                                      PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
              ________________

              Nos. 14-4549 & 14-4550
                ________________


               DANIEL BINDERUP

                              Appellant (No. 14-4550)

                         v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;
   DIRECTOR BUREAU OF ALCOHOL TOBACCO
          FIREARMS & EXPLOSIVES

                              Appellants (No. 14-4549)

                 ________________

     Appeal from the United States District Court
        for the Eastern District of Pennsylvania
        (D.C. Civil Action No. 5-13-cv-06750)
    District Judge: Honorable James Knoll Gardner
                  ________________
                Nos. 15-1975 & 15-1976
                  ________________


                    JULIO SUAREZ

                                Appellant (No. 15-1976)

                           v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;
   DIRECTOR BUREAU OF ALCOHOL TOBACCO
          FIREARMS & EXPLOSIVES

                                Appellants (No. 15-1975)

                   ________________

       Appeal from the United States District Court
          for the Middle District of Pennsylvania
          (D.C. Civil Action No. 1-14-cv-00968)
      District Judge: Honorable William W. Caldwell
                    ________________

                  Argued June 1, 2016

   Before: McKEE, Chief Judge, AMBRO, FUENTES*,
 SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN,
     GREENAWAY, Jr., VANASKIE, SHWARTZ,

      *
       Judges Nygaard and Roth sat for the consolidated
argument but participated as members of the en banc Court




                           2
           KRAUSE, RESTREPO, NYGAARD*,
              and ROTH*, Circuit Judges

             (Opinion filed: September 7, 2016)

Benjamin C. Mizer, Esquire
  Principal Deputy Assistant Attorney General
Zane D. Memeger, Esquire
  United States Attorney
Mark B. Stern, Esquire
Michael S. Raab, Esquire
Patrick Nemeroff, Esquire (Argued)
Abby C. Wright, Esquire
United States Department of Justice, Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

      Counsel for Appellants/Cross-Appellees
      Attorney General United States of America;
      Director Bureau of Alcohol Tobacco Firearms &
      Explosives




only in Nos. 14-4549 and 14-4550 pursuant to 3d Cir. I.O.P.
9.6.4. Judge Sloviter participated in the panel argument and
conference in Nos. 15-1975 and 15-1976, but assumed
inactive status on April 4, 2016, before rehearing en banc and
the filing of this opinion. Judge Fuentes assumed senior status
on July 18, 2016, after rehearing en banc but before the filing
of this opinion.




                              3
Alan Gura, Esquire (Argued)
Gura & Possessky, PLLC
916 Prince Street, Suite 107
Alexandria, VA 22314

Douglas Gould, Esquire
925 Glenbrook Avenue
Bryn Mawr, PA 19010

       Counsel for Appellees/Cross-Appellants
       Daniel Binderup, Julio Suarez

Stefan B. Tahmassebi, Esquire
National Rifle Association of America
11250 Waples Mill Road
Fairfax, VA 22309

       Amicus Curiae Counsel
       National Rifle Association of America
                     ________________

                 OPINION OF THE COURT
                     ________________

AMBRO, Circuit Judge, announced the judgments of the
Court and delivered the opinion for a unanimous Court with
respect to Parts I and II, an opinion with respect to Parts III.A,
III.B, III.C.1, III.C.2, and III.C.3.a, in which FUENTES,
SMITH, GREENAWAY, Jr., VANASKIE, KRAUSE, and
ROTH, Circuit Judges, joined, and an opinion with respect to
Parts III.C.3.b, III.D, and IV, in which SMITH and
GREENAWAY, Jr., Circuit Judges, joined. FUENTES,
Circuit Judge, filed an opinion concurring in part, dissenting
in part, and dissenting from the judgments, in which McKEE,




                                4
Chief Judge, VANASKIE, SHWARTZ, KRAUSE,
RESTREPO, and ROTH, Circuit Judges, joined.
HARDIMAN, Circuit Judge, filed an opinion concurring in
part and concurring in the judgments, in which FISHER,
CHAGARES, JORDAN, and NYGAARD, Circuit Judges,
joined.


                         TABLE OF CONTENTS
I. Background ......................................................................... 7
II. The Challengers’ Statutory Argument............................. 10
III. The Challengers’ Constitutional Argument ................... 13

   A. The Second Amendment ............................................. 13
   B. The Framework for As-Applied Second Amendment
      Challenges.................................................................... 18
   C. Step One of the Marzzarella Framework .................... 22
       1. The Challengers Presumptively Lack Second
          Amendment Rights .................................................. 22
       2. The Traditional Justification for Denying Felons the
          Right to Arms .......................................................... 23
       3. The Challengers’ Circumstances .............................. 26
          a. Distinguishing the Historically Barred Class ....... 26
          b. Application to the Challengers ............................. 28
   D. Step Two of the Marzzarella Framework ................... 34
IV. Conclusion...................................................................... 40




                                           5
       Federal law generally prohibits the possession of
firearms by any person convicted in any court of a “crime
punishable by imprisonment for a term exceeding one year.”
18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any
State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of
two years or less.” Id. § 921(a)(20)(B). And there is also an
exemption for “[a]ny conviction which has been expunged, or
set aside or for which a person has been pardoned or has had
civil rights restored,” where the grant of relief does not
expressly preserve the firearms bar. Id. § 921(a)(20).

       In United States v. Marzzarella we adopted a
framework for deciding facial and as-applied Second
Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in
United States v. Barton we held that the prohibition of
§ 922(g)(1) does not violate the Second Amendment on its
face, but we stated that it remains subject to as-applied
constitutional challenges. 633 F.3d 168 (3d Cir. 2011).
       Before us are two such challenges. In deciding them,
we determine how a criminal law offender may rebut the
presumption that he lacks Second Amendment rights. In
particular, a majority of the Court concludes that Marzzarella,
whose two-step test we reaffirm today, drives the analysis.1

       1
           Parts III.A–C.3.a preserve the Marzzarella
framework for deciding Second Amendment challenges and
overrule aspects of Barton that are inconsistent with it. Seven
Judges join those Parts expressly. Chief Judge McKee and
Judges Shwartz and Restrepo, who join Judge Fuentes’s
opinion, agree that Marzzarella controls the Second
Amendment analysis, but do not join any of Part III because
they reject the notion that the Marzzarella framework can be




                              6
Meanwhile, a separate majority holds that the two as-applied
challenges before us succeed. Part IV of this opinion sets out
how, for purposes of future cases, to make sense of our
fractured vote.
                       I. Background
        In 1996 Daniel Binderup began a consensual sexual
relationship with a 17-year-old female employee at his
bakery. Binderup was 41 years old at the time and was aware
that his employee was a minor, though she was over the legal
age of consent in Pennsylvania (16). Two years later,
Binderup pled guilty in a Pennsylvania state court to
corrupting a minor, a misdemeanor subject to possible
imprisonment for up to five years. 18 Pa. Cons. Stat.
§§ 6301(a)(1)(i), 1104. Despite this, Binderup’s sentence was
the colloquial slap on the wrist: probation (three years) and a
$300 fine plus court costs and restitution. His criminal record
shows no subsequent offenses.

       In 1990 police stopped Julio Suarez on suspicion of
driving while intoxicated. During the stop, police noticed that
Suarez was carrying a .357 Magnum handgun, as well as two
“speed loaders” (devices that allow one to load all chambers
of a revolver mechanically rather than inserting bullets one-
by-one). He had no permit for the gun. He later pled guilty in
a Maryland state court to unlawfully carrying a handgun
without a license, a misdemeanor subject to possible
imprisonment for “not less than 30 days and not [more than]
three years or a fine of not less than $250 and not [more than]
$2,500 or both.” Md. Code Ann. art. 27, § 36B(b) (1990)
(now codified at Md. Code Ann. Crim. Law § 4-203). Suarez

reconciled with any aspect of Barton’s as-applied Second
Amendment analysis, which they would overrule entirely.




                              7
nonetheless received a suspended sentence of 180 days’
imprisonment and a $500 fine, followed by a year of
probation that he completed successfully. Eight years later, he
was convicted again in a Maryland state court, this time for
the state-law misdemeanor of driving under the influence of
alcohol. Only the first of the convictions was subject to
§ 922(g)(1). Suarez now lives in Pennsylvania and since 1998
has led a life free of run-ins with the law. He holds a “Secret”
federal government security clearance in connection with his
job as a consultant for a government contractor.
       Pennsylvania law disqualified Binderup and Suarez
(collectively, the “Challengers”) from possessing firearms
due to their convictions, but in 2009 they successfully
petitioned the Pennsylvania courts to remove that prohibition.
Federal law, however, continues to bar them from possessing
firearms because their convictions have not been expunged or
set aside, they have not been pardoned, and their civil rights
have not been restored. See 18 U.S.C. § 921(a)(20); Logan v.
United States, 552 U.S. 23, 37 (2007). Nor has the Attorney
General granted them relief under 18 U.S.C. § 925(c), which
allows her to remove the prohibition on a case-by-case basis
“if it is established to [her] satisfaction” that a barred
individual “will not be likely to act in a manner dangerous to
public safety and that the granting of the relief would not be
contrary to the public interest.”
       Binderup and Suarez want to obtain guns to defend
themselves and their families within their homes, but they
have not attempted to do so for fear of violating § 922(g)(1).
As a result, each filed a complaint in federal District Court
(Binderup in the Eastern District of Pennsylvania, Suarez in
the Middle District of Pennsylvania) seeking declaratory and
injunctive relief. They claim as a matter of statutory
construction that § 922(g)(1) does not apply to their
convictions and, if it does, the statute is unconstitutional as




                               8
applied. The Government opposed the lawsuits, and the
parties in both cases filed cross-motions for summary
judgment.
        The District Courts rejected the Challengers’ statutory
argument but held that § 922(g)(1) is unconstitutional as
applied. The United States District Court for the Eastern
District of Pennsylvania ruled that § 922(g)(1) is
unconstitutional as applied to Binderup because he
“distinguishe[d] himself from those individuals traditionally
disarmed as the result of prior criminal conduct and
demonstrate[d] that he poses no greater threat of future
violent criminal activity than the average law-abiding
citizen.” Binderup v. Holder, No. 13-cv-6750, 2014 WL
4764424, at *1 (E.D. Pa. Sept. 25, 2014). The Court did not
analyze the constitutionality of § 922(g)(1) under any form of
means-ends scrutiny, meaning it did not evaluate the law to
assess whether its purpose—the end sought—matches
appropriately the means chosen to achieve it. Id. at *20–21.
Depending on the importance of the rights involved and the
nature of the burden on them, a law’s purpose may need to be
only legitimate and the means to achieve it rational (called
rational basis scrutiny); the purpose may need to be important
and the means to achieve it substantially related (called
intermediate scrutiny); or the purpose may need to be
compelling and the means to achieve it narrowly tailored, that
is, the least restrictive (called strict scrutiny). The latter two
tests we refer to collectively as heightened scrutiny to
distinguish them from the easily met rational basis test.
       The United States District Court for the Middle
District of Pennsylvania applied “a two[-]prong test for
Second Amendment challenges” derived from our case law.
Suarez v. Holder, --- F. Supp. 3d ----, No. 1:14-CV-968, 2015
WL 685889, at *6–7 (M.D. Pa. Feb. 18, 2015). It found first
that Suarez has Second Amendment rights notwithstanding




                                9
his 1990 conviction because he demonstrated that “he is no
more dangerous than a typical law-abiding citizen.” Id. at
*10. Then the Court applied means-ends scrutiny (in that
case, strict scrutiny) and determined that § 922(g)(1) is
unconstitutional as applied to him due to the severity of the
burden it imposes. Id. at *7 & n.9.
       The Government appealed the summary judgments,
and the Challengers’ cross-appealed the District Courts’
interpretations of the dispossession statute. The District
Courts had jurisdiction under 28 U.S.C. §§ 1331, 1343, 1346,
2201, and 2202. We have appellate jurisdiction under 28
U.S.C. § 1292(a)(1).
       Separate panels heard the appeals, and the Court sua
sponte consolidated them for rehearing en banc. Our review
is plenary. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144,
158 (3d Cir. 2003).
        II. The Challengers’ Statutory Argument

       Section 922(g)(1), as noted, does not cover state
misdemeanors “punishable by a term of imprisonment of two
years or less.” 18 U.S.C. § 921(a)(20)(B). The Challengers
argue that the exception includes any state misdemeanor that,
like theirs, could have been punished by less than two years’
imprisonment.

       We disagree. The exception in § 921(a)(20)(B) covers
any crime that cannot be punished by more than two years’
imprisonment. It does not cover any crime that can be
punished by more than two years in prison. In other words,
§ 921(a)(20)(B)’s use of “punishable by” means “subject to a
maximum penalty of.” Although we have never explicitly
defined it this way, we have at least twice relied on that
understanding in interpreting the relationship between




                             10
§ 921(a)(20)(B) and § 922(g)(1). See United States v. Essig,
10 F.3d 968, 969–71 (3d Cir. 1993) (relying on an
understanding of “punishable” that refers to whether the
maximum potential sentence for a state misdemeanor exceeds
two years, not whether a lesser sentence might be imposed);
United States v. Schoolcraft, 879 F.2d 64, 69–70 (3d Cir.
1989) (explaining that a “misdemeanor punishable [by] up to
seven years in prison” was “not a misdemeanor subject to a
sentence of two years or less”). The D.C. Circuit’s opinion in
Schrader v. Holder supports our decision, as it distinguishes
crimes carrying a maximum term of imprisonment of more
than two years from those “punishable by a term of
imprisonment of two years or less” under § 921(a)(20)(B).
704 F.3d 980, 986 (D.C. Cir. 2013). And the Supreme Court
drew a similar distinction in Logan. See 552 U.S. at 34
(“[Section] 921(a)(20)(B) . . . places within [§ 922(g)(1)’s]
reach state misdemeanor convictions punishable by more than
two years’ imprisonment.” (emphasis added)). Although this
language is a dictum, “we should not idly ignore” its inclusion
in the Supreme Court’s thorough discussion of
§ 921(a)(20)(B). In re McDonald, 205 F.3d 606, 612 (3d Cir.
2000).
       Even if we were writing on a blank slate, we would
reject the Challengers’ interpretation. When considering a
crime’s potential punishment, we ordinarily refer only to the
maximum punishment a court may impose. As the District
Court in Suarez perceptively observed, when a crime has
maximum and minimum possible punishments, we describe it
as being “punishable” by that specific range; and when a
crime references only a maximum punishment, “we ordinarily
identify only the upper boundary” of that range, as “[a]ll
lower possible terms of imprisonment are included by
implication.” 2015 WL 685889, at *3. That is why we would
not describe a crime carrying a specified term of
imprisonment of up to three years as one “punishable by a




                              11
term of imprisonment of two years or less.” By contrast, a
misdemeanor carrying a ceiling of 18 months’ imprisonment
would properly be described in the criminal law context as a
crime “punishable by a term of imprisonment of two years or
less” and on its face would not trigger the bar on gun
possession. Accordingly, “subject to a maximum possible
penalty of” is the best reading of the phrase “punishable by”
as used in § 921(a)(20)(B).

        Our interpretation also makes sense in light of similar
language in the United States Sentencing Guidelines. They
provide three distinct grades of probation and supervised
release violations—Grades A, B, and C—with Grade A
violations treated most severely and Grade C least severely.
See U.S.S.G. §§ 7B1.1(a), 7B1.4(a). The Challengers’
interpretation of the phrase “punishable by” would erode
those distinctions. Since Grade C applies only to offenses
“punishable by a term of imprisonment of one year or less,”
U.S.S.G. § 7B1.1(a)(3), the Challengers’ interpretation would
render offenses punishable by more than a year (Grade B), as
well as even more serious offenses described as Grade A,
eligible for Grade C treatment. This would be an absurd
result.
       In a last-ditch effort, the Challengers argue that
§ 921(a)(20)(B)’s use of “punishable” merits application of
the rule of lenity (that ambiguous criminal laws be construed
in favor of defendants) or the constitutional avoidance
doctrine (that ambiguous statutory language be construed to
avoid serious constitutional doubts). Both of these principles
require ambiguity in the statute. See Voisine v. United States,
579 U.S. ___, 136 S. Ct. 2272, 2282 n.6 (2016). As there isn’t
any here, they give no plausible defense.
      In sum, the Challengers’ argument that their
convictions fall within § 921(a)(20)(B)’s exception to




                              12
§ 922(g)(1) has no traction. Their misdemeanor convictions
were punishable by more than two years’ imprisonment.
Hence they cannot seek refuge in § 921(a)(20)(B) and are
subject to the bar of § 922(g)(1).
      III. The Challengers’ Constitutional Argument

       A. The Second Amendment
        The Challengers contend that, notwithstanding how we
rule on their statutory argument, § 922(g)(1) is
unconstitutional as applied to them. The Second Amendment
states: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. Const. amend. II. In
District of Columbia v. Heller, the Supreme Court invalidated
a law that “totally ban[ned] handgun possession in the home”
and “require[d] that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times,
rendering it inoperable.” 554 U.S. 570, 628 (2008). In so
doing, the Court held the Second Amendment protects an
individual’s right to possess a firearm “unconnected with
militia service.” Id. at 582. At the “core” of the Second
Amendment is the right of “law-abiding, responsible citizens
to use arms in defense of hearth and home.” Id. at 634–35;
Barton, 633 F.3d at 170–71; Marzzarella, 614 F.3d at 89.
Two years after Heller, in McDonald v. City of Chicago, the
Court held that the Fourteenth Amendment “incorporates the
Second Amendment right recognized in Heller” because the
right is “fundamental” to “our system of ordered liberty.” 561
U.S. 742, 778, 791 (2010).
       Although the Second Amendment guarantees an
individual right, it is “not unlimited.” Heller, 554 U.S. at 626;
see United States v. Huitron-Guizar, 678 F.3d 1164, 1166
(10th Cir. 2012); Eugene Volokh, Implementing the Right to




                               13
Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. Rev. 1443,
1443 (2009).2 Heller catalogued a non-exhaustive list of
“presumptively lawful regulatory measures” that have
historically constrained the scope of the right. 554 U.S. at
626–27 & n.26; see Marzzarella, 614 F.3d at 91 (treating the
“presumptively lawful regulatory measures” listed in Heller
as “exceptions to the right to bear arms”). They include, but
are not limited to, “longstanding 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 buildings, [and] laws imposing
conditions and qualifications on the commercial sale of
arms.” Heller, 554 U.S. at 626–27; see McDonald, 561 U.S.
at 786. These measures comport with the Second Amendment

       2
          Professor Volokh’s taxonomy of possible gun
regulations divides them into

       [(1)]“what” restrictions (such as bans on machine
       guns, so-called “assault weapons,” or unpersonalized
       handguns), [(2)] “who” restrictions (such as bans on
       possession by felons, misdemeanants, noncitizens, or
       [juveniles]), [(3)] “where” restrictions (such as bans on
       carrying in public, in places that serve alcohol, or in
       parks, or bans on possessing [guns] in public housing
       projects), [(4)] “how” restrictions (such as storage
       regulations), [(5)] “when” restrictions (such as waiting
       periods), [(6)] “who knows” regulations (such as
       licensing or registration requirements), and [(7)] taxes
       and other expenses.

