historical
inquiry,’ and it relies on ‘various evidentiary principles and
default rules’ to resolve uncertainties.” Id. at 2130 n.6 (quoting
William Baude and Stephen E. Sachs, Originalism and the Law
of the Past, 37 L. & Hist. Rev. 809, 810‐11 (2019)).12 The Court
then added that judges should “follow the principle of party
presentation” and are “entitled to decide a case based on the
historical record compiled by the parties.” Id.

12 The authors of the quoted piece, though, state emphatically at the outset
of their article that “lawyers must often defer to historical expertise on the
relevant questions.” Baude and Sachs, 37 L. & Hist. Rev. at 3 (PDF pagina‐
tion).
28
At times, the historical inquiry would be “fairly straightfor‐
ward.” Id. at 2131. “For instance, when a challenged regula‐
tion addresses a general societal problem that has persisted
since the 18th century, the lack of a distinctly similar historical
regulation addressing that problem is relevant evidence that
the challenged regulation is inconsistent with the Second
Amendment.”13 Id.
At other times, though, it acknowledged that “cases implicat‐
ing unprecedented societal concerns or dramatic technologi‐
cal changes may require a more nuanced approach.” Id. at
2132.
The regulatory challenges posed by firearms to‐
day are not always the same as those that pre‐
occupied the Founders in 1791 or the Recon‐
struction generation in 1868. Fortunately, the
Founders created a Constitution—and a Second
Amendment—“intended to endure for ages to
come, and consequently, to be adapted to the
various crises of human affairs.” Although its
meaning is fixed according to the understand‐
ings of those who ratified it, the Constitution
can, and must, apply to circumstances beyond
those the Founders specifically anticipated.
Id. (citation omitted).
The Court then tried to provide lawyers and judges specific
instructions. “[D]etermining whether a historical regulation is

13 Some scholars doubt that the absence of a similar historical regulation
should weigh against constitutionality. See, e.g., Jacob D. Charles, The Dead
Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke
L.J. ___ (draft of March 20, 2023) (forthcoming).
29
a proper analogue for a distinctly modern firearm regulation
requires a determination of whether the two regulations are
‘relevantly similar,’” it said. Id. While “relevantly similar”
was left undefined, the Court said precedent pointed toward
“at least two metrics: how and why the regulations burden a
law‐abiding citizen’s right to armed self‐defense.” Id. (empha‐
sis added). “[A]nalogical reasoning requires only that the
government identify a well‐established and representative
historical analogue, not a historical twin. So even if a modern‐
day regulation is not a dead ringer for historical precursors, it
still may be analogous enough to pass constitutional muster.”
Id.
Third, the Court applied this new legal standard to New
York’s public‐carry licensing regime.
At step one, it found that “the plain text of the Second Amend‐
ment protects [petitioners’] proposed course of conduct—car‐
rying handguns publicly for self‐defense.” Id. at 2134.
At step two, the Court found that the State of New York had
not met its burden “to show that New York’s proper‐cause
requirement is consistent with this Nation’s historical tradi‐
tion of firearm regulation.” Id. at 2135. Although the govern‐
ment had amassed “a variety of historical sources” spanning
“(1) medieval to early modern England; (2) the American Col‐
onies and the early Republic; (3) antebellum America; (4) Re‐
construction; and (5) the late‐19th and early‐20th centuries,”
these sources all failed to persuade. Id. at 2135‐36. “[A]part
from a handful of late‐19th‐century jurisdictions, the histori‐
cal record compiled by respondents does not demonstrate a
tradition of broadly prohibiting the public carry of commonly
used firearms for self‐defense.” Id. at 2138. New York’s
proper‐cause requirement was unconstitutional.
30
Bruen’s concurrences and dissent merit attention. As we will
see, the concurrences and dissent are the primary reason why
more than 120 constitutional challenges like Mr. Bullock’s
have failed across the country.
Justice Alito’s concurrence emphasized that Bruen protects
only the rights of “law‐abiding residents.” Id. at 2157 (Alito,
J., concurring). “That is all we decide. Our holding decides
nothing about who may lawfully possess a firearm or the re‐
quirements that must be met to buy a gun. . . . Nor have we
disturbed anything that we said in Heller or McDonald . . .
about restrictions that may be imposed on the possession or
carrying of guns.” Id.
Justice Kavanaugh’s concurrence, which was joined by the
Chief Justice, took a similar tack. Quoting Heller and McDon‐
ald, he emphasized that “[n]othing in our opinion should be
taken to cast doubt on longstanding prohibitions on the pos‐
session of firearms by felons.” Id. at 2162 (Kavanaugh, J., con‐
curring).
Justice Breyer’s dissent, joined by Justices Sotomayor and Ka‐
gan, hit the same theme. He observed that in Heller, the Court
declared felon‐in‐possession statutes to be “presumptively
lawful.” Id. at 2189 (Breyer, J., dissenting) (quoting Heller, 554
U.S. at 626‐27 & n.26). He then agreed with Justice Kavanaugh
that Bruen “cast[s] no doubt on that aspect of Heller’s hold‐
ing.” Id. (citation omitted).
U.S. District Judges across the country have latched onto the
concurrences and dissent to conclude that at least five current
Supreme Court Justices presently support felon‐in‐possession
statutes. We turn now to those district court opinions.

31
B. The Post‐Bruen Consensus
This Court has now reviewed dozens of the government’s
proffered post‐Bruen cases. All have found § 922(g)(1) consti‐
tutional.
The most common mode of reasoning goes like this:
 Heller protected only the Second Amendment
rights of “law‐abiding, responsible” citizens.
 Heller said that “nothing in our opinion should
be taken to cast doubt on longstanding prohibi‐
tions on the possession of firearms by felons and
the mentally ill.”
 McDonald said the same thing.
 Bruen didn’t overrule either case.
 Because the defendant is a felon, under Heller,
McDonald, and Bruen, their motion to dismiss
fails.
See, e.g., United States v. Tribble, No. 2:22‐CR‐85‐PPS‐JEM, 2023
WL 2455978, at *2 (N.D. Ind. Mar. 10, 2023). The Tribble court
summarized its reasoning as follows:
As tempting as it is to pore over colonial era gun
laws and muse on whether they are an adequate
proxy to § 922(g)(1), . . . the Supreme Court has
stated that restrictions on felons possessing fire‐
arms are permissible. Nothing in Bruen indi‐
cates the Court intended to change its view on
the matter.
Id. (citations omitted). The Tribble court then cited the concur‐
rences of Justices Alito and Kavanaugh for the proposition
that Bruen changed the legal standard without casting doubt
on felon disarmament. Id. (citations omitted).
32
Some district courts have gone beyond this method to exam‐
ine the constitutionality of § 922(g)(1) under the Bruen stand‐
ard.
Those who reach Bruen step one have reasoned, for example,
that “the activity regulated by the felon in possession statute
falls outside the scope of the Second Amendment’s protec‐
tions because it does not impact ‘law‐abiding, responsible cit‐
izens.’” United States v. Belin, No. 21‐CR‐10040‐RWZ, 2023 WL
2354900, at *2 (D. Mass. Mar. 2, 2023) (quoting Bruen, 142 S.
Ct. at 2122).
The courts that reach Bruen step two, meanwhile, have cred‐
ited the United States’ arguments to conclude that “felon‐in‐
possession prohibitions have sufficient grounding in histori‐
cal tradition to withstand a challenge.” United States v. Smith,
No. 22‐CR‐20351, 2023 WL 2215779, at *3 (E.D. Mich. Feb. 24,
2023). In Smith, as just one example, the court cited the Fifth
Circuit’s discussion in Emerson for the proposition that “colo‐
nial and English societies of the eighteenth century have ex‐
cluded felons from possessing firearms.” Id. (cleaned up). A
subset of these decisions has also reasoned that because the
government could historically disarm persons it deemed
“dangerous”—crediting Justice Barrett’s dissent in Kanter—
that the government could also disarm all persons with felony
convictions. Id. at *4.
C. Concerns With the Post‐Bruen Consensus
With great respect, this Court is not convinced that these anal‐
yses are correct. The concerns are both procedural and sub‐
stantive.

33
1. The Process Concerns
The Department of Justice admits that in none of its proffered
cases did a district court decide the issue with assistance of a
professional historian. That is puzzling because such assis‐
tance could have come in several forms.
a. No Expert Reports
The most disappointing failure is that the party with the bur‐
den to prove history and tradition—the United States—did
not designate a historian to testify on the analogues, if any, to
modern felon‐in‐possession laws.
In footnote six, Bruen explained that judges should “follow
the principle of party presentation” and are “entitled to de‐
cide a case based on the historical record compiled by the par‐
ties.” 142 S. Ct. at 2130 n.6. Judges “are not obliged to sift the
historical materials for evidence to sustain New York’s stat‐
ute,” it reasoned. Id. at 2150. “That is [the government’s] bur‐
den.” Id.
In this case, as in the sampled cases, however, the government
did not designate a single person to provide an expert report
on § 922(g)(1). It is true that a retained expert would have
come at some cost.14 But the Rules also permit parties to des‐
ignate their own employee as an expert witness. See Fed. R.

