After New York State Rifle & Pistol Ass’n v. Bruen,1 § 922(g) challenges proliferate.2 Enacted as the “centerpiece”3 of the Gun Control Act of 1968,4 18 U.S.C. § 922(g) categorically bars certain classes of individuals from possessing firearms.5 In turn, the federal “background check system,”6 which prevents firearm sales to “prohibited persons,”7 primarily relies upon § 922(g)’s easily administrable categories to identify unlawful sales.8 The “felon-in-possession” ban, 18 U.S.C. § 922(g)(1), is considered the “cornerstone” of this federal system.9 After the Supreme Court’s decisions in Bruen and United States v. Rahimi,10 however, lawsuits challenging the felon-in-possession ban have multiplied nationwide, creating an emerging circuit split over the constitutionality of both § 922(g)(1)’s application to nonviolent felons11 and § 922(g)’s categorical disarmaments writ large.12 Recently, in United States v. Duarte,13 the en banc Ninth Circuit upheld the felon-in-possession ban as a categorical disarmament, constitutionally applicable to nonviolent felons under the Second Amendment.14 In affirming § 922(g)(1)’s categorical ban, however, the Ninth Circuit missed an opportunity to add a critical third question to Bruen and Rahimi’s required historical analogues for the “why” and “how” of firearm regulation — the “who”: That is, whom may the government categorically bar from firearm possession?
In September 2020, Steven Duarte was charged with “knowingly possessing a firearm” despite his previous nonviolent felony conviction, in violation of 18 U.S.C. § 922(g)(1).15 That provision prohibits any individual previously “convicted . . . of[] a crime punishable by imprisonment for a term exceeding one year” from “possess[ing] . . . any firearm.”16 Before a jury in the U.S. District Court for the Central District of California, Duarte was found guilty and sentenced to fifty-one months in prison.17 Duarte appealed.18
In the interim, the Supreme Court decided Bruen, effecting a “sea change” in Second Amendment jurisprudence.19 After Bruen, present-day firearms regulations must be “consistent with the Second Amendment’s text and historical understanding.”20 Despite some “confusion,”21 lower courts have generally operationalized Bruen’s analysis into two steps.22 At step one, courts determine whether conduct is presumptively protected by asking “whether the ‘Second Amendment’s plain text covers’ (1) the individual, (2) the type of arm, and (3) the [individual’s] ‘proposed . . . conduct.’”23 If so, the government bears the burden at step two of identifying a “well-established and representative historical analogue” that justifies a modern regulation.24 The Bruen Court refused to “provide an exhaustive survey of the features that render regulations relevantly similar” but offered two guideposts for lower courts: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”25
Following Bruen, Duarte introduced a Second Amendment challenge to his appeal, arguing that “§ 922(g)(1) [was] unconstitutional as applied to” nonviolent felons like him.26
A three-judge panel of the Ninth Circuit reversed and vacated Duarte’s conviction.27 Writing for the majority, Judge Bea28 held that Duarte had “good cause” to bring this argument on appeal, despite not introducing it pretrial, because Bruen had abrogated United States v. Vongxay,29 a prior Ninth Circuit decision that had previously “foreclosed” Duarte’s Second Amendment challenge.30 Under Bruen, the panel held § 922(g)(1) unconstitutional as applied to Duarte because the government’s proposed historical analogues for “‘how’ and ‘why’” were “not ‘distinctly similar’” to § 922(g)(1)’s categorical ban.31
Judge Smith dissented.32 He would have held that Vongxay continued to bind the panel because its holding was not “clearly irreconcilable” with Bruen.33
The government sought rehearing en banc, which the Ninth Circuit granted, vacating the panel’s opinion.34 Before the court sat for rehearing, the Supreme Court decided Rahimi.35 That decision “loosen[ed] [the] formalism” of Bruen36 by clarifying that the proper historical inquiry was “principles-based”37 — it did not require identifying “historical twin[s]” for modern regulations, but merely “consistent . . . principles . . . underpin[ning both] our regulatory tradition” and the law at issue.38
The en banc Ninth Circuit affirmed Duarte’s conviction.39 In an opinion written by Judge Wardlaw,40 the majority held § 922(g)(1)’s categorical application to nonviolent felons constitutional.41 Before reaching the merits, the majority assumed that de novo review was warranted under the “good cause” standard of Rule 12(c)(3) of the Federal Rules of Criminal Procedure.42 Citing a consistent thread of “assurances”43 from the Supreme Court on the constitutionality of felon-in-possession laws, the majority held that Vongxay had not been abrogated by either Bruen or Rahimi.44 Nevertheless, the majority applied “Bruen’s constitutional test to . . . confirm[] [its] reading.”45 After finding Bruen’s step one satisfied,46 the court turned to step two.47 Based on the methodological clarification in Rahimi,48 the majority identified two distinct “regulatory principles” within the country’s historical tradition of firearm regulation, either of which standing alone could justify § 922(g)(1).49