Volokh, 56 UCLA L. Rev. at 1443.




                              14
because they affect individuals or conduct unprotected by the
right to keep and bear arms. See Heller, 554 U.S. at 631, 635
(suggesting that one is “disqualified from the exercise of
Second Amendment rights” if he is “a felon” or “insane”).
For example, bans on “weapons not typically possessed by
law-abiding citizens for lawful purposes, such as short-
barreled shotguns,” are permissible because those weapons
fall outside the historical “scope of the right.” Id. at 625; see
United States v. One (1) Palmetto State Armory PA-15
Machinegun Receiver/Frame, Unknown Caliber Serial No.
LW001804, 822 F.3d 136, 141–44 (3d Cir. 2016);
Marzzarella, 614 F.3d at 91–93.
       As to cases involving burdens on Second Amendment
rights, Heller did not announce which level of scrutiny
applies but cautioned that challenges based on those rights are
not beaten back by the Government supplying a rational basis
for limiting them. 554 U.S. at 628 n.27 (“If all that was
required to overcome the right to keep and bear arms was a
rational basis, the Second Amendment would be redundant
with the separate constitutional prohibitions on irrational
laws, and would have no effect.”).
       Some judges—including Judge Hardiman and those
colleagues who join his opinion concurring in the
judgments—and commentators have interpreted Heller to
mean that any law barring persons with Second Amendment
rights from possessing lawful firearms in the home even for
self-defense is per se unconstitutional; that is, no scrutiny is
needed. See Hardiman Op. Typescript at 13–19; Heller v.
District of Columbia, 670 F.3d 1244, 1272–73 (D.C. Cir.
2011) (Kavanaugh, J., dissenting); Volokh, 56 UCLA L. Rev.
at 1462; Joseph Blocher, Categoricalism and Balancing in
First and Second Amendment Analysis, 84 N.Y.U. L. Rev.
375, 377, 380 (2009); see also United States v. McCane, 573
F.3d 1037, 1047–50 (10th Cir. 2009) (Tymkovich, J.,




                               15
concurring). But neither the Supreme Court nor any court of
appeals has held that laws burdening Second Amendment
rights evade constitutional scrutiny. Rather, when faced with
an as-applied Second Amendment challenge, they agree that
some form of heightened scrutiny is appropriate after it has
been determined that the law in question burdens protected
conduct. See, e.g., Marzzarella, 614 F.3d at 97–101 (applying
intermediate scrutiny and, in the alternative, strict scrutiny to
§ 922(k)’s prohibition on possession of any firearm with a
destroyed serial number); United States v. Williams, 616 F.3d
685, 692–93 (7th Cir. 2010) (applying intermediate scrutiny
to § 922(g)(1)); United States v. Chovan, 735 F.3d 1127,
1141–42 (9th Cir. 2013) (same with respect to § 922(g)(9)’s
disarmament of a domestic-violence misdemeanant); United
States v. Chester, 628 F.3d 673, 682–83 (4th Cir. 2010)
(same); United States v. Reese, 627 F.3d 792, 802–05 (10th
Cir. 2010) (same with respect to § 922(g)(8)’s dispossession
of certain persons subject to a domestic restraining order);
Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308, 326–29
(6th Cir. 2014) (applying strict scrutiny to § 922(g)(4)’s
dispossession of any person “who has been committed to a
mental institution”), reh’g en banc granted, opinion vacated
(Apr. 21, 2015).

        That individuals with Second Amendment rights may
nonetheless be denied possession of a firearm is hardly
illogical. It is no different than saying that the Government
may prevent an individual with First Amendment rights from
engaging in First Amendment conduct—even conduct at the
core of the First Amendment—if it makes the showing
necessary to surmount heightened scrutiny. See, e.g., FEC v.
Wis. Right to Life, 551 U.S. 449, 464–65 (2007) (applying
strict scrutiny to a statute prohibiting political speech at the
core of the First Amendment); United Pub. Workers of Am. v.
Mitchell, 330 U.S. 75, 102–03 (1947) (upholding the
constitutionality of prohibitions on certain political activities




                               16
by federal employees notwithstanding the First Amendment).
Thus burdens on Second Amendment rights are subject to
scrutiny in much the way that burdens on First Amendment
rights are. Drake v. Filko, 724 F.3d 426, 434–36 (3d Cir.
2013); see NRA Amicus Br. at 13–15 (asserting that burdens
on core Second Amendment rights should be subject to strict
scrutiny). Far from subjecting the Second Amendment to an
“entirely different body of rules than the other Bill of Rights
guarantees,” McDonald, 561 U.S. at 780 (plurality opinion),
this view uses “the structure of First Amendment doctrine [to]
inform our analysis of the Second Amendment,” Marzzarella,
614 F.3d at 89 n.4; see id. (“Heller itself repeatedly invokes
the First Amendment in establishing principles governing the
Second Amendment.”).

       Even if a law that “completely eviscerates the Second
Amendment right” would be per se unconstitutional under
Heller, Hardiman Op. Typescript at 18, § 922(g)(1) is no such
law. Notwithstanding that provision (and as already noted),
persons convicted of disqualifying offenses may under some
circumstances possess handguns if (1) their convictions are
expunged or set aside, (2) they receive pardons, or (3) they
have their civil rights restored. 18 U.S.C. § 921(a)(20). And
were Congress to fund 18 U.S.C. § 925(c), they could ask the
Attorney General to lift the ban in their particular cases.
Though some of these statutory avenues for relief are closed
to Binderup and Suarez, see infra Part III.D, the remaining
opportunities for them to overcome the ban contrast starkly
with the District of Columbia law in Heller that made it a
crime to carry an unregistered firearm and prohibited entirely
the registration of handguns by individuals; there was nothing
Mr. Heller could do to possess a handgun lawfully while
outside his job as a District of Columbia special police officer
guarding the Federal Judicial Center (in other words, he
guarded judges). See 554 U.S. at 574 (citing D.C. Code §§ 7-
2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001)); Parker




                              17
v. District of Columbia, 478 F.3d 370, 373–74 (D.C. Cir.
2007); cf. United States v. Skoien, 614 F.3d 638, 645 (7th Cir.
2010) (en banc) (noting that disarmament under § 922(g)(9) is
ordinarily not “perpetual” because of exceptions similar to
those under § 922(g)(1)); Chovan, 735 F.3d at 1138 (same).

       To say that § 922(g)(1) is per se unconstitutional as
applied to anyone with Second Amendment rights
notwithstanding the statute’s escape hatches is a bridge too
far. For starters, that would condemn without exception all
laws and regulations containing preconditions for the
possession of firearms by individuals with Second
Amendment rights. By that reasoning, any law prohibiting an
individual from possessing a handgun unless he passes a
physical examination (to show he is capable of handling a
firearm safely) or completes firearm training (to show he
knows how to handle a firearm safely) would similarly be per
se unconstitutional, even if it is the least restrictive means of
achieving a compelling government interest. There is no
precedent for crippling the Government’s ability to regulate
gun ownership in this manner. And to guarantee absolutely
the ability to keep and bear arms even in cases where
disarmament would survive heightened scrutiny would be a
radical departure from our post-Heller jurisprudence and risk
undermining many commonplace constitutional gun
regulations.
       B. The Framework for As-Applied Second
          Amendment Challenges
       Unlike a facial challenge, an as-applied challenge
“does not contend that a law is unconstitutional as written but
that its application to a particular person under particular
circumstances deprived that person of a constitutional right.”
United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011)
(quoting United States v. Marcavage, 609 F.3d 264, 273 (3d




                               18
Cir. 2010)); see Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 329 (2006) (“It is axiomatic that a
statute may be invalid as applied to one state of facts and yet
valid as applied to another.” (internal quotation marks
omitted)). Accordingly, our review of Binderup’s and
Suarez’s as-applied challenges requires us to consider
whether their particular circumstances remove them from the
constitutional sweep of § 922(g)(1).

        Two of our precedents—Marzzarella and Barton—
have guided how we approach as-applied Second Amendment
challenges. The former involved an as-applied challenge to 18
U.S.C. § 922(k), which bars the possession of any firearm
with an obliterated serial number. It derived from Heller a
“two-pronged approach to Second Amendment challenges” to
firearm restrictions. 614 F.3d at 89. We first consider
“whether the challenged law imposes a burden on conduct
falling within the scope of the Second Amendment’s
guarantee.” Id. If not, the challenged law must stand. But if
the law burdens protected conduct, the proper course is to
“evaluate the law under some form of means-end scrutiny,”
id., that form in Marzzarella being intermediate scrutiny, id.
at 97. “If the law passes muster under [the] standard
[applied], it is constitutional. If it fails, it is invalid.” Id. at 89.
As to § 922(k), we held that the law withstood intermediate
scrutiny “even if it burden[ed] protected conduct” by fitting
reasonably with the important “law enforcement interest in
enabling the tracing of weapons via their serial numbers.” Id.
at 95, 98. (We also noted in a dictum that the law would
survive strict scrutiny, were that the test, because the
provision serves a compelling interest through the least-
restrictive means. Id. at 99–101.)
      Nearly every court of appeals has cited Marzzarella
favorably. See, e.g., N.Y. State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 254 n.49 (2d Cir. 2015); Chovan, 735




                                  19
F.3d at 1136–37; Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185,
194–96 (5th Cir. 2012); GeorgiaCarry.org, Inc. v. Georgia,
687 F.3d 1244, 1260 n.34 (11th Cir. 2012); United States v.
Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller, 670 F.3d
at 1252–53; Ezell v. City of Chicago, 651 F.3d 684, 701–04
(7th Cir. 2011); Chester, 628 F.3d at 680–83; Reese, 627 F.3d
at 800–05. Indeed, it has escaped disparagement by any
circuit court.
        A year after Marzzarella we decided Barton, which
involved a felon convicted under the provision now before
us—§ 922(g)(1). Barton raised facial and as-applied Second
Amendment challenges to the firearm ban. After dispensing
with his facial challenge and confirming the availability of as-
applied challenges under the Second Amendment, we ruled
that “the common law right to keep and bear arms did not
extend to those who were likely to commit violent offenses.”
633 F.3d at 173. Because Barton’s prior convictions for
possession of cocaine with intent to distribute and for receipt
of a stolen firearm (as well as his illegal post-conviction sale
of a firearm with an obliterated serial number) were “closely
related to violent crime,” we concluded that he lacked Second
Amendment rights. Id. at 174. Put another way, Barton did
not present “facts about himself and his background that
distinguish[ed] his circumstances from those of persons
historically barred from Second Amendment protections,” id.,
so he was “disqualified from the exercise of Second
Amendment rights,” id. at 174 (quoting Heller, 554 U.S. at
635), and his as-applied challenge could not succeed.
       Read together, Marzzarella and Barton lay out a
framework for deciding as-applied challenges to gun
regulations. At step one of the Marzzarella decision tree, a
challenger must prove, per Barton, that a presumptively
lawful regulation burdens his Second Amendment rights. This




                              20
requires a challenger to clear two hurdles: he must (1)
identify the traditional justifications for excluding from
Second Amendment protections the class of which he appears
to be a member, id. at 173, and then (2) present facts about
himself and his background that distinguish his circumstances
from those of persons in the historically barred class, id. at
174.
        No doubt a challenger cannot prevail merely on his
say-so. Courts must find the facts to determine whether he has
adequately distinguished his circumstances from those of
persons historically excluded from Second Amendment
protections. Not only is the burden on the challenger to rebut
the presumptive lawfulness of the exclusion at Marzzarella’s
step one, but the challenger’s showing must also be strong.
That’s no small task. And in cases where a statute by its terms
only burdens matters (e.g., individuals, conduct, or weapons)
outside the scope of the right to arms, it is an impossible one.
But if the challenger succeeds at step one, the burden shifts to
the Government to demonstrate that the regulation satisfies
some form of heightened scrutiny, discussed further below, at
step two of the Marzzarella analysis.
       The Challengers, the District Court in Binderup, and
some of our colleagues claim that Marzzarella and Barton set
standards for different types of as-applied Second
Amendment challenges and that only Barton controls
challenges to § 922(g)(1); Marzzarella has no role in the
analysis. Our view is that, at least in pertinent part, each
complements the other for an as-applied Second Amendment
challenge to a presumptively lawful regulatory measure like
§ 922(g)(1). Barton identifies the two hurdles that an
individual presumed to lack Second Amendment rights must
overcome to rebut the presumption at step one of the




                              21
Marzzarella framework.3 Rebutting it permits testing the law
or regulation under heightened scrutiny at step two. With this
understanding, Marzzarella and Barton are neither wholly
distinct nor incompatible.
       C. Step One of the Marzzarella Framework
              1. The Challengers Presumptively Lack Second
                 Amendment Rights
       Heller teaches that “longstanding prohibitions on the
possession of firearms by felons” are “presumptively lawful.”
554 U.S. at 626 & 627 n.26. Traditionally, “felons” are
people who have been convicted of any crime “that is
punishable by death or imprisonment for more than one
year.” 1 Wayne R. LaFave, Substantive Criminal Law § 1.6
(2d ed. 2015); cf. Carachuri-Rosendo v. Holder, 560 U.S.
563, 567 (2010) (quoting 18 U.S.C. § 3559(a)).
      Section 922(g)(1) bars the possession of firearms by
anyone convicted of “a crime punishable by imprisonment for
a term exceeding one year.” This means that its prohibition
extends to anyone convicted of a crime meeting the

       3
            Though Barton clarifies the types of showings that a
challenger must make at step one of the Marzzarella
framework, it defines too narrowly the traditional justification
for why a criminal conviction may destroy the right to arms
(i.e., it limits felon disarmament to only those criminals likely
to commit a violent crime in the future) and, by extension,
defines too broadly the class of offenders who may bring
successful as-applied Second Amendment challenges to
§ 922(g)(1) (i.e., it allows people convicted of serious crimes
to regain their right to arms). See infra Parts III.C.1–3.a.




                               22
traditional definition of a felony, though Congress excluded
anyone convicted of a “State offense classified by the laws of
the State as a misdemeanor” unless it is punishable by more
than two years’ imprisonment. 18 U.S.C. § 921(a)(20)(B).
        Binderup and Suarez were each convicted of a
misdemeanor subject to § 922(g)(1): Binderup’s was
punishable by up to five years’ imprisonment; Suarez’s by up
to three years in prison. The Pennsylvania and Maryland
legislatures classify their respective offenses as
misdemeanors. However, based on their maximum possible
punishments, they meet the traditional definition of a felony,
and Congress treats them as felonies for purposes of
§ 922(g)(1). As a result, Binderup and Suarez are subject to a
firearm ban that is, per Heller, “presumptively lawful.”

             2. The Traditional Justification for Denying
                Felons the Right to Arms
       Turning to the first hurdle of step one, we look to the
historical justification for stripping felons, including those
convicted of offenses meeting the traditional definition of a
felony, of their Second Amendment rights. “[M]ost scholars
of the Second Amendment agree that the right to bear arms
was tied to the concept of a virtuous citizenry and that,
accordingly, the government could disarm ‘unvirtuous
citizens.’” United States v. Yancey, 621 F.3d 681, 684–85
(7th Cir. 2010); see, e.g., Saul Cornell & Nathan DeDino, A
Well Regulated Right: The Early American Origins of Gun
Control, 73 Fordham L. Rev. 487, 491–92 (2004); Saul
Cornell, “Don’t Know Much about History”: The Current
Crisis in Second Amendment Scholarship, 29 N. Ky. L Rev.
657, 679 (2002); David Yassky, The Second Amendment:
Structure, History, and Constitutional Change, 99 Mich. L.
Rev. 588, 626–27 (2000); Glenn Harlan Reynolds, A Critical
Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480




                             23
(1995); Don B. Kates, Jr., The Second Amendment: A
Dialogue, Law & Contemp. Probs., Winter 1986, at 143, 146;
Don B. Kates, Jr., Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204,
266 (1983). Several of our sister circuits endorse the
“virtuous citizen” justification for excluding felons and felon-
equivalents from the Second Amendment’s ambit. See, e.g.,
United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir.
2012) (“[F]elons were excluded from the right to arms
because they were deemed unvirtuous.” (internal quotation
marks omitted)); Yancey, 621 F.3d at 684–85; United States
v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (“[T]he right
to bear arms does not preclude laws disarming . . . unvirtuous
citizens (i.e., criminals).” (quoting Kates, Jr., 49 Law &
Contemp Probs. at 146)); United States v. Rene E., 583 F.3d
8, 15 (1st Cir. 2009) (“In the parlance of the republican
politics of the time, these limitations were sometimes
expressed as efforts to disarm the ‘unvirtuous.’”).
        People who have committed or are likely to commit
“violent offenses”—crimes “in which violence (actual or
attempted) is an element of the offense,” Skoien, 614 F.3d at
642; see Voisine, 136 S. Ct. at 2280—undoubtedly qualify as
“unvirtuous citizens” who lack Second Amendment rights.
Barton, 633 F.3d at 173–74; see United States v. Bena, 664
F.3d 1180, 1184 (8th Cir. 2011) (recognizing “a common-law
tradition that the right to bear arms is limited to peaceable or
virtuous citizens”); C. Kevin Marshall, Why Can’t Martha
Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 727–
28 (2009). But Heller recognized “longstanding prohibitions
on the possession of firearms by felons,” not just violent
felons. 554 U.S. at 626. The category of “unvirtuous citizens”
is thus broader than violent criminals; it covers any person
who has committed a serious criminal offense, violent or non-
violent. See Skoien, 614 F.3d at 640–41; United States v.
Everist, 368 F.3d 517, 519 (5th Cir. 2004); Don B. Kates &




                              24
Clayton E. Cramer, Second Amendment Limitations &
Criminological Considerations, 60 Hastings L.J. 1339, 1363–
64 (2009); see also Vongxay, 594 F.3d at 1115 (“[F]elons are
categorically different from the individuals who have a
fundamental right to bear arms.”). To the extent Barton
suggests that people who commit serious crimes retain or
regain their Second Amendment rights if they are not likely to
commit a violent crime, 633 F.3d at 174, it is overruled. See
infra Part III.C.3.a.
       The view that anyone who commits a serious crime
loses the right to keep and bear arms dates back to our
founding era. “Heller identified . . . as a ‘highly influential’
‘precursor’ to the Second Amendment the Address and
Reasons of Dissent of the Minority of the Convention of the
State of Pennsylvania to Their Constituents.” Skoien, 614
F.3d at 640 (quoting Heller, 554 U.S. at 604). That report
“asserted that citizens have a personal right to bear arms
‘unless for crimes committed, or real danger of public
injury.’” Id. (emphasis added) (quoting 2 Bernard Schwartz,
The Bill of Rights: A Documentary History 662, 665 (1971)).
“[C]rimes committed”—violent or not—were thus an
independent ground for exclusion from the right to keep and
bear arms. And there is reason to believe that felon
disarmament has roots that are even more ancient. See Kates,
Jr., 82 Mich. L. Rev. at 266 (“Felons simply did not fall
within the benefits of the common law right to possess
arms.”).
       The takeaway: persons who have committed serious
crimes forfeit the right to possess firearms much the way they
“forfeit other civil liberties, including fundamental
constitutional rights.” Barton, 633 F.3d at 175.