14 Although compared to the doctors hired in medical malpractice cases,
the engineers hired in product liability cases, the political scientists and
statisticians hired in voting rights litigation, and the economists hired in
cases of all stripes, the historians who sent their CVs to this Court, un‐
prompted, appear to charge affordable rates. And if fundamental consti‐
tutional rights are at stake, isn’t some degree of cost worth it?
34
Civ. P. 26(a)(2)(B). The government elected to do neither of
those things.15
Bruen’s sixth footnote brushed aside questions about the role
of experts. It said “[t]he job of judges . . . is to resolve legal
questions presented in particular cases or controversies.” 142
S. Ct. at 2130 n.6. It then quoted Professors Baude and Sachs
to explain that this “’legal inquiry is a refined subset’ of a
broader ‘historical inquiry,’ and it relies on ‘various eviden‐
tiary principles and default rules’ to resolve uncertainties.” Id.
The quoted article, in turn, observes that judges “hear anti‐
trust cases without producing cutting‐edge microeconomic
research, or decide issues of toxic‐tort causation without ever
donning lab coats.” PDF p.8. Professors Baude and Sachs thus
imply that historical questions pose no greater lift.
With respect, however, the distinguished professors forget
that in antitrust, toxic‐tort, and many more cases, the parties
each submit detailed expert reports supporting their posi‐
tions. In this way Judges draw not upon their own subject‐
matter expertise, but upon a record produced by the parties’

15 In some circumstances, the Department of Justice can and does employ
real historians. In May 2023, as this opinion was being drafted, the Crimi‐
nal Division’s Human Rights and Special Prosecutions Section at Main
Justice was hiring a historian at the GS‐14 level. The successful applicant
will be expected to “[p]erform historical research and investigative activ‐
ities to identify persons in the United States who may have perpetrated
human rights violations in Eastern Europe, including persecution, torture,
genocide, extrajudicial killings, and the use or recruitment of child sol‐
diers.” USAjobs Posting (on file with author). The Department could do
the same for its Second Amendment cases if it wanted to.
35
own presentations.16 And in this case, as in the sampled cases,
the government never offered into the record an expert report
supporting its view of felon disarmament.17
b. No Amicus Briefs
The sampled district court cases, like this case, also lack ami‐
cus briefs discussing past analogues (if any) to modern felon
disarmament laws.
This is understandable at the district court level. With no Rule
requiring their acceptance, cf. Fed. R. App. P. 29, some district
courts discourage amicus briefs. See, e.g., Evanston Ins. Co. v.
Rodriguez Eng’g Lab’ys, No. 1:21‐CV‐1129‐RP, 2023 WL 379277,
at *1 (W.D. Tex. Jan. 20, 2023) (“An amicus who argues facts
should rarely be welcomed. Additionally, acceptance of an . .
. amicus curiae should be allowed only sparingly, unless the
amicus has a special interest, or unless the Court feels that ex‐
isting counsel need assistance.”) (collecting cases).
This reluctance is much less true at the appellate level, where
in addition to the requirements of Rule 29, Circuit Judges
from a wide range of philosophical dispositions have recog‐
nized that “’we might be able to avoid some unnecessary ca‐
tastrophes if we have the will and the patience to listen.’”
Lefebure v. DʹAquilla, 15 F.4th 670, 675 (5th Cir. 2021) (Ho, J., in

16 At the trial‐court level, moreover, a judge is more often expected to de‐
termine whether there are genuine and material disputed issues of fact for
a jury to resolve, rather than asked to itself adjudicate those facts.
17 While this Court was initially tempted to appoint an independent his‐
torian to help complete the historical record—for reasons well‐articulated
by Justice Scalia more than three decades ago, see supra—Bruen instructs
judges to place that burden on the government. It is no wonder, then, that
this Court’s colleagues all declined to hire such an expert.
36
a single‐judge Order) (quoting Judge Higginbotham’s dissent
in Am. Coll. of Obstetricians & Gynecologists, Pennsylvania Sec‐
tion v. Thornburgh, 699 F.2d 644, 647 (3d Cir. 1983)).
Despite the appellate courts’ openness to outside expertise,
however, the amicus briefs do not always materialize. Fifth
Circuit Judge Stephen Higginson recently lamented that de‐
spite the importance of the Second Amendment issue pend‐
ing before his court, he and his colleagues had the benefit of
only one amicus brief. Avalon Zoppo, Judge Frustrated Over
Lack of Historical Analysis in Gun Rights Case, Nat’l L.J. (Feb. 8,
2023). “I’m not blaming you because I’m not a Ph.D. either,”
he told counsel for the United States during oral argument,
“but you each gave us I think four law review articles not
from historians. . . . The Supreme Court in Bruen had 80 amici
from Ph.D. historians.” Id. In such situations, what are Circuit
Judges to do?
Judge Higginson’s grievance might seem strange to lawyers.
Of course historians will want to provide their input into critical
Second Amendment questions, we think. From the historians’
perspective, though, the question might be different. What in‐
centive do trained historians have to participate in what is ul‐
timately an uncompensated labor scheme?
Consider, as a start, Justice Scalia’s stated distrust of “[s]ign‐
on, multiple‐professor amicus briefs,” quoted above. Think
about how the Chief Justice famously derides academics, who
(in his view) spend their time on “the influence of Immanuel
Kant on evidentiary approaches in 18th Century Bulgaria, or
something.”18 Debra Cassens Weiss, Law Prof Responds After

18 Legal academia responded with a flurry of papers. Westlaw returns 126
secondary sources containing the phrase “influence of Immanuel Kant on
37
Chief Justice Roberts Disses Legal Scholarship, ABA Journal (July
7, 2011). And recall that “an overwhelming majority of histo‐
rians” reject the Supreme Court’s central Second Amendment
holding: the individual right to bear arms. Bullock, 2022 WL
16649175, at *2 (citation omitted). If you believe that an out‐
come‐oriented judiciary is disregarding your profession’s col‐
lective wisdom, cherry‐picking the record to legislate from
the bench, why would you want to enable it?19
One hopes that we have not so abused the academic world’s
trust as to discourage it from participating in the judiciary’s
search for truth.20 We need the historical community’s guid‐
ance and expertise. And to accomplish that, we might need to
rearrange the incentive scheme. Not just by paying people
what they are worth, but also by ensuring that historical

evidentiary approaches.” See, e.g., Orin S. Kerr, The Influence of Immanuel
Kant on Evidentiary Approaches in 18th‐Century Bulgaria, 18 Green Bag 2d
251, 251 (2015) (“This Article fills the gap in the literature by exploring
Kant’s influence on evidentiary approaches in 18th‐century Bulgaria. It
concludes that Kant’s influence, in all likelihood, was none.”).
19 Professor Wood acknowledges that that’s exactly what is happening,
asking, “how can you go back to the history except to cherry pick and select
phrases or words that seem to fit your agenda?” Wood, 39 Ohio N.U. L.
Rev. at 443 (emphasis added).
20 This Court may be understating the problem. A recent paper suggests
that the Justices’ use of scholarly literature is “a dangerous development”
and “poses acute problems for students of legal history.” Andrea Scoseria
Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404,
426‐27 (2023). “Scholars cannot put their trust in the Court’s historical
analyses. We need rigorous academic work that stands at some distance
from the Court’s own arguments on which to build our future research.”
Id. at 427.
38
questions are predicated upon a solid foundation of facts, not
abstract legal questions reserved only for judges.
The justice system ordinarily operates like a pyramid. Thou‐
sands of disparate factual records are created in the trial
courts. Thousands of those filter up to the circuit courts for
error‐correction and harmonization of the rule of law. And
customarily, where that harmonization causes differences
among the circuit courts will the Supreme Court weigh in to
decide the contested issues. When it does so, the parties are
given the opportunity to argue their respective positions, and
amici weigh in too. The parties have one last opportunity to
convince the Court at oral argument, and on some occasions
the Court permits others to speak. In this way, many different
facts, situations, and perspectives inform the law up the chain
of abstraction.
In Second Amendment cases, though, the pyramid is turned
on its head. The trial record can be nonexistent. None of the
history is “tested in an adversarial proceeding,” Roper, 543
U.S. at 617 (Scalia, J., dissenting), and there may be no factual
findings that ordinarily would receive some form of defer‐
ence. The appellate courts do the best with the briefs they
have, but all that matters is the Supreme Court’s historical re‐
view, conducted de novo as a legal rather than a factual ques‐
tion, with dozens of amicus briefs never before seen by an‐
other court.21 Is this the best way of doing justice?