First, the majority recognized a greater-includes-the-lesser principle.50 Because felons could historically be sentenced “to capital punishment and estate forfeiture,”51 the majority concluded that “the lesser restriction of permanent disarmament [was] also permissible.”52 Duarte argued that this tradition was insufficient because his nonviolent felony convictions did not correspond to any Founding-era felonies.53 The majority, however, found it “consistent with our nation’s history” for the legislature to exercise discretion in determining what crimes were “serious [enough] . . . to punish perpetrators with severe deprivations of liberty,” including disarmament.54
Second, the majority identified a historical tradition permitting the legislature to disarm groups of individuals that it deems dangerous.55 While that tradition included laws “reflect[ing] . . . abhorrent prejudices that . . . other parts of the Constitution” would bar today, the principle was clear that legislatures could “categorically disarm those they deemed dangerous without . . . perform[ing] ‘an individualized determination of dangerousness.’”56 Because § 922(g)(1) sought to prevent the “special danger of misuse” of firearms that felons presented as a class, categorical disarmament was constitutional.57
Judge Nelson, concurring in the judgment, would have upheld Duarte’s conviction under a “plain error” standard without reaching the merits.58
Judge Collins separately concurred in the judgment.59 Writing for himself, he disagreed that “either” of the majority’s two identified principles “standing alone” was sufficient to uphold § 922(g)(1)’s application to nonviolent felons.60 Instead, he argued that the regulation could survive “only when these two historical traditions are ‘[t]aken together.’”61 While Judge Collins recognized “a tradition of categorical legislative disarmament,”62 he argued that “the eligible categories of . . . persons” whom Congress may categorically disarm “must themselves be historically based.”63 Thus, the government must present evidence of “historical precedent establishing that . . . [such] persons could categorically be subjected to . . . equivalent . . . or more onerous” penalties.64 Based on the historical evidence presented, Judge Collins concluded that the majority’s “greater-includes-the-lesser” principle ensured that § 922(g)(1)’s categorical disarmament of nonviolent felons fit within Congress’s “well-recognized (if limited) legislative power” to disarm dangerous groups.65
Judge VanDyke concurred in the judgment in part and dissented in part.66 In Part I, Judge VanDyke argued that the court should have upheld Duarte’s conviction on plain error review.67 Writing for himself, he then proceeded to dissent from the majority’s application of Bruen and Rahimi.68 First, he argued that the Supreme Court’s “assurances”69 as to felon-in-possession laws were mere “dicta.”70 He then argued that neither of the principles identified by the majority “satisf[ied] . . . the ‘how’ nor the ‘why’ of Bruen’s test”;71 instead, those analogues stood for the much narrower principle that the government may categorically disarm only groups “expected to take up arms against the government.”72
In upholding § 922(g)(1)’s felon-in-possession ban as a categorical disarmament, the Ninth Circuit exclusively focused on Bruen’s and Rahimi’s required historical analogues for the “why” and the “how” of a challenged firearm regulation. In doing so, the majority missed an opportunity to add a third metric — the “who.” Under this proposed test, courts should first ensure that modern regulations are consistent with historical principles for “how” (here, categorically disarming a class of individuals) and “why” (often, for perceived dangerousness73) the legislature may burden Second Amendment rights. If, however, the regulation only burdens a specific class of individuals, then the courts should also ensure that “who” is burdened shares a similar basis in the Second Amendment’s “historical understanding.”74 That is, courts should require evidence that legislatures were historically empowered to impose comparable burdens (the “how”), for comparable reasons (the “why”), on a comparable class of individuals (the “who”).75 Without such evidence, lower courts should hold that a legislature has exceeded its authority under the Second Amendment to render that class’s rights “defeasible.”76