                              25
              3. The Challengers’ Circumstances
                     a. Distinguishing the Historically Barred
                        Class
       Having identified the traditional justification for
denying some criminal offenders the right to arms—that they
are “unvirtuous” because they committed serious crimes—we
turn to how other criminal offenders may distinguish their
circumstances from those of people who historically lacked
the right to keep and bear arms. Barton suggests two ways to
satisfy this second hurdle of step one: the first is that a
challenger may show that he never lost his Second
Amendment rights because he was not convicted of a serious
crime; the second is that a challenger who once lost his
Second Amendment rights by committing a serious crime
may regain them if his “crime of conviction is decades-old”
and a court finds that he “poses no continuing threat to
society.” 633 F.3d at 174.
       We agree with Barton only insofar as it stands for the
unremarkable proposition that a person who did not commit a
serious crime retains his Second Amendment rights. Setting
aside what makes a crime “serious” in the Second
Amendment context and whether § 922(g)(1) covers any non-
serious crimes—issues we address in Part III.C.3.b and on
which there is disagreement, see Fuentes Op. Typescript at
19–20—being convicted of a non-serious crime does not
demonstrate a lack of “virtue” that disqualifies an offender
from exercising those rights.
        But our agreement with Barton ends there. We reject
its claim that the passage of time or evidence of rehabilitation
will restore the Second Amendment rights of people who
committed serious crimes. That view stems from Barton’s
misplaced focus at Marzzarella’s step one on the probability




                              26
of violent recidivism and is inconsistent with the true
justification for the disarmament of people who commit
serious crimes: they are “unvirtuous.” See supra Part III.C.2.
A challenger’s risk of violent recidivism tells us nothing
about whether he was convicted of a serious crime, and the
seriousness of the purportedly disqualifying offense is our
sole focus throughout Marzzarella’s first step.
        There is no historical support for the view that the
passage of time or evidence of rehabilitation can restore
Second Amendment rights that were forfeited. To the extent
Congress affords such a remedy in 18 U.S.C. § 921(a)(20) or
18 U.S.C. § 925(c), that is a matter of legislative grace; the
Second Amendment does not require that those who commit
serious crimes be given an opportunity to regain their right to
keep and bear arms in that fashion. Indeed, the Supreme
Court and our Court have recognized in the Second
Amendment context that the Judicial Branch is not
“institutionally equipped” to conduct “a neutral, wide-ranging
investigation” into post-conviction assertions of rehabilitation
or to predict whether particular offenders are likely to commit
violent crimes in the future. United States v. Bean, 537 U.S.
71, 77 (2002); see Pontarelli v. U.S. Dep’t of the Treasury,
285 F.3d 216, 230–31 (3d Cir. 2002) (en banc); cf. S. Rep.
102-353, at 19 (1992) (doubting that even the Executive
Branch could feasibly grant individualized exceptions to
§ 922(g)(1) based on an offender’s supposed rehabilitation
because doing so is “a very difficult and subjective task” that
“could have devastating consequences for innocent citizens if
the wrong decision is made”).
       In short, only the seriousness of the purportedly
disqualifying offense determines the constitutional sweep of
statutes like § 922(g)(1) at step one. To the extent Barton
holds that people convicted of serious crimes may regain their




                              27
lost Second Amendment rights after not posing a threat to
society for a period of time, it is overruled.

                     b. Application to the Challengers
        We now consider whether the Challengers have shown
that their crimes are not serious. As a preliminary matter, we
note that Judge Fuentes, those colleagues joining his opinion
dissenting from the judgment, and the Government deny the
possibility of successful as-applied Second Amendment
challenges to § 922(g)(1). See, e.g., Gov’t Binderup Br. at 14;
Gov’t Suarez Br. at 15; Fuentes Op. Typescript at 18–40. In
their view, § 922(g)(1), at least in its current form, is
constitutional in all its applications because it does not burden
the Second Amendment rights of felons or felon-equivalents
who, because of their convictions, lack Second Amendment
rights. Put another way, they believe that all crimes subject to
§ 922(g)(1) are disqualifying because their maximum possible
punishments are conclusive proof they are serious.

        But that view puts the rabbit in the hat by concluding
that all felons and misdemeanants with potential punishments
past a certain threshold lack the right to keep and bear arms
when, despite their maximum possible punishment, some
offenses may be “so tame and technical as to be insufficient
to justify the ban.” United States v. Torres-Rosario, 658 F.3d
110, 113 (1st Cir. 2011). Heller confirms such a showing is
possible, as it describes prohibitions on the possession of
firearms by felons as only “presumptively lawful.” 554 U.S.
at 626–27 & n.26. Unless flagged as irrebutable,
presumptions are rebuttable. See Barton, 633 F.3d at 173;
Williams, 616 F.3d at 692. Indeed, under the approach of
Judge Fuentes and those colleagues who join his opinion
dissenting from the judgments, the Government could make
an end-run around the Second Amendment and undermine the
right to keep and bear arms in contravention of Heller. A




                               28
crime’s maximum possible punishment is “purely a matter of
legislative prerogative,” Rummel v. Estelle, 445 U.S. 263, 274
(1980), subject only to “constitutional prohibitions on
irrational laws,” Heller, 554 U.S. at 628 n.27; see United
States v. Walker, 473 F.3d 71, 79 (3d Cir. 2007). Yet Heller
teaches that the Government needs more than a rational basis
“to overcome the right to keep and bear arms.” 554 U.S. at
628 n.27; see Marzzarella, 614 F.3d at 95–96. Therefore, to
determine whether the Challengers are shorn of their Second
Amendment rights, Heller requires us to consider the
maximum possible punishment but not to defer blindly to it.

        At the same time, there are no fixed criteria for
determining whether crimes are serious enough to destroy
Second Amendment rights. Unlike the “historically
unprotected categories of speech” that are First Amendment
exceptions “long familiar to the bar,” United States v.
Stevens, 559 U.S. 460, 468, 470 (2010), the category of
serious crimes changes over time as legislative judgments
regarding virtue evolve. For example, though only a few
exceedingly serious crimes were “felonies” at early common
law, by the time of our country’s founding “many new
felonies were added by English statute.” 1 Wharton’s
Criminal Law § 17 (15th ed. 2015); see, e.g., 4 William
Blackstone, Commentaries *18 (“[N]o less than a[ ] hundred
and sixty [actions] have been declared by act of parliament to
be felonies without benefit of clergy; or, in other words, to be
worthy of instant death.”); Francis Bacon, Preparation for the
Union of Laws of England and Scotland, in 2 The Works of
Francis Bacon, Lord Chancellor of England 163–64 (1841)
(listing dozens of felonies, including “[w]here a man stealeth
certain kinds of hawks” or “invocates wicked spirits”). The
upshot is that “exclusions need not mirror limits that were on
the books in 1791” to comport with the Second Amendment.
Skoien, 614 F.3d at 641. Rather, we will presume the
judgment of the legislature is correct and treat any crime




                              29
subject to § 922(g)(1) as disqualifying unless there is a strong
reason to do otherwise.

        Here, upon close examination of the Challengers’
apparently disqualifying convictions, we conclude that their
offenses were not serious enough to strip them of their
Second Amendment rights. For starters, though the
Challengers’ crimes meet the generic definition of a felony
and Congress’s definition of a felony for purposes of
§ 922(g)(1), the Pennsylvania and Maryland legislatures
enacted them as misdemeanors. Misdemeanors are, and
traditionally have been, considered less serious than felonies.
See Baldwin v. New York, 399 U.S. 66, 70 (1970);
misdemeanor, Black’s Law Dictionary (10th ed. 2014); 1
LaFave, Substantive Criminal Law § 1.6. Congress tried to
ensure that only serious crimes would trigger disarmament
under § 922(g)(1) by exempting from the ban any state-law
misdemeanant whose crime was punishable by less than two
years’ imprisonment. 18 U.S.C. § 921(a)(20)(B). But we
believe that accommodation still paints with too broad a
brush, for a state legislature’s classification of an offense as a
misdemeanor is a powerful expression of its belief that the
offense is not serious enough to be disqualifying.
       This is not to say that state misdemeanors cannot be
serious. No doubt “some misdemeanors are . . . ‘serious’
offenses,” Baldwin, 399 U.S. at 70, and “numerous
misdemeanors involve conduct more dangerous than many
felonies,” Tennessee v. Garner, 471 U.S. 1, 14 (1985). See
Johnson v. United States, 559 U.S. 133, 149–50 (2010)
(Alito, J., dissenting) (“At common law . . . many very
serious crimes, such as kidnapping and assault with the intent
to murder or rape, were categorized as misdemeanors.”). And
the maximum possible punishment is certainly probative of a
misdemeanor’s seriousness. But Congress may not overlook




                               30
so generally the misdemeanor label, which, in the Second
Amendment context, is also important.

       Other considerations, however, confirm our belief that
the Challengers’ crimes were not serious. As explained
above, violent criminal conduct—meaning a crime “in which
violence (actual or attempted) is an element of the offense,”
Skoien, 614 F.3d at 642; see Voisine, 136 S. Ct. at 2280—is
disqualifying. See Part III.C.2. But neither Challenger’s
offense had the use or attempted use of force as an element.4
Though, as explained, it is possible for non-violent crimes to
be serious, the lack of a violence element is a relevant
consideration.
       Also important is that each Challenger received a
minor sentence by any measure: Binderup was sentenced to
three years’ probation (a condition of which was to avoid
contact with his employee) and a $300 fine plus court costs
and restitution, while Suarez received a suspended sentence
of 180 days’ imprisonment and a $500 fine. That is because
severe punishments are typically reserved for serious crimes.

       4
          Though we look only to a crime’s elements rather
than to the way it actually was committed, we note as an aside
that the District Court in Binderup explained that “[t]here is
simply nothing in the record here which would support a
reasonable inference that [Binderup] used any violence, force,
or threat of force to initiate or maintain the sexual relationship
with his seventeen-year-old employee” or “that he even
engaged in any violent or threatening conduct.” 2014 WL
4764424, at *22. Similarly, the District Court in Suarez
described Suarez’s misdemeanor as “minor and non-violent.”
2015 WL 685889, at *9.




                               31
Additionally, punishments are selected by judges who have
firsthand knowledge of the facts and circumstances of the
cases and who likely have the benefit of pre-sentence reports
prepared by trained professionals. With not a single day of
jail time, the punishments here reflect the sentencing judges’
assessment of how minor the violations were.
        Finally, there is no cross-jurisdictional consensus
regarding the seriousness of the Challengers’ crimes. Some
states treat consensual sexual relationships between 41 and 17
year olds as serious crimes, see Gov’t Binderup Br. at 17–19
& n.4, but the vast majority of states do not, see Asaph
Glosser et al., Statutory Rape: A Guide to State Laws and
Reporting Requirements 6–7 (Dec. 15, 2004), available at
https://aspe.hhs.gov/sites/default/files/pdf/75531/report.pdf
(last visited Aug. 25, 2016). Binderup’s conduct arguably
would have been criminal in a few other states because his
17-year-old sexual partner was his employee, yet it still
would have been legal in many states. Similarly, though some
states punish the unlicensed carrying of a concealed weapon
as a serious crime, see Gov’t Suarez Br. at 16-17 n.5, more
than half prescribe a maximum sentence that does not meet
the threshold of a traditional felony (more than one year in
prison) and others do not even require a specific credential to
carry a concealed weapon, see Thomson Reuters, 50 State
Survey: Right to Carry a Concealed Weapon (Statutes)
(October 2015); U.S. Gov’t Accountability Off., States’ Laws
and Requirements for Concealed Carry Permits Vary Across
Nation          73–74        (2012),          available       at
http://www.gao.gov/assets/600/592552.pdf (last visited Aug.
25, 2016); Law Ctr. to Prevent Gun Violence, Concealed
Weapons          Permitting,       http://smartgunlaws.org/gun-
laws/policy-areas/firearms-in-public-places/concealed-
weapons-permitting/ (last visited Aug. 25, 2016). Were the
Challengers unable to show that so many states consider their
crimes to be non-serious, it would be difficult for them to




                              32
carry their burden at step one. But because they have shown
that there is no consensus regarding the seriousness of their
crimes, their showing at step one is that much more
compelling.5
       In sum, the Challengers have carried their burden of
showing that their misdemeanors were not serious offenses
despite their maximum possible punishment.6 This leads us to

       5
         Judge Fuentes and those colleagues who join his
opinion dissenting from the judgments caution that this
approach is not “workable” and “places an extraordinary
administrative burden on district courts,” Fuentes Op.
Typescript at 2, 71, but the criteria we use to assess the
seriousness of a misdemeanor subject to § 922(g)(1)—the
elements of the offense, the actual sentence, and the state of
the law—are easily administrable. These objective indications
of seriousness are well within the ambit of judgment
exercised daily by judges. Courts are also well suited to the
task of identifying serious crimes in the Second Amendment
context, as in other constitutional contexts the Judicial Branch
is charged with discerning “objective criteria reflecting the
seriousness with which society regards [an] offense.”
Baldwin, 399 U.S. at 68; see, e.g., Blanton v. City of North
Las Vegas, 489 U.S. 538, 543–44 (1989) (Sixth Amendment);
Welsh v. Wisconsin, 466 U.S. 740, 753 (1985) (Fourth
Amendment); Smith v. United States, 360 U.S. 1, 9 (1959)
(Fifth Amendment).
       6
        Our decision is limited to the cases before us, which
involve state-law misdemeanants bringing as-applied Second
Amendment challenges to § 922(g)(1). This is important
because when a legislature chooses to call a crime a




                              33
conclude that Binderup and Suarez have distinguished their
circumstances from those of persons historically excluded
from the right to arms. That, in turn, requires the Government
to meet some form of heightened scrutiny at the second step
of the Marzzarella framework.
       D. Step Two of the Marzzarella Framework
       Next, we consider whether § 922(g)(1) survives
heightened scrutiny as applied. On this record, it does not. No
doubt § 922(g)(1) is intended to further the government
interest of promoting public safety by “preventing armed
mayhem,” Skoien, 614 F.3d at 642, an interest that is both
important and compelling. But whether we apply intermediate
scrutiny or strict scrutiny—and we continue to follow the lead
of Marzzarella in choosing intermediate scrutiny, 614 F.3d at
97—the Government bears the burden of proof on the
appropriateness of the means it employs to further its interest.
See, e.g., Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.


misdemeanor, we have an indication of non-seriousness that
is lacking when it opts instead to use the felony label. We are
not confronted with whether an as-applied Second
Amendment challenge can succeed where the purportedly
disqualifying offense is considered a felony by the authority
that created the crime. On the one hand, it is possible to read
Heller to leave open the possibility, however remote, of a
successful as-applied challenge by someone convicted of such
an offense. At the same time, even if that were so, the
individual’s burden would be extraordinarily high—and
perhaps even insurmountable. In any event, given that neither
Challenger fits that description, we need not decide the
question.




                              34
469, 480 (1989); Johnson v. California, 543 U.S. 499, 505,
506 n.1 (2005).