21 In that sense, historians are simply making the most efficient decision:
don’t bother to submit anything to the trial or intermediate courts—it
doesn’t matter anyway.
39
2. The Substantive Concerns
This Court is also not persuaded that the sampled district
court cases reached the correct legal conclusions.
a. Relying on Dicta
One common method of denying these motions relies upon
Heller’s repeated statements about “law‐abiding, responsible
citizens” and a concluding paragraph saying that “nothing in
our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons . . . .” 554
U.S. at 626‐27.
Several commentors did not like this paragraph of “judicial
lawmaking.” J. Harvie Wilkinson III, Of Guns, Abortions, and
the Unraveling Rule of Law, 95 Va. L. Rev. 253, 273 (2009); see
Antonin Scalia, A Matter of Interpretation 21 (1997) (criticiz‐
ing “judicial lawmaking”) [hereinafter A Matter of Interpreta‐
tion]. “The Constitution’s text, at least, has as little to say about
restrictions on firearm ownership by felons as it does about
the trimesters of pregnancy,” Judge Wilkinson wrote. 95 Va.
L. Rev. at 273. “The Heller majority seems to want to have its
cake and eat it, too‐‐to recognize a right to bear arms without
having to deal with any of the more unpleasant consequences
of such a right.” Id. Professor Little thought the paragraph
“demonstrates that even the purest originalist cannot resist
the tug to implement, nay, to transport, the ‘original meaning’
into the context and experience of our living age.” 60 Hastings
L.J. at 1420. Professor Larson added, “[t]he Court offered no
citations to support this statement, and its ad hoc, patchy
quality has been readily apparent to commentators, who have
speculated that it was compromise language designed to se‐
cure Justice Kennedy’s vote.” Carlton F.W. Larson, Four
40
Exceptions in Search of A Theory: District of Columbia v. Heller
and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009).
Like Justice Barrett, the Fifth Circuit found this language to
constitute dictum. United States v. Scroggins, 599 F.3d 433, 451
(5th Cir. 2010). Justice Thomas has agreed. Voisine v. United
States, 579 U.S. 686, 715 (2016) (Thomas, J., dissenting). And
quite recently, the en banc Third Circuit agreed, too. Range v.
Att’y Gen. United States of Am., 69 F.4th 96, 101 (3d Cir. 2023)
(en banc).
“A holding consists of those propositions along the chosen
decisional path or paths of reasoning that (1) are actually de‐
cided, (2) are based upon the facts of the case, and (3) lead to
the judgment. If not a holding, a proposition stated in a case
counts as dicta.” Michael Abramowicz and Maxwell Stearns,
Defining Dicta, 57 Stan. L. Rev. 953, 961 (2005).
“The constitutionality of felon dispossession was not before
the Court in Heller, and because it explicitly deferred analysis
of this issue, the scope of its assertion is unclear.” Kanter, 919
F.3d at 453 (Barrett, J., dissenting) (cleaned up). “Heller’s dic‐
tum does not settle the question before us.” Id.
Several district courts suggested that Supreme Court dicta is
binding upon them. E.g., United States v. Finney, No. 2:23‐CR‐
13, 2023 WL 2696203, at *2 n.4 (E.D. Va. Mar. 29, 2023). Not so
in this Circuit. “We are not bound by dicta, even of our own
court,” says the Fifth Circuit. United States v. Becton, 632 F.2d
1294, 1296 n.3 (5th Cir. 1980) (citation omitted). Though Su‐
preme Court dicta is, “as compared with other dicta, . . . ‘an‐
other matter,’” it is “’not infallible.’” Gearlds v. Entergy Servs.,
Inc., 709 F.3d 448, 452 (5th Cir. 2013) (citations omitted). And
for good reason. Federal courts have “no jurisdiction to
41
pronounce any statute, either of a state or of the United States,
void, because irreconcilable with the constitution, except as it
is called upon to adjudge the legal rights of litigants in actual
controversies.” United States v. Raines, 362 U.S. 17, 21 (1960).
Federal courts are instead bound by two rules: “one, never to
anticipate a question of constitutional law in advance of the
necessity of deciding it; the other, never to formulate a rule of
constitutional law broader than is required by the precise
facts to which it is to be applied.” Id.; see Yazoo & M.V.R. Co. v.
Jackson Vinegar Co., 226 U.S. 217, 219 (1912) (“this court must
deal with the case in hand, and not with imaginary ones.”).
Treating dicta as binding violates the “one doctrine more
deeply rooted than any other in the process of constitutional
adjudication”: “that we ought not to pass on questions of con‐
stitutionality . . . unless such adjudication is unavoidable.”
Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).
Lower courts cannot apply language that is, at heart, an un‐
constitutional advisory opinion. See Whitehouse Hotel Ltd.
P’ship v. Comm’r, 615 F.3d 321, 343 (5th Cir. 2010) (Garza, J.,
concurring in part) (“Federal courts are only permitted to rule
upon an actual ‘case or controversy,’ and lack jurisdiction to
render merely advisory opinions beyond the rulings neces‐
sary to resolve a dispute.”); see also Ryan S. Killian, Dicta and
the Rule of Law, 2013 Pepp. L. Rev. 1, 9 (2013) (“Dicta is, at bot‐
tom, a form of advisory opinion for future cases.”).
Heller instead reassured us that “there will be time enough to
expound upon the historical justifications for the exceptions
we have mentioned if and when those exceptions come before
us.” 554 U.S. at 635. After Bruen, that time has arrived.

42
b. Counting the Votes
Another common method of denying these motions is to tally
the felon‐in‐possession votes implied by Bruen’s concurrences
and dissent. Recall that in these separate opinions, six Justices
endorsed felon disarmament. Five of those Justices are still on
the Court.22 As a result, some district courts have assumed

22 After Bruen, Justice Breyer was replaced by Justice Jackson, so some
might assume that there are six votes supporting felon disarmament—
Roberts, Alito, Sotomayor, Kagan, Kavanaugh, and Jackson. That would
be unwise, and not just because it is insulting to assume anyone’s vote.
Justice Jackson is a former public defender. And many public defenders
consider § 922(g)(1) and its state analogues to be canaries in the coal mine
of our criminal justice system, disenfranchising minorities and exacerbat‐
ing mass incarceration. See Emma Luttrell Shreefter, Federal Felon‐in‐Pos‐
session Gun Laws: Criminalizing A Status, Disparately Affecting Black Defend‐
ants, and Continuing the Nationʹs Centuries‐Old Methods to Disarm Black
Communities, 21 CUNY L. Rev. 143, 175 (2018) (“’Felon in possession’ laws
. . . are disparately enforced against Black defendants, and federal initia‐
tives that charge offenders in the federal rather than state system target
Black communities.”); David E. Patton, Criminal Justice Reform and Guns:
The Irresistible Movement Meets the Immovable Object, 69 Emory L.J. 1011,
1015 (2020) (collecting critiques of federal gun possession prosecutions,
“including stark racial disparity, contribution to mass incarceration, harm
to principles of federalism, diminished civil liberties, and lack of effective‐
ness”); see also Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173,
2194 (2016) (“while fewer published studies focus on the racial dynamics
of criminal gun law, the evidence that we do have suggests that people of
color bear the brunt of enforcement.”).
In Bruen, a coalition of public defenders and Black criminal defense attor‐
neys filed an amicus brief supporting the petitioners. They argued that
“virtually all our clients whom New York prosecutes for exercising their
Second Amendment right are Black or Hispanic. And that is no accident.
New York enacted its firearm licensing requirements to criminalize gun
ownership by racial and ethnic minorities. That remains the effect of its
enforcement by police and prosecutors today.” Brief of Black Attorneys of
43
that as a simple matter of realpolitik, there is no chance the
Supreme Court will find § 922(g)(1) unconstitutional in a fu‐
ture case. E.g., United States v. Davis, No. 1:21‐CR‐206‐ADA‐
BAM‐1, 2023 WL 2505039, at *3 (E.D. Cal. Mar. 14, 2023).
It certainly is tempting for busy trial judges to try and resolve
complicated issues via this kind of calculation. But this Court
cannot honor an advisory opinion on an issue that was not
before the Supreme Court. And it is no substitute for applying

Legal Aid et al. as Amici Curiae in Support of Petitioners at 5. These attor‐
neys pointed out that although the State of New York is approximately
70% white and 18% Black, white residents accounted for only 7% of felony
gun possession cases. Id. at 14‐15. In contrast, Black residents “accounted
for 78% of the state’s felony gun possession cases.” Id. at 14. In New York
City in particular, data showed that “in 2020, 96% of arrests made for gun
possession under N.Y. Penal Law § 265.03(3) . . . were of Black or Latino
people. This percentage has been above 90% for 13 consecutive years.” Id.
at 15.
National data on § 922(g) convictions bear this trend out. In FY 2021, there
were 7,454 § 922(g) convictions, representing approximately 13% of all
federal cases that year. U.S. Sent. Comm’n, Quick Facts – Felon in Posses‐
sion of a Firearm at 1 (June 2022), available at https://www.ussc.gov/re‐
search/quick‐facts/section‐922g‐firearms. Most of these cases were felon‐
in‐possession cases, and they had an average sentence of 60 months’ in‐
carceration. Id.
Of the individuals convicted of violating § 922(g), 56.2% of them were
Black. Id. That same year, though, the population of the United States was
12.1% Black. U.S. Dep’t of Health and Human Servs., Office of Minority
Health, Profile: Black/African Americans (last modified Feb. 24, 2023). Afri‐
can‐Americans’ share of § 922(g) convictions is therefore over four times
their representation in the national population. The result is that “nearly
a quarter of Black adults have been permanently stripped of the right to
lawfully possess firearms.” Zach Sherwood, Time to Reload: The Harms of
the Federal Felon‐in‐Possession Ban in A Post‐Heller World, 70 Duke L.J. 1429,
1464 (2021).
44
the new legal standard announced in Bruen. Believing it to be
insufficient, then, this Court will refrain from counting the
Justices’ votes today.23
c. Bruen Step One
Some courts press on to consider § 922(g) under the Bruen
standard. Recall that Bruen’s first step asks reviewing courts
to determine whether “the Second Amendment’s plain text
covers an individual’s conduct.” 142 S. Ct. at 2126.
In one representative decision, the district court denied the
defendant’s motion to dismiss by reasoning at step one that
“the activity regulated by the felon in possession statute falls
outside the scope of the Second Amendment’s protections be‐
cause it does not impact ‘law‐abiding, responsible citizens.’”
Belin, 2023 WL 2354900, at *2 (quoting Bruen, 142 S. Ct. at
2122). In other words, a convicted felon “is not considered to
be a part of ‘the people’ for purposes of the Second Amend‐
ment as the Amendment’s protections only extend to law‐
abiding citizens. . . . [T]his is known as the civic virtue theory
of the Second Amendment.” United States v. Rice, No. 3:22‐CR‐
36 JD, 2023 WL 2560836, at *6 (N.D. Ind. Mar. 17, 2023) (cita‐
tions omitted).
With respect, this reasoning errs in several ways.
Bruen step one requires us to look at the “conduct” being reg‐
ulated, not the status of the person performing the conduct.
142 S. Ct. at 2126. In Mr. Bullock’s case, the conduct the

23 For those so inclined, it is fascinating that the Justice with arguably the
most knowledge of felon disarmament—or, at least, the longest paper trail
on the subject—declined to join Justice Alito and Justice Kavanaugh’s at‐
tempts to reassure us that felon‐in‐possession laws are constitutional.
45
government seeks to punish is Mr. Bullock’s (alleged) know‐
ing possession of a firearm in his home. It hasn’t charged him
with brandishing a weapon, firing one, domestic violence, as‐
sault, or battery. And Heller already resolved that merely pos‐
sessing a firearm within the home is the core of the right pro‐
tected by the Second Amendment. See 554 U.S. at 629‐30.
Heller also answered, for the purposes of step one, whether
the Second Amendment covers the so‐called “national com‐
munity,” or a subset of the Nation called the “political com‐
munity.” It chose the broader definition: “‘the people’ pro‐
tected by the Fourth Amendment, and by the First and Second
Amendments, . . . refers to a class of persons who are part of
a national community or who have otherwise developed suf‐
ficient connection with this country to be considered part of
that community.” Id. at 580 (cleaned up). “We start therefore
with a strong presumption that the Second Amendment right
is exercised individually and belongs to all Americans.” Id. at
581.24
The en banc Third Circuit, relying on this part of Heller, con‐
cluded that persons with felony convictions are part of “the
people” and presumptively retain Second Amendment rights.
Range, 69 F.4th at 101. As that court explained,