As a starting matter, requiring a historical analogue for “who” is consistent with the test laid out in Bruen and applied in Rahimi. Many scholars agree that Rahimi reshaped the historical inquiry required after Bruen.77 Few, however, have noted that Rahimi enshrined two aspects of Bruen’s methodology popular in the lower courts78 — the required analogous principles for “[w]hy and how” the government regulates firearms.79 Yet the Court has never said that “how and why” should be the exclusive metrics along which to analyze modern regulations. In Bruen, the Court refused to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment.”80 And in Rahimi, the Court directed lower courts to “[d]iscern[] and develop[] the law”81 in determining “whether [a] new law is ‘relevantly similar’” to a permissible historical analogue.82 Taken together, these cases counsel lower courts to proactively identify the relevant features that render historic and modern regulations similar on a case-by-case basis.83
For § 922(g)’s categorical disarmaments, “who,” not “why,” is the feature along which Congress has regulated.84 By contrast, for the law at issue in Rahimi, § 922(g)(8)(C)(i), which only disarmed individuals after individualized determinations of dangerousness,85 the “how” (individual disarmament) and the “why” (because the individual posed a “credible threat”) were central components of the regulatory scheme.86 However, § 922(g)(8) is unique among the provisions of § 922(g) — it is the only provision that provides a clear legislative answer for “why,” for which courts can seek a historical analogue. The remaining provisions differentiate primarily based on “who,” not “why.”87 Lower courts thus should not feel shackled by Bruen’s “how and why,” but should accept the Court’s invitation to focus on the feature — “who” — that would render historical regulations relevantly similar to § 922(g)’s categorical disarmaments.
So far, however, lower courts have refused to take up that mantle. And in practice, the lower courts’ narrow focus on “how and why” has produced an exceedingly permissive and methodologically confused approach that has engendered a deepening circuit split.88
First, lower courts’ focus on “how and why” has produced an approach to categorical disarmaments that the Supreme Court is unlikely to adopt. To uphold § 922(g)(1), the majority in Duarte held that the legislature “could disarm on a categorical basis those who present a ‘special danger of misuse’ of firearms,”89 even if that specific “group” is not “rooted in history.”90 The Fourth and Eighth Circuits have adopted a similar approach.91 But, as the Duarte dissent noted, that approach could be used to uphold the disarmament of any group that a legislature deems dangerous.92 The Court is unlikely to adopt such a permissive stance.93 Just as the Bruen Court rejected the argument that a historical tradition of regulating “sensitive places” empowered modern legislatures to deem any site “sensitive,” the Court is unlikely to allow Congress to rely on a history of deeming certain groups “dangerous” to deem any group dangerous today.94 Instead, the Court is likely to “distinguish members of the different categories”95 by requiring “a tradition of disarming analogous groups”96 — that is, an analogue for “who.”
Second, relying on “how and why” has produced methodological confusion because the lower courts have not focused on the relevant feature — “who” — along which Congress has regulated. Two opinions in Duarte sought a historical analogue for “who” within their analyses of Bruen’s “how” and “why.”97 Judge Collins, in his concurrence, argued that the constitutionality of categorical disarmaments required that “the eligible categor[y]” — that is, who — “be historically based.”98 Judge Collins, however, would require that historical analogue “to satisfy [Bruen’s] ‘how’ requirement.”99 But requiring a historical basis for the class of persons regulated — the who — is a distinct inquiry from whether the legislature possesses the power to impose the challenged burden — the how. And in dissent, Judge VanDyke argued that because the majority’s historical analogues regulated different categories of people — a different who — “they were motivated by a different ‘why’” under Bruen.100 Yet this too elides important differences between the permissible classes of people the legislature can regulate — the who — and the permissible reasons for which the legislature can impose burdens — the why. By engaging in this distinct inquiry within the “how” and “why” prongs, the concurring and dissenting opinions papered over the methodological importance of their disagreement with the majority: whether a separate historical analogue was required for who could be disarmed by Congress.101
By explicitly requiring a historical analogue for “who,” courts could rectify that methodological confusion and more closely adhere to Bruen and Rahimi. Bruen instructed lower courts to identify “the features that render regulations relevantly similar under the Second Amendment.”102 To determine if § 922(g)’s group-by-group distinctions are constitutional, lower courts should identify principles within our regulatory tradition that differentiate in “relevantly similar” ways103 — namely by regulating a similar “who.”
In Duarte, the Ninth Circuit missed an opportunity to add “who” to Bruen’s and Rahimi’s “how and why.” And, in doing so, the Ninth Circuit sharpened a circuit split over the constitutionality of § 922(g)(1) and categorical disarmaments writ large.104