       Here the Government falls well short of satisfying its
burden—even under intermediate scrutiny. The record before
us consists of evidence about the Challengers’ backgrounds,
including the time that has passed since they last broke the
law. It contains no evidence explaining why banning people
like them (i.e., people who decades ago committed similar
misdemeanors) from possessing firearms promotes public
safety. The Government claims that someone like Suarez is
“particularly likely to misuse firearms” because he belongs to
a category of “potentially irresponsible persons,” Gov’t
Suarez Br. at 27–28, and that someone like Binderup is
“particularly likely to commit additional crimes in the future,”
Gov’t Binderup Br. at 35. But it must “present some
meaningful evidence, not mere assertions, to justify its
predictive [and here conclusory] judgments.” Heller, 670
F.3d at 1259. In these cases neither the evidence in the record
nor common sense supports those assertions.
        The Government relies on a number of off-point
statistical studies to argue that it is reasonable to disarm the
Challengers because of their convictions. It notes that felons
generally commit violent crimes more frequently than non-
felons, see Bureau of Justice Statistics, U.S. Dep’t of Justice,
Recidivism of Prisoners Released in 1994, at 6 (2002), and
that the “denial of handgun purchases [to convicted felons] is
associated with a reduction in risk for later criminal activity
of approximately 20–30%,” Mona A. Wright et al.,
Effectiveness of Denial of Handgun Purchase to Persons
Believed to Be at High Risk for Firearm Violence, 89 Am. J.
of Pub. Health 88, 89 (1999). But these studies estimate the
likelihood that incarcerated felons will reoffend after their
release from prison. The Challengers were not incarcerated
and are not felons under state law; they are state-law




                              35
misdemeanants who spent no time in jail. The Government
cannot draw any reasonable conclusions about the risk posed
by their possession of firearms from such obviously
distinguishable studies. It claims that even criminals placed
on probation rather than sent to prison have a heightened risk
of recidivism, but the study it cites found that, “[g]enerally,
the risk of recidivism was highest during the first year after
admission to probation,” and that “[a]s released prisoners and
probationers age, they tend to exhibit lower rates of
recidivism.” Iowa Div. of Crim. & Juvenile Justice Planning,
Recidivism Among Iowa Probationers 2 (July 2005),
available at http://publications.iowa.gov/15032/ (last visited
Aug. 25, 2016). Binderup’s and Suarez’s offenses are 20 and
26 years old, respectively, so that study tells us little, if
anything, about the risk of recidivism in these cases.7


       7
         As discussed, evidence of how individuals have lived
their lives since committing crimes is irrelevant under
Marrzarella’s first step, as there is no historical support for
rehabilitation being a consideration in determining whether
someone has Second Amendment rights. However, at step
two of the analysis the question is no longer whether the
Challengers fall within the Second Amendment’s protections.
They do. Our task now is to decide whether the Government
can disarm them despite these protections. Whereas our
obligation at step one is to draw constitutional lines—
separating those who have Second Amendment rights from
those who do not—at step two we must ask whether the
Government has made a strong enough case for disarming a
person found after step one to be eligible to assert an as-
applied challenge. This turns in part on the likelihood that the
Challengers will commit crimes in the future. Thus, under the




                              36
       The Government also claims to have studies of
particular relevance to each Challenger’s situation, but this
argument too misses the mark. As to Binderup, the
Government cites studies from several states that it contends
would classify him as a sex offender on account of his
criminal conduct. See Gov’t Binderup Br. at 33–34; see also
id. at 28 n.8 (citing a Pennsylvania study showing that
individuals convicted of certain sexual offenses have a 50–
60% chance of rearrest within three years of release from
prison). Binderup unsurprisingly disputes that label. We need
not delve into the weeds here, as, much like the more general
studies discussed above, the sex-offender specific studies
focus on people who were incarcerated. It is not helpful to
draw inferences about the usefulness of disarming Binderup
from those off-point studies.
       As to Suarez, the Government emphasizes that persons
arrested for “weapons offenses” are rearrested at high rates,
Gov’t Suarez Br. at 30 & nn.10–11 (citing studies), and relies
on a study indicating that California handgun purchasers in
1977 “who had prior convictions for nonviolent firearm-
related offenses such as carrying concealed firearms in public,
but none for violent offenses,” were more likely than people
with no criminal histories to be charged later with a violent
crime, see Garen J. Wintemute et al., Prior Misdemeanor
Convictions as a Risk Factor for Later Violent and Firearm-
Related Criminal Activity Among Authorized Purchasers of
Handguns, 280 Am. Med. Ass’n 2083, 2086 (1998). Yet that
study only addresses the risk of recidivism within 15 years of
a conviction for an unspecified “nonviolent firearm-related
offense[].” Id. at 2086. Common sense tells us that recidivism


right circumstances the passage of time since a conviction can
be a relevant consideration in assessing recidivism risks.




                              37
rates would change with the passage of an additional 11 years
(Suarez was convicted 26 years ago) and vary based on the
circumstances of the prior conviction.
        This is not to say that empirical studies are irrelevant
to as-applied Second Amendment challenges. Parties may use
statistics to show that people who commit certain crimes have
a high (or low) likelihood of recidivism that warrants (or does
not warrant) disarmament, even decades after a conviction. In
these cases, empirical studies could have demonstrated an
appropriate fit between the Challengers’ total disarmament
and the promotion of public safety if they contained reliable
statistical evidence that people with the Challengers’
backgrounds were more likely to misuse firearms or were
otherwise irresponsible or dangerous. The Government
simply presented no such evidence.8
      Additionally, that federal law gives Binderup and
Suarez opportunities to escape the effect of § 922(g)(1) does
not save the statute from unconstitutionality under the

       8
         Judge Fuentes and those colleagues who join his
opinion dissenting from the judgments suggest that our
heightened scrutiny analysis boils down to the Challengers
asking us to trust that they will not misuse firearms because
we cannot make predictive judgments about the need to
disarm the Challengers “with any degree of confidence.”
Fuentes Op. Typescript at 55. We disagree. Under either form
of heightened scrutiny it is the Government’s burden to prove
that the restriction is appropriately tailored. The problem in
our cases is that because the Government’s evidence sweeps
so broadly, it does not establish that the restriction serves an
important interest even as applied to people like the
Challengers, let alone to the Challengers themselves.




                              38
circumstances. For starters, several avenues are closed to
them altogether: they may not apply for relief under § 925(c)
because that provision has been unfunded for years, see
Logan, 552 U.S. at 28 n.1; and Suarez is ineligible for
expungement or the restoration of his civil rights, see Md.
Code, Crim. P., § 10-105; Logan, 552 U.S. at 31–32. Those
avenues that remain open to them do not satisfy even
intermediate scrutiny. Binderup’s record may be expunged
only after he reaches age 70 (or is dead for three years), 18
Pa. Cons. Stat. § 9122(b), but as there is no evidence showing
it is reasonable to ban Binderup from possessing a firearm
today, there is certainly no evidence to show that it is
reasonable to keep that ban in place until his 70th birthday.
The only remaining option is for Binderup and Suarez to
receive pardons from the Governors of Pennsylvania and
Maryland, respectively. (Pardons are, as already noted, an
independent ground for relief from the firearm disability in
§ 922(g)(1), and Binderup must receive a pardon to restore
his civil rights. See 42 Pa. Cons. Stat. § 4502(a)(3).) But the
Government has presented no evidence or explanation as to
why a Governor’s decisions about pardons—“a classic
example of unreviewable executive discretion,” Bowens v.
Quinn, 561 F.3d 671, 676 (7th Cir. 2009)—are reasonably
related to the risk posed by the Challengers’ possession of
firearms. Though a pardon would reflect well on Binderup
and Suarez, it is hardly reasonable to treat the absence of a
pardon—rare by any measure—as adequate proof of a
continuing need to disarm them indefinitely.
       The Challengers’ isolated, decades-old, non-violent
misdemeanors do not permit the inference that disarming
people like them will promote the responsible use of firearms.
Nor is there any evidence in the record to show why people
like them remain potentially irresponsible after many years of
apparently responsible behavior. Without more, there is not a
substantial fit between the continuing disarmament of the




                              39
Challengers and an important government interest. Thus,
§ 922(g)(1) is unconstitutional as applied to them.

                       IV. Conclusion
       When sorting out a fractured decision of the Court, the
goal is “to find a single legal standard” that “produce[s]
results with which a majority of the [Court] in the case
articulating the standard would agree.” United States v.
Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (quoting Planned
Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693
(3d Cir. 1991), modified on other grounds, 505 U.S. 833
(1992)). We have at times “looked to the votes of dissenting
[judges] if they, combined with votes from plurality or
concurring opinions, establish a majority view on the relevant
issue.” Id. And when no single rationale explaining the result
enjoys the support of a majority of the Court, its holding
“may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.” Marks
v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 69 n.15 (1976) (plurality opinion)).
       Applying those interpretive tools here, the following is
the law of our Circuit: (1) the two-step Marzzarella
framework controls all Second Amendment challenges,
including as-applied challenges to § 922(g)(1); (2) a
challenger will satisfy the first step of that framework only if
he proves that the law or regulation at issue burdens conduct
protected by the Second Amendment; (3) to satisfy step one
in the context of an as-applied challenge to § 922(g)(1), a
challenger must prove that he was not previously convicted of
a serious crime; (4) evidence of a challenger’s rehabilitation
or his likelihood of recidivism is not relevant to the step-one
analysis; (5) as the narrowest ground supporting the Court’s
judgments for Binderup and Suarez, the considerations
discussed above will determine whether crimes are serious




                              40
(i.e., disqualifying) at step one; and (6) if a challenger makes
the necessary step-one showing, the burden shifts to the
Government at step two to prove that the regulation at issue
survives intermediate scrutiny.
       In the cases before us, though Binderup and Suarez fail
to show that their misdemeanor offenses are not subject to
§ 922(g)(1), they have rebutted the presumption that they lack
Second Amendment rights by distinguishing their crimes of
conviction from those that historically led to exclusion from
Second Amendment protections. This meets the first-step test
of Marzzarella. At step two, the Government has failed to
present sufficient evidence to demonstrate under even
intermediate scrutiny that it may, consistent with the Second
Amendment, apply § 922(g)(1) to bar Binderup and Suarez
from possessing a firearm in their homes. Accordingly, we
affirm the judgments of the District Courts.




                              41
Daniel Binderup v. Attorney General of the United States;
Director Bureau of Alcohol Tobacco Firearms & Explosives
Nos. 14-4550, 14-4549

Julio Suarez v. Attorney General of the United States;
Director Bureau of Alcohol Tobacco Firearms & Explosives
Nos. 15-1975, 15-1976

HARDIMAN, Circuit Judge, concurring in part and
concurring in the judgments, joined by FISHER,
CHAGARES, JORDAN, and NYGAARD, Circuit Judges.

        The Second Amendment secures an individual “right
of the people” to keep and bear arms unconnected to service
in the militia. District of Columbia v. Heller, 554 U.S. 570,
595 (2008). This “pre-existing” right was included in the Bill
of Rights in light of the troubles the colonists experienced
under British rule and the Founders’ appreciation of the
considerable power that was transferred to the new federal
government. Without a specific guarantee in our fundamental
charter, it was feared that “the people” might one day be
disarmed. See id. at 598–99. At the same time, the Founders
understood that not everyone possessed Second Amendment
rights. These appeals require us to decide who count among
“the people” entitled to keep and bear arms.

       The laws of the United States prohibit felons and
certain misdemeanants from possessing firearms. 18 U.S.C.
§ 922(g)(1). Guided by the Supreme Court’s characterization
of felon dispossession as “presumptively lawful” in Heller,
we held in United States v. Barton that this prohibition does
not on its face violate the Second Amendment. 633 F.3d 168
(3d Cir. 2011). In doing so we stated that § 922(g)(1) remains
subject to as-applied constitutional challenges. Id. at 172–75.
These consolidated appeals present two such challenges.
Daniel Binderup and Julio Suarez—each permanently barred
from possessing firearms because of prior misdemeanor
convictions—contend that § 922(g)(1) is unconstitutional as
applied to them.

        It is. The most cogent principle that can be drawn from
traditional limitations on the right to keep and bear arms is
that dangerous persons likely to use firearms for illicit
purposes were not understood to be protected by the Second
Amendment. And because Binderup and Suarez have
demonstrated that their crimes of conviction were nonviolent
and that their personal circumstances are distinguishable from
those of persons who do not enjoy Second Amendment rights
because of their demonstrated proclivity for violence, the
judgments of the District Courts must be affirmed.

                               I

      We agree with all our colleagues that Binderup and
Suarez are subject to disarmament under the plain terms of 18
U.S.C. § 922(g)(1). 1 We also agree with Judges Ambro,
Smith, and Greenaway that the District Court correctly held

      1
           Given the Court’s universal agreement that
§ 922(g)(1) is unambiguous as to whom it covers and what it
criminalizes, we have trouble comprehending the Dissent’s
fears that our approach for assessing the statute’s as-applied
constitutionality under the Second Amendment (set forth
infra) puts it at risk of being declared unconstitutionally
vague under the Due Process Clause. See Dissent at 71–74.
Our view is simply that certain applications of this pellucid
statute might be unconstitutional.



                              2
that § 922(g)(1) is unconstitutional as applied to Binderup and
Suarez. But we perceive flaws in Judge Ambro’s opinion. 2

        To begin with, our colleagues misapprehend the
traditional justifications underlying felon dispossession,
substituting a vague “virtue” requirement that is belied by the
historical record. Then, under the guise of “reaffirm[ing]” the
two-step test of United States v. Marzzarella, Ambro Op. 6,
they actually expand that test—and along with it, the judicial
power. For our colleagues hold that even with respect to
persons entitled to Second Amendment rights, judges may
pick and choose whom the government may permanently
disarm if the judges approve of the legislature’s interest
balancing. Despite Binderup’s and Suarez’s success today,
our colleagues have retained “the power to decide on a case-
by-case basis whether the [Second Amendment] right is
really worth insisting upon.” Heller, 554 U.S. at 634. This is
demonstrated by the fact that all but three of our dissenting
colleagues—who have concluded that all as-applied
challenges to § 922(g)(1) must fail—join the bulk of Judge
Ambro’s constitutional analysis. By contrast, we would
hold—consistent with Heller—that non-dangerous persons
convicted of offenses unassociated with violence may rebut
the presumed constitutionality of § 922(g)(1) on an as-applied
basis, and that when a law eviscerates the core of the Second

       2
        Although a majority of the Court joins two portions
of Judge Ambro’s opinion and a plurality joins others, the
outcome-determinative sections are supported by only three
judges. To minimize confusion, we will refer to the opinion
as “Judge Ambro’s opinion” and will indicate whether the
relevant portion thereof was backed by a majority or not
where necessary.



                              3
Amendment right to keep and bear arms (as § 922(g)(1) does
by criminalizing exercise of the right entirely), it is
categorically unconstitutional.

                              A

        The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. In Heller, the Supreme
Court held the Second Amendment protects an individual
right to possess a firearm unconnected to service in a militia,
and to use that weapon for traditionally lawful purposes, such
as self-defense within the home. 554 U.S. at 595. The Second
Amendment “elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home”—a right that is at the “core” of the Second
Amendment. Id. at 635 (emphasis added). Two years after
Heller, in McDonald v. City of Chicago, the Court held the
Fourteenth     Amendment       “incorporates    the    Second
Amendment right recognized in Heller,” explaining that the
right is “fundamental” to “our system of ordered liberty.” 561
U.S. 742, 778 (2010).

       Although the Second Amendment is an enumerated
fundamental right, it is “not unlimited.” Heller, 554 U.S. at
626. “No fundamental right—not even the First
Amendment—is absolute.” McDonald, 561 U.S. at 802
(Scalia, J., concurring). A range of “who,” “what,” “where,”
“when,” and “how” restrictions relating to firearms are
permitted—many based on the scope of the Second
Amendment and others based on their satisfaction of some
level of heightened scrutiny. See Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-



                              4
Defense: An Analytical Framework and A Research Agenda,
56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between
 “‘what’ restrictions (such as bans on machine guns, so-called
‘assault weapons,’ or unpersonalized handguns), ‘who’
restrictions (such as bans on possession by felons,
misdemeanants, noncitizens, or 18-to-20-year-olds), ‘where’
restrictions (such as bans on carrying in public, in places that
serve alcohol, or in parks, or bans on possessing [guns] in
public housing projects), ‘how’ restrictions (such as storage
regulations), [and] ‘when’ restrictions (such as waiting
periods)”); United States v. Huitron-Guizar, 678 F.3d 1164,
1166 (10th Cir. 2012) (applying the same heuristic).

       For instance, the right is “not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, 554 U.S. at 626. Likewise, the
Supreme Court has acknowledged the “historical tradition of
prohibiting the carrying of dangerous and unusual weapons.”
Id. (internal quotation marks omitted). In addition, Heller
catalogued a non-exhaustive list of “presumptively lawful
regulatory measures” that have historically constrained the
parameters of the right. Id. at 627 n.26. These include
“longstanding 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
buildings, [and] laws imposing conditions and qualifications
on the commercial sale of arms.” 3 Id. at 626–27. Critically,


       3
         At least one of our sister courts has characterized
Heller’s list of “presumptively lawful” regulations as dicta.
See United States v. Scroggins, 599 F.3d 433, 451 (5th Cir.
2010). But “[c]ourts often limit the scope of their holdings,
and such limitations are integral to those holdings.” United



                                5
such “traditional restrictions go to show the scope of the right,
not its lack of fundamental character.” McDonald, 561 U.S. at
802 (Scalia, J., concurring) (emphasis added). The reason, for
example, that the Second Amendment “does not protect those
weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns,” is that they
fall outside the historical “scope of the right”—not that the
right yields to some important or compelling government
interest. Heller, 554 U.S. at 625; see also United States v.
Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).

      The Supreme Court has not yet heard an as-applied
Second Amendment challenge to a presumptively lawful ban
on firearms possession. But that fact makes Heller and
McDonald no less binding on our inquiry here.

                               B

                               1

      Two of our decisions pertain to Binderup’s and
Suarez’s as-applied challenges in these appeals. United States

States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010)
(treating Heller’s “presumptively lawful” language as
binding); see also United States v. Rozier, 598 F.3d 768, 771
(11th Cir. 2010) (“[T]o the extent that this portion of Heller
limits the Court’s opinion to possession of firearms by law-
abiding and qualified individuals, it is not dicta.”). Moreover,
the Court doubled down on this language in McDonald. See
561 U.S. at 786. Hence, we have concluded that Heller’s list
constitutes a limitation on the scope of its holding and does
not qualify as dicta. See Barton, 633 F.3d at 171; United
States v. Huet, 665 F.3d 588, 600 (3d Cir. 2012).