24 As Justice Barrett observed, “[n]either felons nor the mentally ill are cat‐
egorically excluded from our national community.” Kanter, 919 F.3d at 453
(Barrett, J., dissenting). And even if the Supreme Court eventually back‐
tracks from Heller to hold that the Second Amendment protects only the
“political community” rather than the larger “national community,” Jus‐
tice Barrett’s dissent identified case law proximate to the adoption of the
Fourteenth Amendment showing that persons with felony convictions
who had completed their sentences had their civil rights restored, thereby
returning them to the political community. Id. at 461.
46
the phrase “law‐abiding, responsible citizens”

is as expansive as it is vague. Who are “law‐
abiding” citizens in this context? Does it exclude
those who have committed summary offenses
or petty misdemeanors, which typically result
in a ticket and a small fine? No. . . . As the Su‐
preme Court noted recently: “a felon is not al‐
ways more dangerous than a misdemeanant.”
Lange v. California, ––– U.S. ––––, 141 S. Ct. 2011,
2020 (2021) (cleaned up). As for the modifier
“responsible,” it serves only to undermine the
Government’s argument because it renders the
category hopelessly vague. In our Republic of
over 330 million people, Americans have widely
divergent ideas about what is required for one
to be considered a “responsible” citizen.
Id. at 102. This Court agrees.
Writing in a Second Amendment case last year, Judge David
Counts made another essential point:
[Step One] is where Bruen conflicts with Heller.
Heller called proscriptions against felons pos‐
sessing guns “presumptively lawful.” In con‐
trast, because possession is covered by the Sec‐
ond Amendment’s plain text, Bruen makes a
felon’s possession of a firearm “presumptively
constitutional.” Bruen is the controlling stand‐
ard, but this conflict—the presumption of con‐
stitutionality—is what places the heavy burden
on the Government.
47
In any event, Bruen’s first step asks a strictly tex‐
tual question with only one answer: the Second
Amendment’s plain text covers possession of a
firearm. Because the Constitution presump‐
tively protects possessing a firearm,
§ 922(g)(1)’s constitutionality hinges on
whether regulations prohibiting felons from
possessing a firearm are consistent with the Na‐
tion’s historical tradition of firearm regulation.
United States v. Charles, No. MO:22‐CR‐154‐DC, 2022 WL
4913900, at *2 (W.D. Tex. Oct. 3, 2022) (citations omitted).
For these reasons, this Court finds that at Bruen step one, the
plain text of the Second Amendment covers Mr. Bullock’s
possession of firearms in his home.25
d. Bruen Step Two
This Court has similar reservations about Bruen step two:
whether the government has shown that permanently dis‐
arming Mr. Bullock is supported by a historical tradition of
analogous laws.
Necessarily fewer district court cases reach this step; most are
satisfied with Heller’s assurances. That said, there are a few
themes among those that engage with this point.

25 The Rice court also considered, at this step, whether felon disarmament
is justified by proposals discussed at three state ratifying conventions. See
2023 WL 2560836, at *7. This Judge thinks this analysis belongs at Bruen
step two, since it goes beyond an interpretation of the plain text of the
Second Amendment and into the history of arguably analogous provi‐
sions. Accordingly, the ratifying conventions will be considered in more
detail below.
48
i. The Ratifying Conventions
One theme focuses on the Massachusetts, Pennsylvania, and
New Hampshire constitutional ratifying conventions. E.g.,
United States v. Hoeft, No. 4:21‐CR‐40163‐KES, 2023 WL
2586030, at *4 (D.S.D. Mar. 21, 2023).
At the Massachusetts convention, Samuel Adams proposed
that gun rights be limited to “peaceable citizens.” Id. (citation
omitted). In Pennsylvania, Anti‐Federalists proposed guaran‐
teeing a right to bear arms “unless for crimes committed.” Id.
(citation omitted). And in New Hampshire, delegates recom‐
mended an amendment that guaranteed a right to bear arms
to all except those “in actual rebellion.” United States v.
Coombes, No. 22‐CR‐189‐GKF, 2022 WL 4367056, at *6 (N.D.
Okla. Sept. 21, 2022) (citation omitted). These proposals, taken
together, supposedly “demonstrate a continued understand‐
ing of the Second Amendment as restricted to law abiding cit‐
izens.” Hoeft, 2023 WL 2586030, at *4.
This theory runs into a few problems.
First, and most obviously, none of these proposals became
law. See United States v. Rahimi, 61 F.4th 443, 457 (5th Cir.
2023). Heller reminds us that “[i]t is always perilous to derive
the meaning of an adopted provision from another provision
deleted in the drafting process,” 554 U.S. at 590, and this is a
good example of why that is true.
Maybe the Framers deleted the mention of law‐abiding citi‐
zens from the Second Amendment because they wanted all
persons to retain their “natural right of resistance and self‐
49
preservation.”26 Id. at 594 (quoting Blackstone). Or maybe the
Framers deleted law‐abiding citizens from the Second
Amendment because it was so widely understood that only
the virtuous could keep arms that they need not waste pre‐
cious words to codify popular understanding. No wonder
thoughtful judges and scholars continue to disagree about
what the omissions mean. Compare United States v. Hicks, No.
W:21‐CR‐60‐ADA, 2023 WL 164170, at *5 (W.D. Tex. Jan. 9,
2023) (“But those proposed amendments were just that: pro‐
posed.”) and Larson, 60 Hastings L.J. at 1375 (“The best one
can say is that at least some people in Pennsylvania felt crim‐
inals could be disarmed,” but this “text is not reflected in the
Second Amendment as proposed and ratified.”) with Coombes,
2022 WL 4367056, at *7 (“no objection was made because the
[felon] exclusions were understood.”). Originalism doesn’t
tell us which of these interpretations is correct.27

26 There’s an obvious policy justification for this. If the government auto‐
matically and permanently disarms persons with felony convictions,

won’t future criminals know that the easiest, most helpless people to tar‐
get for robbery, rape, and murder are the homes and families of those per‐
sons, who no longer can defend themselves? After all, “[f]elons who have
served their sentences are no less susceptible to home invasions and as‐
saults than are law‐abiding people (perhaps even more susceptible).”
Mark Tushnet, Heller and the Perils of Compromise, 13 Lewis & Clark L. Rev.
419, 424 (2009).
27 The dilemma is a familiar one. See Williams v. Florida, 399 U.S. 78, 96‐97
(1970) (holding that “provisions that would have explicitly tied the ‘jury’
concept to the ‘accustomed requisites’ of the time were eliminated. Such
action is concededly open to the explanation that the ‘accustomed requi‐
sites’ were thought to be already included in the concept of a ‘jury.’ But
that explanation is no more plausible than the contrary one: that the de‐
letion had some substantive effect. Indeed, given the clear expectation
that a substantive change would be effected by the inclusion or deletion
50
The second problem adds to the conundrum. Bruen expressly
instructs judges to “doubt that three colonial regulations could
suffice to show a tradition” of gun regulation. 142 S. Ct. at
2142; see also id. at 2153 (“we will not give disproportionate
weight to a single state statute and a pair of state‐court deci‐
sions.”). Yet the ratifying conventions theory is based on three
proposals.
The final difficulty for the ratifying conventions theory is the
one Justice Barrett identified. Even if these three proposals are
transmuted into actual law, and through some alchemy have
their application broadened beyond three states to the entire
nation, they do not justify the claimed restriction. “The con‐
cern common to all three” ratifying conventions, Justice Bar‐
rett concluded, “is not about felons in particular or even crim‐
inals in general; it is about threatened violence and the risk of
public injury.” Kanter, 919 F.3d at 456 (Barrett, J., dissenting).
She thought dangerousness was the proper lens, not status.
As a result, this Court is not persuaded that the ratifying con‐
ventions provide the historical support required to uphold
§ 922(g)(1).
ii. The Death Penalty
Other courts find historical support for felon disarmament in
“laws which authorized capital punishment and estate forfei‐
ture for persons convicted of felonies.” Rice, 2023 WL 2560836,
at *8. They note that the “First Congress, which drafted and
proposed the Second Amendment, made a variety of felonies
punishable by death including forging or counterfeiting a

of an explicit ‘vicinage’ requirement, the latter explanation is, if anything,
the more plausible.”) (emphasis added).
51
public security.” Id. at 9 (citation omitted). Under this logic,
“given the exceptionally heavy burden [death and estate for‐
feiture] place upon an individual, which inherently deprives
the individual of their Second Amendment rights, disarma‐
ment under § 922(g)(1) is a comparatively lenient punishment
and therefore is constitutionally permissible.” Id.
It is true, as a matter of logic, that if the state has the power to
end certain persons’ lives, it necessarily has the lesser power
to disarm those persons. Nevertheless, that does not prove
what its proponents think it proves.
For one, we don’t know the direction of the causal chain. Does
this history mean that persons with felony convictions can be
disarmed because some were executed? Or does it mean that
disarmament applies only to persons convicted of a death‐el‐
igible offense? Originalism doesn’t say. But answering that
question might immediately restore the Second Amendment
rights of millions of Americans who, like Mr. Bullock, were
convicted of death‐ineligible felonies and served their sen‐
tences in full to return to the free world.
The en banc Third Circuit had a different take, based on the
different nature of the punishments. “That Founding‐era gov‐
ernments punished some nonviolent crimes with death does
not suggest that the particular (and distinct) punishment at is‐
sue—lifetime disarmament—is rooted in our Nation’s history
and tradition,” it held. Range, 69 F.4th at 105.
The greater does not necessarily include the
lesser: founding‐era governments’ execution of
some individuals convicted of certain offenses
does not mean the State, then or now, could con‐
stitutionally strip a felon of his right to possess
52
arms if he was not executed. As one of our dis‐
senting colleagues notes, a felon could “repur‐
chase arms” after successfully completing his
sentence and reintegrating into society. Krause
Dissent at 28‐29. That aptly describes Range’s
situation. So the Government’s attempt to dis‐
arm Range is not “relevantly similar” to earlier
statutes allowing for execution and forfeiture.
See Bruen, 142 S. Ct. at 2132.
Id.
This case asks the same question. If America’s historical tra‐
dition permitted a felon to repurchase firearms after complet‐
ing their sentence, why can’t Mr. Bullock today?
iii. The Law Reviews
Again, most of the district court cases that make up the post‐
Bruen consensus do not engage with Second Amendment
scholarship, finding Heller’s assurances more than sufficient
to decide their motions to dismiss. Of those that do, however,
several law journals articles recur. The top five most‐com‐
monly cited Second Amendment law review articles this
Court catalogued were, in no particular order,
 Joseph G.S. Greenlee, The Historical Justification
for Prohibiting Dangerous Persons from Possessing
Firearms, 20 Wyo. L. Rev. 249 (2020);
 C. Kevin Marshall, Why Can’t Martha Stewart
Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695
(2009);
 Don B. Kates, Jr., Handgun Prohibition and the
Original Meaning of the Second Amendment, 82
Mich. L. Rev. 203 (1983);
53
 Glenn Harlan Reynolds, A Critical Guide to the