                               6
v. Marzzarella involved an as-applied challenge to a
conviction under 18 U.S.C. § 922(k), which prohibits the
possession of a handgun with an obliterated serial number—a
“what” restriction limiting possession of a certain category of
firearms. 614 F.3d at 87. Because this statute was not
included in Heller’s list of presumptively lawful firearm
regulations, we gleaned from Heller a “two-pronged approach
to Second Amendment challenges.” Id. at 89. We first
consider “whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amendment’s
guarantee.” Id. If the conduct lies outside the Second
Amendment’s scope, the right does not apply and the
challenged law must stand. But if the law burdens protected
conduct, we determined that the proper course is to “evaluate
the law under some form of means-end scrutiny.” Id. “If the
law passes muster under that standard, it is constitutional. If it
fails, it is invalid.” Id.

        Applying that test to § 922(k)’s ban on the possession
of firearms with obliterated serial numbers, we held that the
law “would pass constitutional muster even if it burdens
protected conduct.” Id. at 95. In other words, we skipped the
first step and proceeded to apply means-ends scrutiny. We
chose intermediate scrutiny 4 because “[t]he burden imposed
by the law does not severely limit the possession of firearms”
and does not bar possession of an entire class of firearms. Id.

       4
           Intermediate scrutiny “require[s] the asserted
governmental end to be more than just legitimate, either
‘significant,’ ‘substantial,’ or ‘important,’” and requires “the
fit between the regulation and the asserted objective be
reasonable, not perfect.” Marzzarella, 614 F.3d at 98
(citations omitted).



                                7
at 97. Under that standard, we concluded that the law is
constitutional because it fits reasonably with the substantial or
important “law enforcement interest in enabling the tracing of
weapons via their serial numbers.” Id. at 98. We also opined
that the law would pass strict scrutiny 5 because it serves a
compelling government interest through the “least-restrictive”
means. Id. at 100.

       A year after Marzzarella we decided Barton, which
involved facial and as-applied challenges to the very law in
question here: § 922(g)(1). Unlike the law at issue in
Marzzarella—the “what” restriction codified in § 922(k)—
the statute at issue in Barton (and in these appeals) was a
presumptively lawful “who” restriction that prohibits certain
people from possessing guns because of their membership in
a criminal class. Barton was a felon who had been convicted
of possessing firearms and ammunition in violation of
§ 922(g)(1). Barton, 633 F.3d at 169. We readily concluded
that his facial challenge “must fail” in light of Heller’s list of
presumptively lawful firearm regulations. Id. at 172. We
reasoned that since a facial challenge requires a showing that
the challenged law “is unconstitutional in all of its
applications,” Heller foreclosed a facial challenge to
§ 922(g)(1) because it is “presumptively lawful,” meaning
that, “under most circumstances, [it] regulate[s] conduct
which is unprotected by the Second Amendment.” Id.

      Most relevant to these appeals is our analysis of
Barton’s as-applied challenge to § 922(g)(1). In that regard,

       5
         “Strict scrutiny asks whether the law is narrowly
tailored to serve a compelling government interest.”
Marzzarella, 614 F.3d at 96 n.14



                                8
we first determined that “Heller’s statement regarding the
presumptive validity of felon gun dispossession statutes does
not foreclose” an as-applied challenge. Id. at 173. We
reasoned that “[b]y describing the felon disarmament ban as
presumptively lawful, the Supreme Court implied that the
presumption may be rebutted.” 6 Id. at 173 (internal citation
and quotation marks omitted).


       6
         At times, the Government seems to reject even the
possibility of an as-applied Second Amendment challenge to
a presumptively lawful regulation. See, e.g., Gov’t Suarez Br.
15 (“In recognizing section 922(g)(1) as a ‘presumptively
lawful regulatory measure[],’ the Supreme Court did not
suggest that the statute nonetheless could be subject to a
successful as-applied constitutional challenge.” (internal
citation omitted)); Gov’t Binderup Br. 14 (same, verbatim).
The Government retreated from that proposition somewhat at
oral argument, reframing its position as an objection merely
to as-applied challenges that rely on individualized review of
whether a law is unconstitutional in light of the challenger’s
particular circumstances. But some degree of individualized
assessment is part and parcel of all as-applied challenges. See,
e.g., United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.
2010) (explaining that an as-applied challenge “does not
contend that a law is unconstitutional as written but that its
application to a particular person under particular
circumstances deprived that person of a constitutional right”
(emphases added)).
       And our determination in Barton that § 922(g)(1) is
subject to as-applied challenges is by no means an outlier.
Several of our sister courts have either accepted or allowed
the possibility of as-applied Second Amendment challenges



                               9
to presumptively lawful regulations. See, e.g., United States v.
Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“Heller referred
to felon disarmament bans only as ‘presumptively lawful,’
which, by implication, means that there must exist the
possibility that the ban could be unconstitutional in the face
of an as-applied challenge.”); United States v. Carpio-Leon,
701 F.3d 974, 981 (4th Cir. 2012) (“The Heller Court’s
holding that defines the core right to bear arms by law-
abiding, responsible citizens does not preclude some future
determination that persons who commit some offenses might
nonetheless remain in the protected class of ‘law-abiding,
responsible’ persons.”); Schrader v. Holder, 704 F.3d 980,
991 (D.C. Cir. 2013) (indicating willingness to consider an
as-applied Second Amendment challenge to § 922(g)(1) but
concluding it had not been raised properly).
       Although the Dissent rests its conclusion on its
determination that all persons covered by § 922(g)(1) fall
outside the scope of the Second Amendment, it too expresses
doubt as to the availability of as-applied constitutional
challenges to this “presumptively lawful” statute. See Dissent
at 21 (stating that Marzzarella “concluded that the ‘better
reading’ of Heller was that [the list of presumptively lawful]
measures were complete ‘exceptions to the right to bear
arms’”) (quoting Marzzarella, 614 F.3d at 91 and adding
emphasis). Marzzarella held no such thing (indeed, it did not
even involve a challenge to one of the presumptively lawful
longstanding regulations identified by Heller). Rather, its
examination of Heller’s list was geared toward determining
whether such regulations were “presumptively lawful” based
on the step-one question (the scope of the Second
Amendment) or the step-two question (means-end scrutiny).
Its conclusion that the former is the correct understanding of



                              10
      Next, we explained what was required to mount a
successful as-applied Second Amendment challenge to

Heller meant that “these longstanding limitations are
exceptions to the right to bear arms.” Marzzarella, 614 F.3d
at 91. Barton’s characterization mirrored Marzzarella’s: it
stated that a “lawful” longstanding regulation “regulates
conduct ‘fall[ing outside] the scope of the Second
Amendment’s guarantee.’” Barton, 633 F.3d at 172 (quoting
Marzzarella, 614 F.3d at 91). But neither Marzzarella nor any
other of our precedents has ever implied that Heller’s
incomplete list of “presumptively lawful” firearm regulations
“‘under any and all circumstances do not offend the Second
Amendment.’” Dissent at 10 (quoting United States v. Rozier,
598 F.3d 768, 771 (11th Cir. 2010) and adding emphasis). To
so hold would ignore the meaning of the word “presumption.”
A presumption of constitutionality “is a presumption . . .
[about] the existence of factual conditions supporting the
legislation. As such it is a rebuttable presumption.” Borden’s
Farm Products Co. v. Baldwin, 293 U.S. 194, 209 (1934)
(emphasis added). We do not disagree that the Heller Court
included this “presumptively lawful” language to provide
some “assurance[]” that its decision “did not provide a basis
for future litigants to upend any and all restrictions on the
right to bear arms.” Dissent at 36. Indeed, we have concluded
that § 922(g)(1) is facially valid for this very reason. See
Barton, 633 F.3d at 172. But we doubt the Supreme Court
couched its first definitive characterization of the nature of
the Second Amendment right so as to completely immunize
this statute from any constitutional challenge whatsoever. Put
simply, we take the Supreme Court at its word that felon
dispossession is “presumptively lawful.” Heller, 554 U.S. at
627 n.26 (emphasis added).



                             11
§ 922(g)(1). We looked to the “historical pedigree” of the
statute to ascertain “whether the traditional justifications
underlying the statute support a finding of permanent
disability in this case.” Id; see also id. at 175 (noting that the
constitutionality of the felon dispossession statute under the
Second Amendment right depends “upon whom the right was
intended to protect”) (emphasis in original). Our analysis
revealed that although persons convicted of violent crimes
have been barred from firearm possession since 1931, it
wasn’t until thirty years later that Congress dispossessed
nonviolent felons. Id. at 173. The historical record
demonstrated that “the common law right to keep and bear
arms did not extend to those who were likely to commit
violent offenses.” Id. Accordingly, we determined that the
exclusion of felons and other criminals from the scope of the
Second Amendment’s protections was tethered to the time-
honored practice of keeping firearms out of the hands of those
likely to commit violent crimes. Id.

       For the reasons discussed, we concluded that “[t]o
raise a successful as-applied challenge, [one] must present
facts about himself and his background that distinguish his
circumstances from those of persons historically barred from
Second Amendment protections.” Id. at 174. We explained
further:

       For instance, a felon convicted of a minor, non-
       violent crime might show that he is no more
       dangerous than a typical law-abiding citizen.
       Similarly, a court might find that a felon whose
       crime of conviction is decades-old poses no
       continuing threat to society.

Id. (internal citation omitted).



                                   12
       We had no trouble concluding that Barton failed to
make this showing because he could not demonstrate that he
was “no more likely than the typical citizen to commit a
crime of violence.” Id. To begin with, his prior disqualifying
convictions were for possession of cocaine with intent to
distribute and for receipt of a stolen firearm. Id. As we
explained, “[c]ourts have held in a number of contexts that
offenses relating to drug trafficking and receiving stolen
weapons are closely related to violent crime”—again, the
relevant historical justification for excluding the class of
which Barton was a member from the Second Amendment’s
protections. Id. The record also indicated that Barton had not
been rehabilitated such that he was “no more dangerous than
a typical law-abiding citizen.” Id. Indeed, he had recently
admitted to selling a firearm with an obliterated serial number
to a police informant. Id. For those reasons, we rejected
Barton’s as-applied challenge because he had failed “to
demonstrate that his circumstances place him outside the
intended scope of § 922(g)(1).” Id.

                               2

       Our decisions in Marzzarella and Barton show that the
threshold question in a Second Amendment challenge is one
of scope: whether the Second Amendment protects the
person, the weapon, or the activity in the first place. This
requires an inquiry into “text and history.” Heller, 554 U.S. at
595. “Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them,
whether or not future legislatures or (yes) even future judges
think that scope too broad.” Id. at 634–35. The “critical tool
of constitutional interpretation” in this area is “examination of
a variety of legal and other sources to determine the public
understanding of a legal text in the period after its enactment



                               13
or ratification.” Id. at 605 (emphasis in original); see also
Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011)
(“Heller suggests that some federal gun laws will survive
Second Amendment challenge because they regulate activity
falling outside the scope of the right as publicly understood
when the Bill of Rights was ratified; McDonald confirms that
if the claim concerns a state or local law, the ‘scope’ question
asks how the right was publicly understood when the
Fourteenth Amendment was proposed and ratified.”). Hence,
the scope of the right is discerned with reference to the
“historical justifications” underlying traditional limits on the
right’s coverage. Heller, 554 U.S. at 635. The test we
enunciated in Barton was directed at this very question. See
Barton, 633 F.3d at 173 (“[T]o evaluate [an] as-applied
challenge [to § 922(g)(1)], we look to [its] historical pedigree
. . . to determine whether the traditional justifications
underlying the statute support a finding of permanent
disability in this case.”).

        The fact that Barton speaks to scope does not mean, as
our colleagues and the Government insist, that it requires
application of means-end scrutiny once it is determined that a
presumptively lawful regulation has dispossessed someone
who falls within the protection of the Second Amendment. It
is true that courts typically apply some form of means-end
scrutiny to as-applied challenges once it has been determined
that the law in question burdens protected conduct. But when,
as in these appeals, it comes to an as-applied challenge to a
presumptively lawful regulation that entirely bars the
challenger from exercising the core Second Amendment
right, any resort to means-end scrutiny is inappropriate once it
has been determined that the challenger’s circumstances
distinguish him from the historical justifications supporting




                              14
the regulation. This is because such laws are categorically
invalid as applied to persons entitled to Second Amendment
protection—a matter of scope.

        This principle is based on Heller itself. That decision
invalidated a municipal law that banned handgun possession
in the home and required any lawful firearm to be kept
disassembled and bound by a trigger lock at all times,
rendering it inoperable. 7 Heller, 554 U.S. at 628. Especially
significant for these appeals, the Court eschewed means-end
scrutiny in assessing the constitutionality of the ban. Because
the law precluded individuals from possessing an important
class of firearms in the home even for self-defense (the right
at the “core” of the Second Amendment) and required that all
firearms within the home be rendered inoperable, it was
unconstitutional without regard to governmental interests
supporting the law or their overall “fit” with the regulation.
See Heller, 554 U.S. at 629–30.

       Heller’s reasoning bears this out. Specifically, with
respect to the District of Columbia’s requirement that all
firearms in the home be “kept inoperable at all times,” the
Court said: “[t]his makes it impossible for citizens to use
them for the core lawful purpose of self-defense and is hence
unconstitutional.” Id. at 630 (emphasis added).
Conspicuously absent from the Court’s analysis is any
mention of means-end scrutiny. Instead, the Court reasoned

       7
          McDonald involved a similar handgun ban, but the
Court limited its analysis to the incorporation question and
remanded the case. 561 U.S. at 791. The City of Chicago
subsequently lifted the ban and replaced it with a less
restrictive ordinance. See Ezell, 651 F.3d at 689.



                              15
categorically: (1) the regulation entirely deprives protected
persons from exercising the core of the Second Amendment
right; (2) it’s therefore unconstitutional. The same went for
the District of Columbia’s handgun ban. After concluding that
the Second Amendment includes handguns, the Court didn’t
mince words: “[w]hatever the reason, handguns are the most
popular weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is invalid.” Id.
at 629 (emphasis added). A nineteenth century authority
quoted by the Supreme Court in the paragraph preceding this
conclusion should eliminate any doubt regarding the Court’s
categorical approach: “A statute which, under the pretence of
regulating, amounts to a destruction of the right, or which
requires arms to be so borne as to render them wholly useless
for the purpose of defence, would be clearly
unconstitutional.” Id. (quoting State v. Reid, 1 Ala. 612, 616–
617 (1840)) (emphases added); see also Bliss v. Com., 12 Ky.
90, 91 (1822) (suggesting that a regulation that “import[s] an
entire destruction of the right of the citizens to bear arms in
defense of themselves and the state” would be plainly
unconstitutional). Hence, a law that burdens persons, arms, or
conduct protected by the Second Amendment and that does so
with the effect that the core of the right is eviscerated is
unconstitutional. 8




      8
         The Heller Court declined to detail which form of
scrutiny might apply in cases involving less severe burdens
on Second Amendment rights but cautioned that rational basis
scrutiny would never apply. Id. at 629 n.27. “If all that was
required to overcome the right to keep and bear arms was a
rational basis,” the Court explained, “the Second Amendment



                              16
         We are not the first to recognize this categorical rule.
As the Seventh Circuit has explained, “[b]oth Heller and
McDonald suggest that broadly prohibitory laws restricting
the core Second Amendment right—like the handgun bans at
issue in those cases, which prohibited handgun possession
even in the home—are categorically unconstitutional.” Ezell,
651 F.3d at 703; see also Joseph Blocher, Categoricalism and
Balancing in First and Second Amendment Analysis, 84
N.Y.U. L. Rev. 375, 380 (2009) (“Rather than adopting one
of the First Amendment’s many Frankfurter-inspired
balancing approaches, the majority endorsed a categorical test
under which some types of ‘Arms’ and arms-usage are
protected absolutely from bans and some types of ‘Arms’ and
people are excluded entirely from constitutional coverage.”);
Heller v. D.C., 670 F.3d 1244, 1272–73 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (“As to the ban on handguns[,]
. . . the Supreme Court in Heller never asked whether the law
was narrowly tailored to serve a compelling government
interest (strict scrutiny) or substantially related to an
important government interest (intermediate scrutiny). If the
Supreme Court had meant to adopt one of those tests, it could
have said so in Heller and measured D.C.’s handgun ban
against the relevant standard. But the Court did not do so; it
instead determined that handguns had not traditionally been
banned and were in common use—and thus that D.C.’s
handgun ban was unconstitutional.”); Peruta v. Cnty. of San
Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) (“[T]he rare law
that ‘destroys’ the [core Second Amendment] right” requires
“Heller-style per se invalidation.”) (O’Scannlain, J.), rev’d on
reh’g en banc, 2016 WL 3194315 (9th Cir. June 9, 2016).

would be redundant with the separate constitutional
prohibitions on irrational laws, and would have no effect.” Id.



                               17
         Although we suspect that most firearm regulations
probably will not trigger this categorical rule, § 922(g)(1)
certainly does. As applied to someone who falls within the
protective scope of the Second Amendment, § 922(g)(1) goes
even further than the “severe restriction” struck down in
Heller: it completely eviscerates the Second Amendment
right. 9 Cf. United States v. McCane, 573 F.3d 1037, 1049
(10th Cir. 2009) (Tymkovich, J., concurring) (recognizing
that “the broad scope of 18 U.S.C. § 922(g)(1)—which
permanently disqualifies all felons from possessing
firearms—would conflict with the ‘core’ self-defense right
embodied in the Second Amendment” to the extent that its
presumptive validity does not attach) (emphasis in original).
Indeed, the Government’s contention that one can fall within
the protective scope of the Second Amendment yet
nevertheless be permanently deprived of the right transforms
what it means to possess a “right.” Boiled down to its
essence, the Government’s position goes something like this:
“You have the right to keep and bear arms, but you may never
exercise that right because we have supplied good reasons.”
This understanding of the Second Amendment is too

       9
          The Government wrongly asserts that we have
recognized that “even laws that actually burden Second
Amendment rights must only have a ‘reasonable, not perfect,’
fit with an important government interest.” Gov’t Br. 26
(quoting Marzzarella, 614 F.3d at 98). The Dissent agrees
that intermediate scrutiny is the appropriate standard here. See
Dissent at 41–45. But Marzzarella applied intermediate
scrutiny (before going on to apply strict scrutiny, just in case)
because the law under attack did not even “come close” to a
ban on the possession of firearms in the home. Marzzarella,
614 F.3d at 97.



                               18
parsimonious a view of a constitutional right because a
“right” that entitles its holder to nothing whatsoever “is no
constitutional guarantee at all.” Heller, 554 U.S. at 634.
When the Second Amendment applies, its core guarantee
cannot be withdrawn by the legislature or balanced away by
the courts. 10 Rather, “[t]he very enumeration of the right takes
out of the hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis
whether the right is really worth insisting upon.” Id. at 634. 11


       10
         See Crawford v. Washington, 541 U.S. 36, 67–68
(2004) (“By replacing categorical constitutional guarantees
with open-ended balancing tests, we do violence to their
design. Vague standards are manipulable . . . .”).
       11
          Judges Ambro and Fuentes deny that § 922(g)(1)
eviscerates the right to keep and bear arms. In Judge Ambro’s
view, because “persons convicted of disqualifying offenses
may possess handguns if (1) their convictions are expunged
or set aside, (2) they receive pardons, or (3) they have their
civil rights restored,” the statute is akin to run-of-the-mill
regulations imposing “preconditions” to firearm possession
by individuals with Second Amendment rights, such as safety
training requirements. Ambro Op. 17–18. Far from it. To
begin with, the “only . . . option” available to Binderup and
Suarez to satisfy the so-called “precondition” imposed by
§ 922(g)(1) is to receive pardons. Id. at 39. To frame this
moonshot as a mere condition precedent to arms possession
not unlike a training-course requirement strains credulity.
Section 922(g)(1) is a ban on firearms possession subject to a
few statutory exceptions, not a mere regulatory proviso that
simply conditions exercise of the right on the completion of a
background check or safety class.



                               19
                              3

       For the reasons stated, Barton alone provides the
standard for an as-applied Second Amendment challenge to a
presumptively lawful regulatory measure (like § 922(g)(1))

        Indeed, Heller itself shows the “precondition”
characterization of § 922(g)(1) to be unavailing. The handgun
ban and disassembly ordinance struck down in that case
likewise had exceptions that could be abstractly framed as
“conditions precedent” to exercise of the Second Amendment
right: the handgun ban was subject to an exception that the
Chief of Police could issue one-year handgun licenses at his
discretion and the disassembly ordinance allowed residents to
keep lawful firearms in the home so long as they were
rendered inoperable. See Heller, 554 U.S. at 574–75. But the
Supreme Court did not understand the licensing exception as
a condition precedent to handgun possession or the
disassembly rule as a mere precondition on keeping firearms
in the home; it viewed these carve-outs as “minor exceptions”
and struck down both ordinances as unconstitutional
destructions of the Second Amendment right. Id. at 575 n.1,
629–30. The Dissent’s retort that Heller is distinguishable
because there the “core ‘right of law-abiding, responsible
citizens to use arms in defense of hearth and home’” was
implicated and here it is not because Binderup and Suarez’s
misdemeanors place them outside of that class puts the rabbit
in the hat. Dissent at 45 (quoting Heller, 554 U.S. at 635). If
Binderup’s and Suarez’s offenses are not of the type that
were historically understood to remove them from the class of
persons entitled to Second Amendment rights, § 922(g)(1)
effects the same type of untenable “conditions” that were
deemed unconstitutional in Heller.



                              20
that denies a core Second Amendment right to a certain class
of persons. And our opinion in that case explains the two
things an individual must do to mount a successful as-applied
challenge. First, he must identify the traditional justifications
for excluding from Second Amendment protections the class
of which he is a member. See Barton, 633 F.3d at 172. Only
justifications with “historical pedigree” are relevant for
regulations imposing a permanent disability. Id. Second, he
must present facts about himself and his background that
distinguish his circumstances from those of persons in the
historically barred class. Id. at 174. These facts must speak to
the traditional justifications that legitimize the class’s
disability. In Barton we noted at least two ways of doing this:
(1) “a felon convicted of a minor, non-violent crime might
show that he is no more dangerous than a typical law-abiding
citizen,” or (2) “a court might find that a felon whose crime of
conviction is decades-old poses no continuing threat to
society.” 12 Id.

       This does not mean, of course, that a dispossessed
individual can win an as-applied challenge by promising to



       12
           Our colleagues reject Barton’s mention of the
possibility that “the passage of time or evidence of
rehabilitation [might] restore the Second Amendment rights
of people who committed serious crimes.” Ambro Op. 26. We
have not been presented with historical evidence one way or
another whether this might be a route to restoration of the
right to keep and bear arms in at least some cases, so we
would leave for another day the determination whether that
turns out to be the case.



                               21
behave well in the future. 13 Courts must diligently inquire
into the facts to determine whether a challenger has

      13
           The Government’s and the Dissent’s repeated
citations on this point to Pontarelli v. U.S. Department of
Treasury are inapposite. That case involved an appropriations
ban that suspended the ability of the Bureau of Alcohol,
Tobacco, and Firearms (ATF) to consider petitions from
convicted felons for restoration of their firearms privileges
under 18 U.S.C. § 925(c), a statute that also gives federal
district courts jurisdiction to review applications denied by
ATF. 285 F.3d 216, 217 (3d Cir. 2002). We concluded that
“because the appropriations ban suspends ATF’s ability to
issue the ‘denial’ that § 925(c) makes a prerequisite, it
effectively suspends that statute’s jurisdictional grant.” Id.
Given that “[e]valuating a § 925(c) application requires a
detailed investigation of the felon’s background and recent
conduct,” which includes “interviewing a wide array of
people, including the felon, his family, his friends, the
persons whom he lists as character references, members of
the community where he lives, his current and former
employers, his coworkers, and his former parole officers,” we
noted as a “[p]olicy [c]onsideration[]” that without prior ATF
involvement and an adversarial process, “courts are without
the tools necessary to conduct a systematic inquiry into an
applicant’s background.” Id. If courts “reviewed applications
de novo,” we reasoned, “they would be forced to rely
primarily—if not exclusively—on information provided by
the felon,” which “would be dangerously one-sided.” Id.
(internal quotation marks and citation omitted). Contrary to
the Government’s and the Dissent’s characterizations, a
constitutional inquiry into a presumptively lawful statute is
distinct from the one-sided, fact-intensive inquiry that would



                             22
adequately distinguished his own circumstances from those of
persons historically barred from Second Amendment
protections. Heller and Barton place the burden on the
challenger to rebut the presumptive lawfulness of § 922(g)(1).
See Barton, 633 F.3d at 174. That’s no easy task. Government
evidence regarding one’s criminal history will require the
challenger to make a strong showing to distinguish himself
from others with criminal records. But to deny one even the
opportunity to “develop [a] factual basis” in support of his
constitutional claim would run afoul of both Supreme Court
guidance regarding the scope of the Second Amendment and
the concept of an as-applied challenge. Id. at 174.

                              II

                              A

        We agree with the District Courts that § 922(g)(1) is
unconstitutional as applied to Binderup and Suarez. As far as
the historical justification for felon dispossession goes, we
explained it in Barton: the time-honored principle that the
right to keep and bear arms does not extend to those likely to
commit violent offenses. Because the Supreme Court
declined to “expound upon the historical justifications” for


have been called for were courts required to assess § 925(c)
petitions in the first instance. Reviewing an as-applied
constitutional challenge based on facts alleged by a
challenger and weighing those facts against competing
evidence proffered by the Government is not only something
courts are equipped to do, it is our constitutional duty. See
U.S. Const. arts. III and VI, cl. 2; Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 178 (1803).



                              23
the list of presumptively lawful firearm exclusions in Heller,
554 U.S. at 627 n.26, 635—leaving that task to us—Barton’s
rationale warrants further explication. As stated, Heller
instructs that the public understanding of the scope of the
right to keep and bear arms at the time of the Second
Amendment’s enactment dictates the scope of the right today.
Id. at 605. In undertaking this inquiry, we are reminded that
“[h]istorical analysis can be difficult; it sometimes requires
resolving threshold questions, and making nuanced judgments
about which evidence to consult and how to interpret it.”
McDonald, 561 U.S. at 803–04 (Scalia, J., concurring).

       The most germane evidence available directly supports
the conclusion that the founding generation did not
understand the right to keep and bear arms to extend to
certain categories of people deemed too dangerous to possess
firearms. At the Pennsylvania ratifying convention,
Constitutionalists and other opponents of the Federalists
proposed language stating that “no law shall be passed for
disarming the people or any of them unless for crimes
committed, or real danger of public injury from individuals.”
The Address and Reasons of Dissent of the Minority of the
Convention of Pennsylvania to their Constituents, reprinted
in Bernard Schwartz, 2 The Bill of Rights: A Documentary
History 662, 665 (1971) (emphasis added). Likewise, at the
Massachusetts ratifying convention just months later, Samuel
Adams offered a proposal that the “Constitution be never
construed to authorize Congress . . . to prevent the people of
the United States, who are peaceable citizens, from keeping
their own arms.” Journal of Convention: Wednesday
February 6, 1788, reprinted in Debates and Proceedings in
the Convention of the Commonwealth of Massachusetts Held
in the Year 1788, at 86 (Boston, William White 1856)




                             24
(emphasis added). And the New Hampshire convention
proposed that “Congress shall never disarm any Citizen
unless such as are or have been in Actual Rebellion.”
Schwartz, 2 The Bill of Rights: A Documentary History at
761.

        These proposals show that there was broad consensus
between Federalists and their opponents on the existence and
nature of the “natural right” to keep and bear arms for
defensive purposes; what was controversial was whether the
Constitution required a Bill of Rights to ensure the right to
keep and bear arms (as so-called Anti-Federalists contended)
or whether such an explicit guarantee was unnecessary in
light of Congress’s limited delegated powers and might in
fact backfire by minimizing other, unenumerated liberties (as
Federalists argued). See Stephen P. Halbrook, The Founders’
Second Amendment 190–215 (surveying the debates at the
ratifying conventions and highlighting the commonplace
understanding that “dangerous persons could be disarmed”).
Indeed, it is telling that in the crucibles of the ratifying
conventions, such public declarations of the scope of the right
to keep and bear arms did not provoke any apparent
disagreement. See id. As we summarized in Barton, the
“[d]ebates from the Pennsylvania, Massachusetts and New
Hampshire ratifying conventions, which were considered
‘highly influential’ by the Supreme Court in Heller . . .
confirm that the common law right to keep and bear arms did
not extend to those who were likely to commit violent
offenses.” 633 F.3d at 174. Hence, the best evidence we have
indicates that the right to keep and bear arms was understood
to exclude those who presented a danger to the public.

      A number of firearms restrictions from the founding
and pre-founding era support this conclusion. Aside from



                              25
“complete bans on gun ownership by free blacks, slaves,
Native Americans, and those of mixed race” (each of which
today would be plainly unconstitutional), the founding
generation also disarmed those who refused to pledge their
loyalty to the Revolution, state, or nation. Adam Winkler,
Heller’s Catch-22, 56 UCLA L. Rev. 1551, 1562 (2009). As
the Fifth Circuit has explained, “[a]lthough these Loyalists
were neither criminals nor traitors, American legislators had
determined that permitting these persons to keep and bear
arms posed a potential danger.” Nat’l Rifle Ass’n of Am., Inc.
v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700
F.3d 185, 200 (5th Cir. 2012); see also United States v.
Carpio-Leon, 701 F.3d 974, 980 (4th Cir. 2012) (noting that
Massachusetts required participants in Shays’ Rebellion to
obtain a pardon for taking up arms against the state, to swear
allegiance to the state, and to give up their firearms for three
years). This principle had some roots in the English arms
tradition, wherein the Crown had the authority “to disarm not
only papists, but dangerous and disaffected persons as well.”
Patrick J. Charles, “Arms for Their Defence”?: An Historical,
Legal, and Textual Analysis of the English Right to Have
Arms and Whether the Second Amendment Should Be
Incorporated in McDonald v. City of Chicago, 57 Clev. St. L.
Rev. 351, 382 (2009); cf. Robert H. Churchill, Gun
Regulation, the Police Power, and the Right to Keep Arms in
Early America: The Legal Context of the Second Amendment,
25 L. & Hist. Rev. 139, 164 (2007) (noting that although
“English law supplied ample precedent” to disarm
“‘dangerous’ citizens,” the power was rarely practiced by
early American governments). In short, “from time
immemorial, various jurisdictions recognizing a right to arms
have . . . taken the step of forbidding suspect groups from
having arms,” and “American legislators at the time of the




                              26
Bill of Rights seem to have been aware of this tradition.” Don
B. Kates & Clayton E. Cramer, Second Amendment
Limitations and Criminological Considerations, 60 Hastings
L.J. 1339, 1360 (2009); see also Marshall, 32 Harv. J.L. &
Pub. Pol’y at 711–12 (examining later laws (upheld in courts)
barring possession of firearms while intoxicated and
possession of firearms by “tramps” (roaming beggars) and
construing them in terms of the “present danger” of
misconduct presented by such persons were they to carry
firearms).

       Although the debates from the ratifying conventions
point strongly toward a limit on Second Amendment rights
centered on dangerousness, dispossessory regulations enacted
to that end were few and far between in the first century of
our Republic. Consequently, some have reckoned that “[t]he
historical evidence” regarding the scope of the Second
Amendment “is inconclusive at best.” United States v. Skoien,
614 F.3d 638, 650 (7th Cir. 2010) (en banc) (Sykes, J.,
dissenting). We disagree. Even though “[t]he Founding
generation had no laws . . . denying the right [to keep and
bear arms] to people convicted of crimes,” Winkler, 56
UCLA L. Rev. at 1563, novelty does not mean
unconstitutionality. After all, “[t]he paucity of eighteenth
century gun control laws might have reflected a lack of
political demand rather than constitutional limitations.”
Nelson Lund, The Second Amendment, Heller, and
Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1354
(2009).

       Thus, a common thread running through the words and
actions of the Founders gives us a distinct principle to inform
our understanding of the original public meaning of the text
of the Second Amendment. See, e.g., Marshall, 32 Harv. J.L.



                              27
& Pub. Pol’y at 698 (“[A]ctual ‘longstanding’ precedent in
America and pre-Founding England suggests that a firearms
disability can be consistent with the Second Amendment to
the extent that . . . its basis credibly indicates a present danger
that one will misuse arms against others and the disability
redresses that danger.”); id. at 727–28 (“[T]o the extent that
one can distill any guidance from the English disability and
the Revolutionary disarmament, it would seem at most to be
that persons who by their actions—not just their thoughts—
betray a likelihood of violence against the state may be
disarmed.”); Stephen P. Halbrook, What the Framers
Intended: A Linguistic Analysis of the Right to ‘Bear Arms’,
49 Law & Contemp. Probs. 151, 161 (1986) (concluding that
“violent criminals, children, and those of unsound mind may
be deprived of firearms” (emphasis added)). In sum, the
historical record leads us to conclude that the public
understanding of the scope of the Second Amendment was
tethered to the principle that the Constitution permitted the
dispossession of persons who demonstrated that they would
present a danger to the public if armed. 14


       14
          In arguing generally that all persons with criminal
records are not entitled to Second Amendment rights, the
Government and the Dissent emphasize the fact that “[w]e as
a society require persons convicted of crimes to forfeit any
number of rights and privileges, including the right to sit on a
jury, the right to hold elective office, and the right to vote.”
Dissent at 2. But these forfeitable rights have different
histories and different constitutional dimensions. Consider the
right to vote, which like the right to keep and bear arms has
been declared fundamental by the Supreme Court. See
Reynolds v. Sims, 377 U.S. 533, 561–62 (1964). Although the



                                28
Supreme Court has concluded that the Fourteenth
Amendment’s Equal Protection Clause does not require states
to advance a compelling interest before denying citizens who
have been convicted of crimes the right to vote, Richardson v.
Ramirez, 418 U.S. 24, 54 (1974), that result was demanded by
the Constitution’s text. Specifically, the Court relied on the
“understanding of those who adopted the Fourteenth
Amendment, as reflected in [ ] express language” of Section 2
of the Fourteenth Amendment that affirmatively contemplates
criminal disenfranchisement, despite Section 1’s guarantee of
equal protection of the laws. Id. Accordingly, felons fall
outside the scope of the fundamental right to vote. See Wesley
v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (“[T]he right
of felons to vote is not fundamental.”). Probably due to the
breadth of this exclusion from the right to vote, the Supreme
Court has not indicated that a disenfranchised criminal might
succeed in demonstrating that such disenfranchisement is
unconstitutional as applied to him in light of the historical
understanding of the right. Rather, a challenger’s only option
is to show that a particular disenfranchisement provision is
either irrational or discriminatory. Richardson, 418 U.S. at
56; Hunter v. Underwood, 471 U.S. 222, 233 (1985). Thus,
the scope of the right to vote is historically and textually
distinct from the Second Amendment right.
        Nor do limits on jury service or eligibility for public
office offer any insight into the scope of the Second
Amendment, not least because they are not fundamental
rights. See Carter v. Jury Comm’n of Greene Cnty., 396 U.S.
320, 332 (1970) (“The States remain free to confine the
selection to citizens, to persons meeting specified
qualifications of age and educational attainment, and to those
possessing good intelligence, sound judgment, and fair



                              29
        Section 922(g)(1) sweeps much more broadly than this
traditional ground for disarmament. See Barton, 633 F.3d at
173 (“Although 18 U.S.C. § 922(g) was meant to keep
firearms out of the hands of presumptively risky people,
Congress did not bar non-violent felons from possessing guns
until 1961.”) (internal quotation marks and citation omitted);
United States v. Booker, 644 F.3d 12, 24 & n.14 (1st Cir.
2011) (“[I]n covering only those with a record of violent
crime, § 922(g)(9) [(dispossession of domestic violence
misdemeanants)] is arguably more consistent with the
historical regulation of firearms than § 922(g)(1),” which
“applies to all individuals convicted of a federal felony, thus
encompassing individuals convicted of crimes as disparate as
tax evasion and bank robbery. This breadth, and particularly
the inclusion of nonviolent offenses, constitutes a significant
departure from earlier understandings of a ‘felony.’ At
common law, for example, ‘[o]nly the most serious crimes’
were considered to be felonies.” (internal citations omitted));
supra n.14. The upshot of all this is that the as-applied


character.”); James M. Binnall, Sixteen Million Angry Men:
Reviving A Dead Doctrine to Challenge the Constitutionality
of Excluding Felons from Jury Service, 17 Va. J. Soc. Pol’y &
L. 1, 3 (2009) (“The Supreme Court does not recognize the
right to sit on a jury as fundamental.”); Lindsay v. Bowen, 750
F.3d 1061, 1064 (9th Cir. 2014) (noting that there is no
“fundamental right to run for public office”); U.S. Const. art.
I, § 2, cl. 1; U.S. Const. amend. X.
        These defeasible civil rights cannot be invoked to
justify disarming Binderup and Suarez. They are different
rights, with different histories and scopes, subject to different
constitutional analyses.