Second Amendment, 62 Tenn. L. Rev. 461 (1995);
and
 Don B. Kates, Jr., The Second Amendment: A Dia‐
logue, 49 Law & Contemp. Probs. 143 (1986).
Set aside for a moment the credibility concerns with these
pieces: the fact that none of these authors is a trained histo‐
rian, that some of these authors are gun‐rights advocates by
profession, and that few law journals are peer‐reviewed. Any
fact‐finder would take into account these problems were
these articles and experts subject to the crucible of litigation.
For the time being, though, consider the articles strictly on
their merits.
The district courts citing these articles derived considerable
utility from them. One court, for example, used the Greenlee,
Marshall, and (first) Kates articles to deny the defendant’s
motion to dismiss, finding in them historical support for dis‐
arming dangerous individuals. See United States v. Dixon, No.
22 CR 140, 2023 WL 2664076, at *4 & n.3 (N.D. Ill. Mar. 28,
2023).
The problem is that these articles can be cherry‐picked in the
exact opposite direction—to support granting a defendant’s
motion to dismiss.
For example, Marshall concludes that “a lifetime ban on any
felon possessing any firearm is not ‘longstanding’ in Amer‐
ica.” 32 Harv. J.L. & Pub. Pol’y at 697. And Greenlee finds “no
historical justification for completely and forever depriving
peaceable citizens—even nonviolent felons—of the right to
keep and bear arms. Nor is there a historical justification for
disarming unvirtuous citizens.” 20 Wyo. L. Rev. at 286.
54
If applied here, therefore, Marshall’s article supports Mr. Bull‐
ock’s right to keep a long gun in his home for self‐defense, 32
Harv. J.L. & Pub. Pol’y at 732, and approves of re‐armament
for someone in Mr. Bullock’s situation. As Marshall writes, “it
is difficult to see the justification for disarming a 60 year old
who was convicted of a crime of violence at age 20, and was
not punished capitally or with life in prison (classes that pre‐
sent no issue for an arms disability), but instead was released
at age 40, and has stayed clean for 20 years.” Id. at 735; accord
Larson, 60 Hastings L.J. at 1381. If applied here, meanwhile,
Greenlee’s article would require additional proceedings to
determine if Mr. Bullock was convicted of a violent or dan‐
gerous felony—the classification issue that will be addressed
in detail below. 20 Wyo. L. Rev. at 285.
That leaves the Kates and Reynolds articles. They are even
less persuasive.
As Greenlee acknowledges, Kates’ Michigan Law Review arti‐
cle is “important” for setting forth the theory that the Second
Amendment was historically limited to virtuous citizens. Id.
at 275. But Greenlee discredits that article, and Kates’ 1986 fol‐
low‐up reaching the same conclusion, because they “pro‐
vide[] no meaningful support for the theory” and lack “any
examples of laws disarming ‘unvirtuous’ citizens.” Id. at 275‐
76.28 Greenlee gives no weight to Reynolds’ 1995 article for the
same reason: it “included no examples of laws disarming ‘un‐
virtuous’ citizens.” Id. at 277. In short, neither the Kates nor

28 Accord Larson, 60 Hastings L.J. at 1374 (“Yet the actual sources Kates
relied upon (and which subsequent writers have echoed) are surprisingly
thin. Indeed, so far as I can determine, no colonial or state law in eight‐
eenth‐century America formally restricted the ability of felons to own fire‐
arms.”).
55
the Reynolds piece demonstrates the tradition of disarma‐

ment they are trotted out to prove.29
One might assume from this discussion that Greenlee got it
right. This Judge is not so sure.
Greenlee, like Justice Barrett, makes several compelling
points when he grounds in history the disarmament of dan‐
gerous persons, but the article is hardly bulletproof. When re‐
stricted only to Founding‐era sources, half of Greenlee’s argu‐
ment rests on the three ratifying conventions already discred‐
ited above. 20 Wyo. L. Rev. at 265‐67 and 275 (asserting that
“American tradition reflects the right [Samuel] Adams envi‐
sioned.”). And the other half of the Founding‐era sources
Greenlee relies upon show that persons could have their fire‐
arms right restored “once they no longer posed a violent
threat.” Id. at 269. If that is true, Mr. Bullock may have re‐
gained his Second Amendment right years ago.
3. Concluding Thoughts on History and Tradition
In A Matter of Interpretation, Justice Scalia argued that “legis‐
lative history” had been manipulated and abused by out‐
come‐oriented judges. A Matter of Interpretation at 29‐37.
“Since there are no rules as to how much weight an element
of legislative history is entitled to,” he wrote, “it can usually
be either relied upon or dismissed with equal plausibility.” Id.
at 35‐36. This allowed the “willful judge” to discard evidence
simply by calling it “ambiguous” or “inconclusive.” Id. at 36.

29 Kates also asserts that felon disarmament is historically justified be‐
cause the common law “punished felons with automatic forfeiture of all
goods, usually accompanied by death.” 82 Mich. L. Rev. at 266. The sen‐
tence lacks any citation or analysis, and this Court has already discussed
why this justification fails to support § 922(g)(1).
56
“On balance,” he concluded, legislative history:
has facilitated rather than deterred decisions
that are based upon the courts’ policy prefer‐
ences, rather than neutral principles of law. . . .
In any major piece of legislation, the legislative
history is extensive, and there is something for
everybody. As Judge Harold Leventhal used to
say, the trick is to look over the heads of the
crowd and pick out your friends. The variety
and specificity of result that legislative history
can achieve is unparalleled.
Id. at 35‐36.
Three decades later, legislative history is out of favor, in part
due to Justice Scalia’s advocacy. But all of his critiques apply
with equal force to this new Second Amendment regime—the
discernment of “historical tradition.”
The new standard has no accepted rules for what counts as
evidence. As one historian said about Bruen, “the rule of evi‐
dence appears to be: if I agree with it, it’s evidence—if I don’t,
it’s not.” Jill Lepore, The Supreme Court’s Selective Memory, The
New Yorker (June 24, 2022). Like Justice Scalia’s nemeses, the
justices who decided Bruen wrote off the history they didn’t
like by declaring it “ambiguous at best.” 142 S. Ct. at 2139.
And the new regime remains susceptible to accusations of po‐
litical bias, as Judge Wilkinson (among others) has lamented.
See 95 Va. L. Rev. at 267. Now, instead of plucking from the
record a favorable statement of a friendly legislator, the Jus‐
tices need only select a favorable historical analogue from a
friend “in the legal academy.” Saul Cornell, Cherry‐Picked His‐
tory and Ideology‐Driven Outcomes: Bruen’s Originalist
57
Distortions, ScotusBlog (June 27, 2022). As demonstrated