                               30
constitutionality of § 922(g)(1) is tied to its historical
justification: people who have demonstrated that they are
likely to commit violent crimes have no constitutional right to
keep and bear arms. 15

                               B

       The Government’s divergent reading of the historical
scope of the Second Amendment—also adopted in different
ways by Judges Ambro and Fuentes—is unconvincing.
Relying on the republican notion of “civic virtue,” the
Government maintains that Binderup’s and Suarez’s
misdemeanor convictions place them outside the class of
“those members of the polity who were deemed capable of
exercising [the right to keep and bear arms] in a virtuous
manner.” Gov’t Suarez Br. 14 (quoting Saul Cornell, “Don’t
Know Much about History”: The Current Crisis in Second
Amendment Scholarship, 29 N. Ky. L Rev. 657, 679 (2002)).
To be sure, “[s]ome scholarship suggests that at the time of
the nation’s founding, the right to bear arms was not
understood to extend to those convicted of a felony, either
because they were not believed to be among ‘the people’
whose right to bear arms was protected, or because they

       15
          This rationale is consonant with the governmental
interest usually offered today as justification for
dispossession: public safety. But the traditional principle that
constrained the class of persons not entitled to keep and bear
arms still governs. See Heller, 554 U.S. at 634–35
(“Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that
scope too broad.”).



                              31
lacked the requisite ‘virtue’ necessary for firearm
possession.” Alexander C. Barrett, Note, Taking Aim at
Felony Possession, 93 B.U. L. Rev. 163, 194–95 & n.197
(2013) (citing Don B. Kates, Jr., The Second Amendment: A
Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986) (offering
that the right to keep and bear arms was tied to the idea of the
“virtuous citizen,” such that “the right to arms does not
preclude laws disarming the unvirtuous (i.e., criminals) or
those who, like children or the mentally unbalanced, are
deemed incapable of virtue”)); see also Don B. Kates, Jr. &
Clayton E. Cramer, Second Amendment Limitations and
Criminological Considerations, 60 Hastings L.J. 1339, 1360
(2009) (“[T]here is every reason to believe that the Founding
Fathers would have deemed persons convicted of any of the
common law felonies not to be among ‘the [virtuous] people’
to whom they were guaranteeing the right to arms.”)
(alteration in original).

        This “virtue” standard—especially in the pliable
version articulated by the Government—is implausible
because the “civic republican” view of the scope of the
Second Amendment is wrong. Although courts, scholars, and
litigants have cited this supposed limitation, 16 this virtuous-


       16
           See, e.g., United States v. Yancey, 621 F.3d 681,
684–85 (7th Cir. 2010) (per curiam) (“Whatever the pedigree
of the rule against even nonviolent felons possessing weapons
. . . most scholars of the Second Amendment agree that the
right to bear arms was tied to the concept of a virtuous
citizenry and that, accordingly, the government could disarm
‘unvirtuous citizens.’”) (cited in Govt. Binderup Br. 13 and
Govt. Suarez Br. 13–14); United States v. Vongxay, 594 F.3d
1111, 1118 (9th Cir. 2010) (“[W]e observe that most scholars



                              32
citizens-only conception of the right to keep and bear arms is
closely associated with pre-Heller interpretations of the


of the Second Amendment agree that the right to bear arms
was ‘inextricably . . . tied to’ the concept of a ‘virtuous
citizen[ry]’ that would protect society through ‘defensive use
of arms against criminals, oppressive officials, and foreign
enemies alike,’ and that ‘the right to bear arms does not
preclude laws disarming the unvirtuous citizens (i.e.
criminals).’ We recognize, however, that the historical
question has not been definitively resolved.” (internal
citations omitted)) (cited in Govt. Binderup Br. 12–13 and
Govt. Suarez Br. 13–14).
        Yancey relies on a 19th century treatise by Thomas M.
Cooley for the proposition that the Constitution “protect[s]
rights for “the People” excluding, among others, “the idiot,
the lunatic, and the felon.” 621 F.3d at 685 (citing Cooley, A
Treatise on Constitutional Limitations 29 (Boston, Little
Brown & Co. 1868)). But this interpretation of Cooley’s
Treatise has been thoroughly debunked (and, indeed, already
had been prior to Yancey’s publication). See Marshall, 32
Harv. J.L. & Pub. Pol’y at 709–10 (“The . . . discussion in
Cooley [cited for felon dispossession] . . . concerns classes
excluded from voting. These included women and the
property-less—both being citizens and protected by arms
rights. When Cooley does address the right to keep and bear
arms, one finds this: ‘[H]ow far it may be in the power of the
legislature to regulate the right we shall not undertake to say.
Happily there neither has been, nor, we may hope, is likely to
be, much occasion for the examination of that question by the
courts.’”) (quoting Cooley, Treatise at 499 (Victor H. Lane
ed., 7th ed. 1903)).



                              33
Second Amendment by proponents of the “sophisticated
collective rights model” who rejected the view that the
Amendment confers an individual right and instead
characterized the right as a “civic right . . . . exercised by
citizens, not individuals . . . who act together in a collective
manner, for a distinctly public purpose: participation in a well
regulated militia.” Saul Cornell & Nathan DeDino, A Well
Regulated Right: The Early American Origins of Gun
Control, 73 Fordham L. Rev. 487, 491–92 (2004). 17

        Moreover, this supposed limitation on the Second
Amendment stems from a misreading of an academic debate
about “ideological interpretation,” Cornell & DeDino, 73
Fordham L. Rev. at 528 n.29, the gist of which concerns the
extent to which the Founders were civic republicans or
libertarians as well as what bearing these ideologies might
have had on how they understood the right to keep and bear
arms. See Robert E. Shalhope, The Ideological Origins of the
Second Amendment, 69 J. Am. Hist. 599, 599–601 (1982) (the
article that served as contemporary scholars’ principal source

       17
          Cf. Parker v. District of Columbia, 478 F.3d 370,
378 (D.C. Cir. 2007), aff’d sub nom. Heller, 554 U.S. 570
(rejecting the view that “the Second Amendment protects
private possession of weapons only in connection with
performance of civic duties as part of a well-regulated citizens
militia organized for the security of a free state” (second
emphasis added, internal quotation marks omitted)); David T.
Hardy, 15 Wm. & Mary Bill Rts. J. 1237, 1241–84 (2007)
(reviewing Saul Cornell, A Well-Regulated Militia: The
Founding Fathers and the Origin of Gun Control in America
(2006)) (marshaling considerable historical evidence against
Cornell’s “civic right only” approach).



                              34
for the “virtuousness” limitation). Unfortunately, this
literature sheds no light on “who” was thought to enjoy the
right to keep and bear arms (at least, none beyond the now-
settled individual-versus-collective right interpretation).
Rather, it relates to the rationale for having a right to keep
and bear arms in the first place. See id. at 606–07
(characterizing the right to keep and bear arms as one with
both individual- and collective-right elements and claiming
that the Founders’ unique blend of republicanism and
libertarianism led them to “perceive[] a vital relationship
between vigorous republican husbandmen and the possession
of arms” and believe that a “man capable of defending
himself with arms if necessary was prerequisite for
maintaining the moral character to be a good republican”);
Robert E. Shalhope, The Armed Citizen in the Early Republic,
49 L. & Contemp. Probs. 125, 132 (1986) (explaining that
strains of civic republicanism in early-American culture
viewed arms possession as critical to the virtue of the
citizenry and the spirit of the state, but never characterizing
the possession of virtue as a prerequisite to arms rights).

         This literature does not help us identify the types of
people who were not entitled to exercise Second Amendment
rights. 18 Contemporary advocates of a “virtuousness”

      18
         Not least because it rests largely on a theoretical
foundation that the Supreme Court has twice now rejected.
See Heller, 554 U.S. at 595; McDonald, 561 U.S. at 767–68.
And as at least one scholar has surmised: “[i]f the Second
Amendment does provide a right to own guns for self-
defense, republicanism cannot supply the intellectual
foundation for it.” Williams, 101 Yale L.J. at 559 (emphasis
added).



                              35
limitation have projected that constraint onto the right to keep
and bear arms based on the fact that the very existence of the
right was informed by republican philosophical principles. 19
That is not enough. We have found no historical evidence on
the public meaning of the right to keep and bear arms
indicating that “virtuousness” was a limitation on one’s
qualification for the right—contemporary insistence to the
contrary falls somewhere between guesswork and ipse dixit.

       Furthermore, it is hard to understand what the
Government’s proposed “virtuousness” limitation would even
require. The Government has offered no guidance in this
regard, except to urge that we defer to legislative judgments
about what sorts of offenses or characteristics render one
insufficiently “virtuous” to enjoy a fundamental right. The
Dissent and to a lesser extent Judge Ambro have accepted this
approach. The legislative judgments set forth in the margin
are but a few illustrations of its deep flaws. 20 We doubt the

       19
           One of the primary proponents of this school of
thought has conceded that “[h]istorical scholarship has
abandoned the notion that American political culture can be
understood in terms of any single ideological tradition, and
has embraced a more pluralistic conception of the intellectual
world of the founders,” though he remains a devotee of the
civic-virtue limitation. Cornell & DeDino, 73 Fordham L.
Rev. at 492.
       20
          Were we to adopt the Government’s proposed
standard, consider a few examples of offenses that would
(and currently do) render one permanently disqualified from
possessing firearms. In Arizona, simple possession of any
amount of marijuana is a felony punishable by enough jail
time that any conviction triggers § 922(g)(1). See Ariz. Rev.



                              36
Stat. Ann. § 13-3405. As the Government would have it, the
last three Presidents of the United States would have been
forever barred from possessing firearms had their youthful
indiscretions been prosecuted in the Copper State. Or
consider Michigan, which has a generous (10-cents-per-
container) repayment policy for recyclable cans and bottles
returned to the state—so long as the beverage containers were
purchased in state. But one who returns out-of-state
containers is subject to a felony count of beverage return of
nonrefundable bottles punishable by up to five years’
imprisonment (thus disabling the conniving interstate recycler
under § 922(g)(1)). See Mich. Comp. Laws Ann.
§ 445.574a(1)(d). This spells disqualification for Kramer,
Newman, and at least one recent real-life offender. See
Seinfeld: The Bottle Deposit (NBC television broadcast May
2, 1996); Seinfeld-inspired ‘Michigan bottle deposit scam’
lands Kramer wannabe in hot water (RT America Jun. 15,
2016), available at https://www.rt.com/viral/346835-seinfeld-
michigan-bottle-deposit/.      Finally,    library   theft   in
Pennsylvania constitutes a (federally disabling) misdemeanor
of the first degree—punishable by up to five years’
imprisonment—if the value of the material is $150 or more.
18 Pa. Stat. and Cons. Stat. Ann. § 3929.1. These examples
illustrate the saliency of Heller’s admonition that
“[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them, whether or
not future legislatures . . . think that scope too broad.” 554
U.S. 634–35. We would contravene this instruction and set
dangerous precedent for other constitutional rights were we to
blithely accept that “[i]f the citizens of a particular state
believe that a criminal offense is too minor to trigger
disarmament, their remedy is to petition the state legislature



                              37
to amend the law—not to seek redress in the federal courts.”
Dissent at 61.
        The Government’s theory is all the more questionable
when analogized to other constitutional rights, such as the
First Amendment’s free-speech guarantee. Like limitations on
the scope of the Second Amendment, the unprotected status
of obscenity, fighting words, and the like is rooted in our
history. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,
383 (1992). These free-speech exceptions mean that while
Congress can sharply restrict speech that amounts to
obscenity or fighting words as traditionally understood, it
may not substantially redefine what counts as obscenity or
fighting words in order to reach otherwise protected
expression. See, e.g., Speiser v. Randall, 357 U.S. 513, 525
(1958) (“[T]he line between speech unconditionally
guaranteed and speech which may legitimately be regulated,
suppressed, or punished is finely drawn.”); Cantwell v.
Connecticut, 310 U.S. 296, 304 (1940) (“[T]he power to
regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom.”);
Gooding v. Wilson, 405 U.S. 518, 521–25 (1972) (statute that
state claimed would only reach “fighting words” was
unconstitutionally overbroad where its terms criminalized
expression that a listener would find merely offensive or
insulting). For instance, it would be plainly unconstitutional
for a legislature to redefine “obscenity” in order to capture
expression that would otherwise escape the traditional scope
of obscenity as defined by the Supreme Court. See Janicki v.
Pizza, 722 F.2d 1274, 1276 (6th Cir. 1983); Ashcroft v. Free
Speech Coal., 535 U.S. 234, 256 (2002). In other words, the
historical scope of the First Amendment—not Congress—
determines the parameters of the right.



                             38
Founders designed a fundamental constitutional right to turn
on such vagaries. Although it “befits a diverse nation of fifty
sovereign States and countless municipalities . . . [that] gun
regulation in the United States resembles a patchwork quilt
that largely reflects local custom,” Drake v. Filko, 724 F.3d
426, 440 (3d Cir. 2013) (Hardiman, J., dissenting), to make
an individual’s entitlement to the Second Amendment right
itself turn on the predilections of the legislature governing his
or her patch is deference the Constitution won’t bear. See
McDonald, 561 U.S. at 750 (holding that “the Second
Amendment right is fully applicable to the States” (emphasis
added)).


        The import of this analogy for the Second Amendment
is straightforward: although certain types of criminals are
excluded from the right to keep and bear arms, this traditional
limitation on the scope of the right may not be expanded by
legislative fiat. To hold otherwise would treat the Second
Amendment “as a second-class right, subject to an entirely
different body of rules than the other Bill of Rights
guarantees.” McDonald, 561 U.S. at 780 (plurality opinion).
The historical record indicates that the right to keep and bear
arms was publicly understood at the time of the Constitution’s
enactment to secure a broadly held natural right that did not
extend to violent criminals. To redefine the type of “criminal”
that would qualify for dispossession via a malleable
“virtuousness” standard in order to capture former nonviolent
misdemeanants who are in all other respects indistinguishable
from normal, law-abiding citizens would be akin to redefining
“fighting words” to encompass run-of-the-mill “trash talk.”
The Constitution takes each of these temptations “off the
table.” Heller, 554 U.S. at 636.



                               39
       Even if we were to attempt to apply the notion of civic
virtue to felon dispossession, it is doubtful the Government
would prevail. Although felons at common law “were
essentially stripped of property and other rights,” the term
“felony” “applied only to a few very serious, very dangerous
offenses such as murder, rape, arson, and robbery”—in other
words, crimes closely associated with violence. Kates &
Cramer, 60 Hastings L.J. at 1362. But see Marshall, 32 Harv.
J.L. & Pub. Pol’y at 715–16 (casting doubt on the claim that a
felony     conviction    necessarily    entailed    permanent
dispossession). Indeed, one of the scholars cited by the
Government concludes that insofar as a statute “would seek to
bar arms possession by” persons who have been convicted of
a nonviolent “felony” in the modern sense, “those laws would
seem to be invalid.” Kates & Cramer, 60 Hastings L.J. at
1363. See Barrett, 93 B.U. L. Rev. at 196 (“[E]ven if some
felons were historically understood to be barred from
possessing firearms, the common law term ‘felony’ applied to
only a few select categories of serious crimes at the time the
Second Amendment was ratified, while in modern times, vast
categories of ‘non-dangerous’ activities qualify as
felonious.”); Marshall, 32 Harv. J.L. & Pub. Pol’y at 729–30
(explaining that the first federal felony dispossession laws
applied only to a core group of crimes including “murder,
manslaughter, rape, mayhem, aggravated assault . . . robbery,
burglary, housebreaking, and attempt to commit any of these
crimes”). And at least one of our sister courts faced with the
virtuousness argument treated “virtue” as basically
synonymous with “non-dangerous.” See United States v. Rene
E., 583 F.3d 8, 16 (1st Cir. 2009) (“To be sure, there is an
ongoing debate among historians about the extent to which
the right to bear arms in the founding period turned on
concerns about the possessor’s ‘virtue,’ i.e., on a legislative




                              40
judgment that possession of firearms by a certain class of
individuals would pose a serious danger to the public.”
(emphasis added)). Accordingly, we reject the Government’s
suggestion that Second Amendment protections are limited
“to those members of the polity who were deemed capable of
exercising [the right to keep and bear arms] in a virtuous
manner.” Gov’t Suarez Br. 14.

                             C

        All this means that Binderup and Suarez must
distinguish themselves and their circumstances from those of
persons not entitled to keep and bear arms because of their
propensity for violence. And as the District Courts found,
both men did so. Specifically, each is a misdemeanant
convicted of a non-violent crime who has shown “that he is
no more dangerous than a typical law-abiding citizen.” See
Barton, 633 F.3d at 174. While we agree with the
Government that the felony-misdemeanor distinction is
“minor and often arbitrary,” especially since “numerous
misdemeanors involve conduct more dangerous than many
felonies,” Gov’t Binderup Br. 19 and Gov’t Suarez Br. 18
(quoting Tennessee v. Garner, 471 U.S. 1, 14 (1985)), that is
beside the point here. Our focus must remain on the
legitimate (i.e., traditional) concern that justifies the
dispossession of certain offenders: we cannot trust them not
to commit violent crimes with firearms. The Government
concedes that “the Supreme Court might find some felonies
so tame and technical as to be insufficient to justify the
ban,” 21 Gov’t Binderup Br. 15 and Gov’t Suarez Br. 15

      21
          The Dissent acknowledges this view, but expresses
confidence that “institutional considerations” will prevent
particularly absurd disarmaments. Dissent at 61. In our view,



                             41
(quoting United States v. Torres-Rosario, 658 F.3d 110, 113
(1st Cir. 2011)), but it insists that Binderup’s and Suarez’s
misdemeanors do not qualify. We disagree.