above, though, the most‐frequently‐cited law journals in this
area either fail to support or wholly contradict the result they
are wielded to justify.
When he confronted these problems in the era of legislative
history, Justice Scalia called for “an end” to this “brief and
failed experiment, if not for reasons of principle than for rea‐
sons of practicality.” A Matter of Interpretation at 36. “Judges
lawyers, and clients will be saved an enormous amount of
time and expense,” he wrote. Id. “What a waste. We did not
use to do it, and we should do it no more.” Id. at 37.
For the same reasons, maybe it also is time to put an end to
elevating “historical tradition” above all other modes of legal
analysis.
D. The Problem of Individual Adjudication
Modern felon‐in‐possession laws are fairly straightforward.
Felony status is usually a simple binary, and it’s easy to dis‐
arm the entire category of persons with felony convictions.
Post‐Bruen, however, the landscape may be much more com‐
plicated, requiring individual adjudication. Here are a few
reasons why.
If the Supreme Court eventually determines at a high level of
generality that “felon disarmament” is supported by history
and tradition, we lower court judges need it to press on and
determine the “original meaning” of a felony conviction.
Bruen, 142 S. Ct. at 2137. Specifically, we need to know (1)
whether all modern felonies result in disarmament, or just
those that existed at the founding, and (2) whether all felonies
result in disarmament, or just violent felonies. No matter how
58
those questions turn out, we then need to know whether dis‐
armament is a temporary or permanent consequence.
Attempting to understand the contours of those questions,
this Court researched the original public meaning of the fel‐
ony. That history is long and complicated, but this Court will
do its best to explain the relevant features.
“The traditional common law felonies were nine: murder,
manslaughter, arson, burglary, robbery, rape, sodomy, may‐
hem, and larceny. Many more were added by statute.” Will
Tress, Unintended Collateral Consequences: Defining Felony in the
Early American Republic, 57 Clev. St. L. Rev. 461, 464 (2009) (ci‐
tation omitted). When Blackstone—whose works “consti‐
tuted the preeminent authority on English law for the found‐
ing generation,” Heller, 554 U.S. at 593‐94 (quotation marks
and citation omitted)—wrote his Commentaries in 1765, “Par‐
liament had designated at least 160 crimes as statutory felo‐
nies,” Alice Ristroph, Farewell to the Felonry, 53 Harv. C.R.‐C.L.
L. Rev. 563, 572 (2018) (citation omitted). At that time, the def‐
inition of “felony” could be distilled into “crimes punishable
by forfeiture and death.” Id.
Although the Founders used the word in the Constitution,
“the parameters of the felony category were unclear at the
time the Constitution was drafted and remained so for several
decades.” Id. at 574. “A patch‐work system of poorly orga‐
nized and hard to locate statutes had created discontent with
the legal system in post‐Revolutionary America. This discon‐
tent was strengthened by uncertainty as to which portions of
the common law tradition had made the transition from pre‐
to post‐Independence.” Tress, 57 Clev. St. L. Rev. at 471. There
was no “regular course of practice” that would ordinarily
59
“liquidate & settle the meaning of disputed or indeterminate
terms & phrases.” Bruen, 142 S. Ct. at 2136 (cleaned up).
Reformers soon modernized the system. See Tress, 57 Clev. St.
L. Rev. at 469‐70. By 1823, there had been so many changes
that Massachusetts lawyer and legislator Nathan Dane wrote
that there were “many felonies, not one punished with forfei‐
ture of estate, and but a very few with death.” Christina Mul‐
ligan et al., Founding‐Era Translations of the U.S. Constitution,
31 Const. Comment. 1, 45‐46 (2016) (citation omitted).
To determine original public understanding, the Supreme
Court has instructed us to be precise about the historical pe‐
riod we examine. On one hand, “English common‐law prac‐
tices and understandings at any given time in history cannot
be indiscriminately attributed to the Framers of our own Con‐
stitution.” Bruen, 142 S. Ct. at 2136. On the other hand, “we
must also guard against giving postenactment history more
weight than it can rightly bear.” Id. No, the Court has “gener‐
ally assumed that the scope of the protection applicable to the
Federal Government and States is pegged to the public under‐
standing of the right when the Bill of Rights was adopted in
1791.” Id. at 2137 (collecting cases).
The problem is that “felony” was not well understood in 1791.
One might think that, at a minimum, we could agree that the
nine felonies enumerated at common law would qualify for
disarmament. Not so fast.
Madison complained that the common‐law definition of fel‐
ony was “vague.” Eugene Kontorovich, Discretion, Delegation,
and Defining in the Constitutionʹs Law of Nations Clause, 106 Nw.
U. L. Rev. 1675, 1699 & n.113 (2012) (citation omitted). This
Court does not know the context in which he said that, but
60
Justice Barrett has elaborated for us. In Madison’s view, “’fel‐
ony’ was ‘a term of loose signification even in the common
law of England,’ but more so in the States where ‘[t]he mean‐
ing of the term . . . [was] not precisely the same in any two of
the States; and varie[d] in each with every revision of its crim‐
inal laws.’” Kanter, 919 F.3d at 459 (Barrett, J., dissenting)
(quoting The Federalist No. 42); see also Voisine, 579 U.S. at 698
(“The common law traditionally used a variety of overlap‐
ping and, frankly, confusing phrases to describe culpable
mental states—among them, specific intent, general intent,
presumed intent, willfulness, and malice.”).
And what about the statutory felonies? Are we expected to
adjudicate disarmament on a case‐by‐case basis by, for exam‐
ple, comparing the present charge a defendant is facing to its
Founding‐era analogue? Maybe we could apply a “historical
categorical approach” to “compare the elements of the [mod‐
ern] statute forming the basis of the defendant’s conviction
with the elements of the [historical] ‘generic’ crime—i.e., the
offense as commonly understood.” Descamps v. United States,
570 U.S. 254, 257 (2013). And perhaps that also suggests a
modified historical categorical approach, which “permits sen‐
tencing courts to consult a limited class of [modern] docu‐
ments, such as indictments and jury instructions, to deter‐
mine which alternative formed the basis of the defendant’s
prior conviction,” then “compare the elements of the [mod‐
ern] crime of conviction (including the alternative element
used in the case) with the elements of the [historical] generic
crime.” Id.
I say this tongue in cheek. We already use the categorical and
modified categorical approaches to determine whether a de‐
fendant’s past conviction is “for a violent felony” for purposes
61
of the Armed Career Criminal Act. Id. And the methodologies
are not well‐liked.
Professor Barkow, a former member of the U.S. Sentencing
Commission, has described how “these state statutory ques‐
tions end up clogging the federal court dockets, as judges
struggle to determine whether various statutes from the fifty
states meet the ACCA’s definition of ‘violent felony.’” Rachel
E. Barkow, Categorical Mistakes: The Flawed Framework of the
Armed Career Criminal Act and Mandatory Minimum Sentencing,
133 Harv. L. Rev. 200, 206 (2019). Justice Thomas calls the cat‐
egorical approach “difficult to apply” and an “absurdity.”
Quarles v. United States, 139 S. Ct. 1872, 1880‐81 (2019)
(Thomas, J., concurring). Justice Alito says we have created a
“mess” that “calls for sentencing judges to delve into point‐
less abstract questions.” Mathis v. United States, 579 U.S. 500,
538, 541 (2016) (Alito, J., dissenting). Judge Bybee reports that
“over the past decade, perhaps no other area of the law has
demanded more of our resources.” United States v. Aguila‐
Montes de Oca, 655 F.3d 915, 917 (9th Cir. 2011) (en banc).
Given the critiques, perhaps we should not expand the meth‐
odology to the disarmament context.30

30 The categorical approach is not universally condemned. See United
States v. Morris, 61 F.4th 311, 321 (2d Cir. 2023) (Lohier, J., concurring)
(finding “some wisdom” in it); United States v. Faust, 853 F.3d 39, 65‐66 (1st
Cir. 2017) (Barron, J., concurring) (concluding that the categorical ap‐
proach “respects . . . the notice‐protecting principle of lenity” and, “for all
of its faults, reflects respect both for due process and federalism”); Amit
Jain and Phillip Dane Warren, An Ode to the Categorical Approach, 67 UCLA
L. Rev. Discourse 132, 135‐36 (2019) (“The categorical approach . . . is far
from the nonsensical nightmare its naysayers portray it to be. . . . Sure, the
approach can be difficult to apply at times; federalism, after all, is messy.
62
Justice Barrett found dangerousness, rather than felony sta‐

tus, the dispositive lens of historical disarmament. Her dis‐
sent is fairly compelling. The Fifth Circuit’s recent decision in
United States v. Rahimi, however, rejected analogies to histori‐
cal laws disarming “dangerous” people, because the “why”
of those laws was different than the “why” of modern laws.
61 F.4th at 457. It concluded that Founding‐era Americans dis‐
armed people to preserve “political and social order,” rather
than protect potential victims from the threat of crime. Id.
Finally, if dangerousness is indeed the lens through which
disarmament is adjudicated, we will need to know the proper
standard to apply. Judge Schreier observes that in her Circuit,
the definition of dangerousness is different from the defini‐
tion of crime of violence; dangerousness requires only “the
potential for harm to another person.” Hoeft, 2023 WL
2586030, at *5 (citation omitted). She found that manslaughter
easily met that definition, sufficient to support a restriction of
the defendant’s Second Amendment rights. Id. If the defini‐
tion of violence is applied, in contrast, some forms of second‐
degree murder, manslaughter, and assault may be excluded.
That is so because “in many States, some forms of second‐de‐
gree murder and manslaughter do not require intent or
knowledge,” and “several States criminalize felony assault in
a single, indivisible provision that can be satisfied by intent,
knowledge, or recklessness.” Borden v. United States, 141 S. Ct.
1817, 1856 (2021) (Kavanaugh, J., dissenting) (citations omit‐
ted).

Even so, the categorical approach is far and away the fairest, most con‐
sistent, and most administrable option among alternatives.”).
63
This Court does not know the answers to these questions, but
presents them here in hopes that future judges and justices
can answer them with enough detail to enable trial courts to
perform their duties.
IV. Mr. Bullock’s Case
The remaining question is how this law applies to Mr. Bull‐
ock.
For the reasons stated above, this Court believes that Heller’s
assurances about felon‐in‐possession laws are not controlling.
The new standard articulated in Bruen applies.
At Bruen step one, the plain text of the Second Amendment
covers Mr. Bullock’s conduct—possession of ordinary fire‐
arms in the home—and therefore presumptively protects
him. The burden then shifts to the government. It cannot
“simply posit” that § 922(g)(1) “promotes an important inter‐
est.” Bruen, 142 S. Ct. at 2126. Instead, “the government must
demonstrate that [§ 922(g)(1)] is consistent with this Nation’s
historical tradition of firearm regulation.” Id.
A. The Government’s Prior Positions
The government attorney prosecuting Mr. Bullock’s case, like
all of us dealing with Bruen’s fallout, was placed in an unen‐
viable position. That is because in cases litigated not that long
ago, the U.S. Department of Justice formally advanced the po‐
sition that early American history did not support felon dis‐
armament.
In 2011, for example, the Department told Judges on the U.S.
Court of Appeals for the Fourth Circuit that “[a]s for con‐
victed criminals, Colonial societies do not appear to have cat‐
egorically prohibited their ownership of firearms.” Brief of
64
Appellee, United States v. Staten, No. 10‐5318, 2011 WL

1542053, at *25 (4th Cir. Apr. 25, 2011). Similarly, in a case
pending before the U.S. Court of Appeals for the First Circuit,
the government told the court that “18 U.S.C. § 922(g)(1) is
firmly rooted in the twentieth century and likely bears little
resemblance to laws in effect at the time the Second Amend‐
ment was ratified.” Brief of Appellee, United States v. Petten‐
gill, No. 10‐2024, 2011 WL 1977759, at **27‐28 (1st Cir. May 13,
2011).
Given Bruen’s demanding standard, these admissions sug‐
gested that the government had its work cut out for it.
B. The Government’s Response Brief
In any event, the three‐and‐a‐half‐page response brief the
government filed in this case, dated September 8, 2022, fails
to meet its burden.
The government opens by asserting that earlier in 2022, the
Fifth Circuit rejected a challenge to another provision of
§ 922(g). Docket No. 63 at 1. Not so. The case it cites, United
States v. McGinnis, was decided in 2020, not 2022. 956 F.3d 747
(5th Cir. 2020). That means it was decided without the benefit
of Bruen. And recall that Bruen expressly abrogated Fifth Cir‐
cuit law. See 142 S. Ct. at 2127 n.4.
The government then quotes Heller’s assurance that felon‐in‐
possession laws are presumptively lawful. Docket No. 63 at 2.
As already explained, the Court cannot honor the advisory
opinion that assurance represents.
Next, the government attempts to limit Bruen to gun permit
disputes. Id. Mr. Bullock cannot benefit from the case, it
claims, because he “is charged pursuant to a statute that does
not involve the exercise of discretion in determining whether
65
to grant firearms permits.” Id. That fails to recognize how
Bruen articulated a new legal standard applicable to all Sec‐
ond Amendment challenges.
The government then tries to apply selected language from
Bruen. It urges that the decision protects only “’the right of
law‐abiding, responsible citizens to use arms’ for self‐de‐
fense.” 142 S. Ct. at 2131 (quoting Heller, 554 U.S. at 635).
Although the en banc Third Circuit found these words to con‐
stitute “dicta,” Range, 69 F.4th at 101, a point on which this
Court agrees, they form the core of the government’s argu‐
ment here. So what follows will explain in more detail why
this language cannot bear the weight it is given.
First, if the Court is to honor this line, it must necessarily re‐
fuse to honor the very next paragraph of Heller, in which the
Supreme Court promised the American people that “there
will be time enough to expound upon the historical justifica‐
tions for the exceptions we have mentioned if and when those
exceptions come before us.” Heller, 554 U.S. at 635. This Court
does not know how to make that choice. The bevy of post‐
Bruen cases suggest that the time to expound upon the histor‐
ical justifications for § 922(g)(1) is now.
Second, as Range explained, the phrase “law‐abiding, respon‐
sible citizens” is “hopelessly vague.” 69 F.4th at 102. It cannot
“mean that every American who gets a traffic ticket” loses her
Second Amendment rights.31 Id. But limiting it to quote‐

31 Nor can it mean that every postal carrier who steals a $15 gift card from
the mail should lose her Second Amendment right. See, e.g., United States
v. Marshall, No. 3:18‐CR‐248 (S.D. Miss. filed Dec. 11, 2018) (former USPS
carrier pleaded guilty to violating 18 U.S.C. § 1709 by stealing a $15 Lowe’s
gift card from the mail); United States v. Rosell, No. 3:18‐CR‐255 (S.D. Miss.
66
unquote “real crimes” like felonies also misses the mark, be‐
cause some modern felonies “seem minor” and “some misde‐
meanors seem serious.” Id. The modifier “responsible,” mean‐
while, is impossible to apply. “In our Republic of over 330
million people, Americans have widely divergent ideas about
what is required for one to be considered a ‘responsible’ citi‐
zen.” Id.
Finally, even if the Second Amendment protects only “law‐
abiding, responsible citizens,” that does not resolve whether
§ 922(g)(1) is constitutional as applied to Mr. Bullock. He com‐
pleted his sentence approximately 15 years ago. An examina‐
tion of history and tradition cannot be avoided in this case—
in other words, we must grapple with the historical record
around felon disarmament—because we need to know
whether Mr. Bullock’s Second Amendment rights were re‐
stored upon completion of his carceral sentence. But the gov‐
ernment has avoided the issue of rights restoration.
The government’s brief doesn’t say much more. It quotes the
concurrences of Justices Alito and Kavanaugh for the propo‐
sition that felon‐in‐possession laws were left undisturbed by
Bruen, Docket No. 63 at 3, but this Order has already ad‐
dressed those points. The government cites a colleague’s de‐
cision denying a similar motion to dismiss, but that decision
relies upon United States v. Yancey, 621 F.3d 681 (7th Cir. 2010)
to conclude that “the government could disarm ‘unvirtuous
citizens.’” United States v. Daniels, 610 F. Supp. 3d 892, 896

filed Dec. 12, 2018) (former USPS employee pleaded guilty to violating 18
U.S.C. § 1709 by stealing a Lowe’s gift card and $10 from the mail); United
States v. Sumner, No. 3:20‐CR‐152 (S.D. Miss. filed Nov. 17, 2020) (former
USPS employee pleaded guilty to violating 18 U.S.C. § 1709 by stealing
and using 15 $10 coupons from the mail).
67
(S.D. Miss. 2022). As shown above, that theory lacks historical
support.32 And lastly, the government summarily asserts that
§ 922(g)(1) “is part of the historical tradition of regulating fire‐
arms possession ‘to prevent guns from falling into the wrong
hands.’” Docket No. 63 at 3. The case it quotes for that propo‐
sition, however, predates Bruen, concerns a different criminal
law, and says nothing about historical tradition. See Abramski
v. United States, 573 U.S. 169, 172 (2014).
Missing from this brief, in sum, is any example of how Amer‐
ican history supports § 922(g)(1), much less the number of ex‐
amples Bruen requires to constitute a well‐established tradi‐
tion. The government has, therefore, not met its burden.
To this, the government will likely argue that the Court
should consider its three supplemental briefs. The Court turns
to those now.
C. The Government’s Supplemental Briefs
Recall that after the briefing closed on the Motion to Dismiss,
the Court asked the parties to provide their “position[s] on the
appointment of a consulting expert.” Docket No. 65 at 6. The
government timely responded. Docket No. 71. It first argued
that, given precedent, no historian was required because “the
prohibition against felons possessing firearms is so thor‐
oughly established as to not require detailed exploration of
the historical record for the purpose of this case.” Id. at 1. It
then presented a new line of attack, contending that Mr. Bull‐
ock qualifies for disarmament because his felonies were vio‐
lent and he is dangerous. Id. at 6‐7.

32 Yancey is based on the same Reynolds and Kates articles that don’t pro‐
vide any examples to support their theory. See 621 F.3d at 684‐85.
68
The first argument was in line with the government’s re‐
sponse brief and presents no procedural problem. The new
line of attack, however, was untimely and will not be consid‐
ered.
Bruen was clear. “[I]n our adversarial system of adjudication,
we follow the principle of party presentation.” 142 S. Ct. at
2130 n.6 (citation omitted). “Counsel almost always know a
great deal more about their cases than we do, and this must
be particularly true of counsel for the United States, the rich‐
est, most powerful, and best represented litigant to appear be‐
fore us.” Greenlaw v. United States, 554 U.S. 237, 244 (2008)
(quotation marks and citation omitted). It is for that reason
that we hold counsel, and their clients, to the positions they
advance at the time they should be advanced. See Link v. Wa‐
bash R. Co., 370 U.S. 626, 634 (1962).
One of the rules of party presentation is that courts may de‐
cline to consider arguments “outside the scope of the supple‐
mental briefing.” In re APA Assessment Fee Litig., 766 F.3d 39,
56 (D.C. Cir. 2014). The rule is wielded across the Courts of
Appeals and the district courts of this Circuit. See United States
v. McCann, 517 F.3d 1, 2 n.1 (1st Cir. 2005); Sharp v. Johnson,
669 F.3d 144, 153 n.3 (3d Cir. 2012); Doe v. Heil, 533 F. App’x
831, 836 n.4 (10th Cir. 2013); United States v. Jackson, 373 F.
App’x 7, 10 n.4 (11th Cir. 2010); see also Saketkoo v. Tulane Univ.
Sch. of Med., 510 F. Supp. 3d 376, 398 (E.D. La. 2020); Whitney
Nat. Bank v. Boylston, No. CIV.A. 09‐59, 2009 WL 2423957, at
*4 (W.D. La. Aug. 6, 2009); MacroPoint, LLC v. Ruiz Food Prod.,
Inc., No. 6:16‐CV‐1133‐RWS‐KNM, 2017 WL 3722053, at *6
(E.D. Tex. Aug. 29, 2017). “To the extent courts have approved
departures from the party presentation principle in criminal
cases, the justification has usually been to protect a pro se
69
litigant’s rights”—not the government’s. Greenlaw, 554 U.S. at
243‐44 (citation omitted).
Here, the Court exercises that discretion and declines to con‐
sider the United States’ untimely argument that Mr. Bullock
may be disarmed because of violent felonies or dangerous‐
ness. It constitutes an unauthorized second bite at the apple.
Even if the Court considered this argument, it would reject it
on the merits.
In this part of its supplemental brief, the government blames
Mr. Bullock for “find[ing] no proponent for a Second Amend‐
ment right to bear arms in the existing case law in this Circuit
or elsewhere and there is no basis to expect that resort to the
historical record will be of any avail under the circumstances
of this case.” Docket No. 71 at 7. But after Bruen, the burden
to prove historical analogues rests on the government, not the
defendant. “The United States was thus well aware that Bruen
not only placed the burden squarely on it to develop the his‐
torical record, but also put it on notice that its failure to do so
might be decisive.” United States v. Stambaugh, No. CR‐22‐218‐
PRW‐2, 2023 WL 172037, at *5 (W.D. Okla. Jan. 12, 2023).
The government’s violent‐and‐dangerous argument is also
out of sequence, as the government still had not (and has not
today) proven the predicate question: that there is a historical
tradition of disarming either the violent or the dangerous. The
government had to prove the underlying principle of dis‐
armament before it could apply it to Mr. Bullock.
Mr. Bullock has a criminal history, yes. Armed with that
knowledge, though, the government put forth no effort to
ground in history the present charges it brought again him.
That is what Bruen requires. As the Stambaugh court
70
concluded in finding unconstitutional a different portion of §
922 after Bruen, “[a] historical analogue to support constitu‐
tional applications of § 922(n) might well exist, but the United
States hasn’t pointed to it. . . . [T]hat failure is fatal.” Id. at *6.
* * *
Again, Mr. Bullock presents an as‐applied challenge to
§ 922(g)(1). He contends that the charge against him, and him
only, should be dismissed because “the prosecution has failed
to establish a ‘historical tradition’ supporting lifetime crimi‐
nalization of [his] possession of a firearm.” Docket No. 64 at
9. The Court agrees. In plain English, that means that the
charge against Mr. Bullock will be dismissed today, and the
federal government may continue to prosecute other persons
for violating § 922(g)(1).33
V. Conclusion
This Court has contemplated and researched the latest Second
Amendment standard for quite some time. It has two final
thoughts about this new Constitutional regime. They concern
how the Court defines Constitutional rights and originalism’s
place in American law.
A. The Persistence of Second‐Class Constitutional Rights
Since 2008, the Supreme Court has broadly construed the Sec‐
ond Amendment. “Arms” is defined at a high level of gener‐
ality. It is not limited to the weapons of 1791, like muskets and
flintlock pistols, or those arms that a Militia uses in collective
defense. Instead, “arms” includes “modern instruments that

33 Of course, the government may seek appellate review of this ruling,
giving the Fifth Circuit another opportunity to grapple with the post‐
Bruen landscape.
71
facilitate armed self‐defense.” Bruen, 142 S. Ct. at 2132 (empha‐
sis added).
Gun‐rights advocates have no doubt celebrated this defini‐
tion. The Second Amendment is second‐class no longer. It is
the brightest star in the Constitutional constellation.
But this expansive definition is puzzling. Many Americans
think about originalism in a different way. If Founding‐era
Americans knew what semi‐automatic weapons could do, some
say, surely they would have limited their availability. See, e.g.,
Christopher J. Peters, What Are Constitutional Rights for? The
Case of the Second Amendment, 68 Okla. L. Rev. 433, 459 (2016).
Nevertheless, in its recent Second Amendment cases, the
Court chose broad definitions over narrow ones. It construed
the text so expansively that we are still working to understand
its scope.
In breathing new life into the Second Amendment, though,
the Court has unintentionally revealed how it has suffocated
other fundamental Constitutional rights. Americans are wait‐
ing for Heller and Bruen’s reasoning to reach the rest of the
Constitution.
Consider the right to a “speedy” trial. U.S. Const. amend. VI.
The Supreme Court’s leading speedy trial case blessed a five‐
year delay between the defendant’s arrest and his trial. See
Barker v. Wingo, 407 U.S. 514, 533 (1972). But that doesn’t com‐
port with the historical understanding of a “speedy” trial—
which was apparently measured in months, not years. See
Klopfer v. North Carolina, 386 U.S. 213, 223‐24 (1967).34 Unless

34 No wonder “the Mississippi Supreme Court has not reversed a criminal
conviction for a speedy trial violation since 1992.” Patterson v. Hinds Cnty.,
Mississippi, No. 3:13‐CV‐432, 2016 WL 7177762, at *4 (S.D. Miss. June 10,
72
the Court takes the Bruen approach to the Sixth Amendment,
innocent Americans will continue to suffer in jail for years.
Consider the ancient right to a “Writ of Habeas Corpus.” U.S.
Const. art. I, § 9, cl. 2. The burden of securing habeas relief
falls upon the individual rather than the government, and Su‐
preme Court “holdings that speak only at a high level of gen‐
erality” cannot supply a ground for relief. Brown v. Davenport,
142 S. Ct. 1510, 1525 (2022). In habeas, rather, the law requires
“a more granular approach.” Russell v. Denmark, 68 F.4th 252,
272 (5th Cir. 2023). Until the Court applies expansive, Bruen‐
like definitions in this area of the law, the Great Writ will con‐
tinue to have second‐class status.
You might explain away the Court’s habeas caselaw as reflect‐
ing proper deference to the political branches,35 rather than a
result of the Justices’ choices. Until you compare the Court’s
treatment of habeas to its treatment of voting rights.
Despite not being enumerated in the Constitution, voting is a
“fundamental right.” Packingham v. North Carolina, 582 U.S.
98, 108 (2017). That is because voting is “preservative of all
rights.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667
(1966). Even before the twentieth century, the Supreme Court
professed as much. See Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886).

2016) (citations omitted). It faces no consequence for erasing this Consti‐
tutional right.
35 Congress and the President severely limited habeas relief in 1996, when
they enacted into law the Antiterrorism and Effective Death Penalty Act.
The Supreme Court had no problem with those restrictions. See Felker v.
Turpin, 518 U.S. 651 (1996).
73
Congress and the President took action to protect this right,
pursuant to their power under the Reconstruction Amend‐
ments, when they enacted the Voting Rights Act of 1965. The
political branches reauthorized that law for decades. The lat‐
est reauthorization unanimously passed the Senate in 2006.
President George W. Bush signed it into law.
The Supreme Court, however, found the reauthorization to be
unconstitutional. Congress’s factual findings were not suffi‐
ciently “updated” to pass muster. Shelby Cnty., Alabama v.
Holder, 570 U.S. 529, 557 (2013). If an individual tries to enforce
their fundamental right to vote, “they bear a heavy burden”
to prove the violation, Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 200 (2008), and they must define the scope of the
right “at a painfully high degree of specificity,” Bridges, 136
Harv. L. Rev. at 27.36 The blessings of Bruen have not passed
down to voting.
Perhaps the most glaring inconsistency is found when indi‐
viduals seek money damages for constitutional violations. In
marked contrast to its Second Amendment caselaw, the Court
places the burden to prove the constitutional violation on the
harmed individual. And again unlike the Second Amend‐
ment standard, when it comes to these disfavored rights, the
high Court expressly forbids us from defining the right “at a
high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015)
(quotation marks and citation omitted). Lower courts must in‐
stead “frame the constitutional question with specificity and

36 For example, because voter identification laws were not specifically
“used during the pre‐Civil Rights Era to injure people of color, . . . the
Roberts Court sees no racial injury in present‐day voter identification laws
that it is willing to remedy.” Bridges, 136 Harv. L. Rev. at 27. “The discov‐
ery of a resemblance is a matter of interpretation, after all.” Id. at 28.
74
granularity.” Morrow v. Meachum, 917 F.3d 870, 874‐75 (5th

Cir. 2019). The notion that we could treat these rights as we
treated the Second Amendment in Heller, McDonald, and
Bruen is altogether absent.
Maybe the Supreme Court is correct that in this country, to
“secure the Blessings of Liberty to ourselves and our Poster‐
ity,” the government should have the burden of justifying it‐
self when it deprives people of their constitutional rights. Per‐
haps the Court is also correct that constitutional rights should
be defined expansively. The Court just isn’t consistent about
it.
We have one Constitution. All of it is law. It has been enforced
today as best as this Judge can discern the Bruen Court’s hold‐
ing and reasoning. And, one hopes, a future Supreme Court
will not rest until it honors the rest of the Constitution as zeal‐
ously as it now interprets the Second Amendment.
B. Revisiting Originalism
Bruen shows us that originalism is now the Supreme Court’s
dominant mode of constitutional interpretation. This Court is
not so sure it should be.
For one, the originalist case for originalism is lacking. This
Court has yet to see evidence proving “that the original mean‐
ing of Article III of the Constitution included the understand‐
ing that courts should interpret the Constitution based on its
original meanings.” Erwin Chemerinsky, Worse than Noth‐
ing: The Dangerous Fallacy of Originalism 82 (2022) [herein‐
after Worse than Nothing]. In other words, it is not clear that
founding‐era Americans collectively agreed that for time im‐
memorial, their descendants would be bound by the founding
generation’s views on how the Constitution should be read.
75
This Court is also not sure that ceding this much power to the
dead hand of the past is so wise. “The American people
learned a great deal during the early years of their Republic—
including that many of their most cherished beliefs and firmly
held ideas were either wrong or unworkable.” Larry D. Kra‐
mer, The Supreme Court 2000 Term Foreword: We the Court, 115
Harv. L. Rev. 4, 12 (2001).37 The Framers themselves “knew
times can blind us to certain truths and later generations can
see that laws once thought necessary and proper in fact serve
only to oppress.” Lawrence v. Texas, 539 U.S. 558, 578‐79 (2003).
We have seen this evolution time and time again.
Many of our Nation’s finest moments came when we rejected
the original public meaning of a Constitutional provision.
Brown v. Board of Education rejected the original interpretation
of “equal protection,” which had led to “separate but equal”
schools. Worse than Nothing at 68‐69. The original understand‐
ing of the Fourteenth Amendment limited women “to fulfil
the noble and benign offices of wife and mother.” Bradwell v.
Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). It had
to go. Earlier Americans might not have understood the no‐
tion of “due process” to include marriage equality. See Ober‐
gefell v. Hodges, 576 U.S. 644 (2015). But future generations did.
“We changed.” Campaign for Southern Equality v. Bryant, 64 F.
Supp. 3d 906, 922 (S.D. Miss. 2014).
Hewing to outdated ideas no longer served “We the People.”
Hewing too closely to the past reduced our ability to make
America “more perfect.” As a result, “new constitutional

37 Dean Kramer wondered “why any sensible person, even a lawyer,
would privilege the speculative writings of the 1780s over the hard‐earned
experience of subsequent decades.” 115 Harv. L. Rev. at 12.
76
principles . . . emerged to meet the challenges of a changing
society.” Thurgood Marshall, Reflections on the Bicentennial of
the United States Constitution, 101 Harv. L. Rev. 1, 5 (1987). And
in this way, “the true miracle was not the birth of the Consti‐
tution, but its life, a life nurtured through two turbulent cen‐
turies of our own making, and a life embodying much good
fortune that was not.” Id.
Let’s be clear about what this means for originalism. The next
generation will have its own conceptions of liberty. It will in‐
terpret the principles of the Constitution, enduring as they
are, differently than this generation has interpreted them.
Change is unstoppable. And to the extent Bruen and decisions
like it try to stop that change, they will not last long. The only
question is how long the People will let them remain.
The motion to dismiss is granted. The Clerk of Court shall
close the case.
SO ORDERED, this the 28th day of June, 2023.
s/ CARLTON W. REEVES
United States District Judge
77

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Case 3:18-cr-00165-CWR-FKB Document 79 Filed 06/28/23 Page 1 of 77

The District Court rejected the plaintiffs’ arguments,

Amendment, rather than the Second Amendment, much of

the phrase “law‐abiding, responsible citizens”

matically and permanently disarms persons with felony convictions,

 Glenn Harlan Reynolds, A Critical Guide to the

the Reynolds piece demonstrates the tradition of disarma‐

Distortions, ScotusBlog (June 27, 2022). As demonstrated

Justice Barrett found dangerousness, rather than felony sta‐

Appellee, United States v. Staten, No. 10‐5318, 2011 WL

granularity.” Morrow v. Meachum, 917 F.3d 870, 874‐75 (5th

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