       For purposes of the traditional justifications animating
§ 922(g)(1), both Binderup’s corruption of minors offense
and Suarez’s licensing violation were nonviolent
misdemeanors. In Barton, we described the violent crimes of
the sort that motivated felon dispossession since 1938 in the
following way: “For nearly a quarter century, § 922(g)(1) had
a narrower basis for a disability, limited to those convicted of
a ‘crime of violence.’ ‘Crimes of violence’ were commonly
understood to include only those offenses ‘ordinarily
committed with the aid of firearms.’” Barton, 633 F.3d at 173
(quoting Marshall, 32 Harv. J.L. & Pub. Pol’y at 698, 702
(2009)) (some internal quotation marks omitted); see also
United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013)
(noting that the “Federal Firearms Act of 1938 only restricted
firearm possession for those individuals convicted of a ‘crime
of violence,’ defined as ‘murder, manslaughter, rape,
mayhem, kidnapping, burglary, housebreaking, and certain
forms of aggravated assault—assault with intent to kill,
commit rape, or rob; assault with a dangerous weapon, or
assault with intent to commit any offense punishable by
imprisonment for more than one year’”). Dispossession on the
basis of a conviction for these sorts of crimes comports with
the original public understanding of the scope of the right to
keep and bear arms.




questionable disarmaments raise questions of constitutional
law.



                              42
       Neither Binderup’s improper relationship with an
employee capable of consent nor Suarez’s possession of a
handgun that he could have possessed lawfully had he
acquired a license meets this description. Nor did their
offenses involve any actual violent behavior. It is true that a
small handful of States would classify Binderup’s offense as
statutory rape 22 or sexual abuse. And there are certainly
circumstances in which an inappropriate and illegal
relationship like Binderup’s might involve implicit or genuine
violence. Such facts would make his a much different case.
But as the District Court explained:

      There is simply nothing in the record here
      which would support a reasonable inference that
      [Binderup] used any violence, force, or threat of
      force to initiate or maintain the sexual
      relationship with his seventeen-year-old
      employee. Moreover, there is no record
      evidence present here which would support a
      reasonable inference that [he] was convicted of
      any crime of violence (or that he even engaged
      in any violent or threatening conduct) before or
      after his November 1997 conviction for
      [c]orruption of minors.


      22
         As the District Court pointed out, however, Black’s
Law Dictionary “defines ‘statutory rape’ as ‘[u]nlawful
sexual intercourse with a person under the age of consent (as
defined by statute), regardless of whether it is against that
person’s will.’” Binderup v. Holder, 2014 WL 4764424, at
*24 (E.D. Pa. Sept. 25, 2014) (quoting Black’s Law
Dictionary 1374 (9th ed. 2009)) (emphasis added).



                              43
Binderup, 2014 WL 4764424, at *22. Nor is there any “record
evidence [that] supports a reasonable inference that he has a
propensity to commit violent acts, sexual or otherwise.” Id. at
*23. In a real stretch, the Government likens Binderup’s
conduct to that which was felonized by a 1576 English statute
that forbade “carnal[] knowl[edge]” of “any woman child
under the age of ten years.” Gov’t Binderup Br. 15–16
(quoting Mortimer Levine, A More Than Ordinary Case of
“Rape,” 13 and 14 Elizabeth I, 7 Am. J. Legal Hist. 159, 163
(1963)). Deplorable as it was, however, Binderup’s conduct
involved a seventeen-year-old capable of consent, 23 was not
subject to criminal sanction at the time of the founding, and—
most importantly—did not involve violence, force, or threat
of force.

       The nonviolent nature of Suarez’s offense is evident as
well. The Government’s unremarkable observation that
Maryland’s licensing requirement relates to public safety does
not make Suarez’s offense a violent crime. It neither involved
the actual use or threatened use of force, nor was it “closely
related to violent crime” in the way that drug trafficking and
receiving stolen weapons are. See Barton, 633 F.3d at 174.
Heller characterized the Second Amendment as guaranteeing
“the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” 554 U.S. at 635 (emphasis
added). The Government relies on the Fourth Circuit’s

      23
           Cf. Commonwealth v. Hughlett, 378 A.2d 326, 329
(Pa. Super. 1977) (noting that “[i]t is axiomatic that females
under the age of 16 may not legally assent to sexual acts of
. . . any kind”).



                              44
decision in United States v. Pruess to argue that Suarez’s
violation of a lawful, well-established firearm regulation
demonstrates that he is not a responsible, law-abiding citizen.
That reliance is misplaced.

       In Pruess, the Fourth Circuit rejected an as-applied
challenge to § 922(g)(1) by a felon whose disqualifying
convictions related to his prior sales of illegal arms,
concluding that Pruess could not “rebut the presumption of
lawfulness of the felon-in-possession prohibition as applied to
him.” 703 F.3d 242, 246 (4th Cir. 2012). Although Pruess,
like Suarez, had committed regulatory violations, his
circumstances were dissimilar from Suarez’s in every other
way. For example, Pruess had committed “repeated violations
of the firearms laws, leading to at least twenty prior
convictions,” and admitted that although he “did not intend to
use them for violence himself . . . he believed that [certain]
weapons and ammunition underlying his convictions were
stolen.” Id. His repeated dealings in stolen, illegal weapons—
such as fully automatic AK-47’s and grenades—appropriately
led the court to conclude that Pruess had committed acts
“closely related to violent crime” and “flunk[ed] the ‘law-
abiding responsible citizen’ requirement.” Id. at 244, 246.
Suarez, by comparison, committed a nonviolent firearms
licensing offense with respect to an otherwise lawful weapon
decades ago, the circumstances of which were unassociated
with violence. 24


      24
          A number of other cases have applied Barton in
rejecting as-applied challenges to § 922(g)(1). Like Pruess,
the challengers in those cases have little in common with
Suarez. See United States v. Moore, 666 F.3d 313, 319–20
(4th Cir. 2012) (“[T]hree prior felony convictions for



                              45
        In addition to showing that neither their offenses nor
the circumstances surrounding them involved any violence or
threat of violence, Binderup and Suarez have also
demonstrated that their subsequent behavior confirms their
membership among the class of responsible, law-abiding
citizens to whom Second Amendment protection extends. As
the District Courts found, both men presented compelling
evidence that they are responsible citizens, each with a job, a
family, and a clean record since 1997 and 1998. Their home
State has seen fit to reinstate their right to keep and bear arms.
And though it’s by no means dispositive in Suarez’s case, the
fact that the United States deems him upright enough to
entrust him with the Nation’s secrets is further evidence that
he is a “typical law-abiding citizen.” Barton, 633 F.3d at 174.

       The Government has presented no evidence that either
Binderup or Suarez has been, or would be, dangerous, violent,
or irresponsible with firearms. 25 For all these reasons, the

common law robbery and two prior convictions for assault
with a deadly weapon on a government official clearly
demonstrate that [Moore] is far from a law-abiding,
responsible citizen.”); United States v. Smoot, 690 F.3d 215,
221–22, 221 & n.8 (4th Cir. 2012) (32 arrests and 16
convictions for offenses such as assault of a police officer,
possession of cocaine with intent to distribute, and destruction
of property); United States v. Woolsey, 759 F.3d 905, 909
(8th Cir. 2014) (three prior felony convictions for aggravated
assault and resisting arrest).
       25
         To be sure, Suarez’s 1998 DUI conviction was a
dangerous act—but not in the sense of the traditional
concerns motivating felon dispossession. See, e.g., Begay v.
United States, 553 U.S. 137, 145 (2008) (holding that drunk



                               46
District Courts did not err when they found § 922(g)(1)
unconstitutional as applied to Binderup and Suarez.

                              D

       The Government cites a number of recidivism studies
as a final justification for permanently disarming Binderup
and Suarez. It notes that felons commit violent crimes more
frequently than nonfelons. See Bureau of Justice Statistics,
U.S. Dep’t of Justice, Recidivism of Prisoners Released in
1994 at 6 (2002) (finding that, within a population of 234,358
federal inmates released in 1994, the rates of arrest for
homicides were 53 times the national average). Relatedly, it
highlights a 1994 study finding that approximately one in five
offenders imprisoned for nonviolent crimes were rearrested
for violent offenses within three years of their release. See
Bureau of Justice Statistics Fact Sheet, Profile of Nonviolent
Offenders Exiting State Prisons, tbl.11 (Oct. 2004), available
at       http://bjs.gov/content/pub/pdf/pnoesp.pdf.        The
Government’s second piece of evidence is a study comparing
denials of handgun purchases to convicted felons with
successful purchases by persons arrested but not convicted of
a felony. The study found that the “denial of handgun
purchases is associated with a reduction in risk for later
criminal activity of approximately 20% to 30%.” Mona A.
Wright et al., Effectiveness of Denial of Handgun Purchase to
Persons Believed to Be at High Risk for Firearm Violence, 89
Am. J. of Pub. Health 88, 89 (1999).



driving is not a “violent felony” under the Armed Career
Criminal Act because it does not involve “purposeful, violent,
and aggressive conduct”).



                             47
        Finally, with respect to Binderup, it notes that “[s]ex
offenders” (which Binderup is not) “present a high risk of
recidivism.” Gov’t Binderup Br. 28 (citing Pennsylvania
Dep’t of Corrections, Recidivism Report, 21 tbl. 12 (Feb. 8,
2013),      available     at    http://www.nationalcia.org/wp-
content/uploads/2013-PA-DOC-Recidivism-Report.pdf)
(finding that 50 percent of persons convicted of statutory rape
and 60.2 percent of those convicted of “[o]ther [s]exual
[o]ffenses” were rearrested or reincarcerated within three
years of release from Pennsylvania prison) and U.S. Dep’t of
Justice, Office of Justice Programs, Bureau of Justice
Statistics Special Report: Recidivism of Prisoners Released in
1994,         8       tbls.9,       15,      available       at
http://www.bjs.gov/content/pub/pdf/rpr94.pdf (finding a 41.4
percent rearrest rate among persons convicted for “other
sexual assault”). And with respect to Suarez, the Government
emphasizes that persons arrested for “weapons offenses” are
rearrested at high rates within a few years. Gov’t Br. 30 & nn.
10–11 (citing studies). In addition, it relies upon a study
indicating that California handgun purchasers in 1977 “who
had prior convictions for nonviolent firearm-related offenses
such as carrying concealed firearms in public, but none for
violent offenses,” were over four times more likely to be
charged with a later violent offense than a person with no
criminal history. See Garen J. Wintemute et al., Prior
Misdemeanor Convictions as a Risk Factor for Later Violent
and Firearm-Related Criminal Activity Among Authorized
Purchasers of Handguns, 280 Am. Med. Ass’n 2083, 2086
(1998).

       The Government presents this evidence in its argument
that § 922(g)(1) satisfies intermediate scrutiny as applied to




                              48
Binderup and Suarez. 26 But as we have explained, that
inquiry is inappropriate in this case. Applying some form of

      26
           Applying intermediate scrutiny, the Dissent agrees
with the Government that—to the extent that Binderup and
Suarez are protected by the Second Amendment—their
permanent disarmament under § 922(g)(1) is a “‘reasonable
fit’ to carry out the Government’s purpose[s].” Dissent at 65.
Should we be incorrect that § 922(g)(1) is categorically
unconstitutional as applied to challengers who fall within the
protective scope of the Second Amendment, we find Judge
Ambro’s analysis more persuasive. Of course, the gap
between Judge Ambro’s and the Dissent’s applications of
Marzzarella’s “step two” assessment in this case highlights
our concern that such interest-balancing exercises are too
malleable when it comes to laws that eviscerate fundamental
rights. Indeed, we fear that the winners and losers of
“heightened” scrutiny contests are increasingly reflective of
what rights—enumerated or not—“scrutinizing” judges favor
or disfavor. As a Ninth Circuit judge presciently noted:
“Judges know very well how to read the Constitution broadly
when they are sympathetic to the right being asserted. . . .
When a particular right comports especially well with our
notions of good social policy, we build magnificent legal
edifices on elliptical constitutional phrases—or even the
white spaces between lines of constitutional text. But . . .
when we’re none too keen on a particular constitutional
guarantee, we can be equally ingenious . . . .” Silveira v.
Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J.,
dissenting from denial of rehearing en banc of a panel
decision adopting the “collective right” interpretation of the
Second Amendment), panel decision abrogated by Heller,
554 U.S. 570.



                             49
means-end scrutiny in an as-applied challenge against an
absolute ban—after it has already been established that the
individual has a right to keep and bear arms—eviscerates that
right via judicial interest balancing in direct contravention of
Heller. See McDonald, 561 U.S. at 785 (“In Heller . . . we
expressly rejected the argument that the scope of the Second
Amendment right should be determined by judicial interest
balancing.”). What matters, when it comes to a presumptively
lawful regulation that eliminates the right to keep and bear
arms, is whether Binderup and Suarez can distinguish
themselves as responsible, law-abiding citizens in contrast to
the class of persons historically understood to be excluded
from Second Amendment protection.

       Even if the Government’s generalized studies are
recast as addressing the issue of scope, 27 they still fall short.
Perhaps the Government might use statistics to demonstrate
that persons who commit certain nonviolent crimes have a
high likelihood of violent recidivism, even decades later. But
that conclusion would stretch the notion of “close
association” and the historical roots of felon disarmament.
Moreover, it would require untangling a number of
complicating variables, such as the effects of incarceration.
Recidivism studies of this type would be better suited to
demonstrating a means-end fit for less restrictive firearm
regulations on criminals otherwise protected by the Second
Amendment (such as waiting periods or licensing

       27
           Judge Gardner astutely observed that “the
contentions [that the Government] contend[s] these studies
support are . . . pertinent to the analysis of [an] as-applied
challenge under the Barton framework.” Binderup, 2014 WL
4764424, at *26.



                               50
requirements). Either way, the studies cited by the
Government don’t cut it.

        First, Binderup and Suarez were not convicted of
felonies and have never been incarcerated, which renders
irrelevant most of the Government’s studies. The Government
argues that even criminals placed on probation rather than
sent to prison have a heightened risk of recidivism. But the
study it cites found that “[g]enerally, the risk of recidivism
was highest during the first year after admission to
probation,” and that “[a]s released prisoners and probationers
age, they tend to exhibit lower rates of recidivism.” Iowa Div.
of Crim. & Juvenile Justice Planning, Recidivism Among
Iowa Probationers, at 2 (July 2005), available at
http://publications.iowa.gov/15032/ (last visited Sept. 3,
2016). Given Binderup’s and Suarez’s ages, the study cited
by the Government would predict that they pose a negligible
chance of being arrested for a violent crime and a zero
percent chance of being arrested for a violent felony. Id. at
39–40. Second, the denial-of-handgun survey was restricted
to felons with extensive criminal records and conceded not
only that the “modest benefit” it observed “may reflect the
fact that the members of both study groups had extensive
criminal records and therefore were at high risk for later
criminal activity,” but also that “this study was too small to
determine whether the differences occurred by chance.”
Wright et al., 89 Am. J. of Pub. Health at 89.

       Finally, the Government’s sex-offender recidivism
evidence paints with too broad a brush. Binderup’s
misdemeanor was not classified as a sexual offense and did
not trigger a duty to register as a sex offender. Compare 18
Pa. Const. Stat. Ann. § 6301(a)(1)(i), with 18 Pa. Const. Stat.
Ann. § 3103–3144. The report does not appear to cover



                              51
corruption-of-minors recidivists and lumps Binderup together
with an amalgam of persons guilty of a broad range of
unspecified sexual offenses. See U.S. Dep’t of Justice, Office
of Justice Programs, Bureau of Justice Statistics Special
Report: Recidivism of Prisoners Released in 1994, 8 tbls.9,
15. The same goes for the dated firearm-offense recidivism
study the Government invokes against Suarez, which covers a
wide, unspecified range of “nonviolent firearm-related
offenses.” Wintemute, 280 Am. Med. Ass’n at 2086.
Common sense dictates that violent recidivism rates are
different for drug dealers carrying unlicensed firearms to
protect their turf and ordinary citizens carrying unlicensed
firearms for self-defense (behavior that several states do not
even criminalize). See GAO, States’ Laws and Requirements
for Concealed Carry Permits Vary Across Nation 8–9 (2012),
available at http://www.gao.gov/assets/600/592552.pdf (last
visited Sept. 3, 2016).

       Without more, the Government’s studies don’t support
the application of § 922(g)(1) to Binderup and Suarez. Given
the uncontroverted evidence they have presented
distinguishing themselves from persons who are not entitled
to keep and bear arms, the Government needs to offer more
than regression analyses of recidivism (largely by felons who,
unlike Binderup and Suarez, were incarcerated). An as-
applied challenge ultimately rests on the question of whether
“application [of a statute] to a particular person under
particular circumstances deprive[s] that person of a
constitutional right.” Marcavage, 609 F.3d at 273 (emphases
added). Binderup and Suarez have presented unrebutted
evidence that their offenses were nonviolent and now decades
old, and that they present no threat to society, which places
them within the class persons who have a right to keep and




                             52
bear arms. Accordingly, 18 U.S.C.               § 922(g)(1)    is
unconstitutional as applied to them.

                        *      *       *

        In the years since the Supreme Court’s decision in
Heller, courts have had to wrestle with difficult Second
Amendment questions. Although these questions can be
challenging and the stakes high—the guarantee is one to
deadly weapons, after all—it is no answer to say that
legislatures “have near total control” over the right. Dissent at
61. That is not how constitutional rights work. Because their
personal circumstances are distinguishable from those of the
class of persons historically excluded from Second
Amendment protections due to their propensity for violence,
Daniel Binderup and Julio Suarez fall outside the proper
scope of the felon dispossession statute. And their Second
Amendment rights cannot be withdrawn merely because
§ 922(g)(1) broadly serves the public good. Where the
Second Amendment’s guarantees apply, as they do for
Binderup and Suarez, “certain policy choices” are
“necessarily” taken “off the table.” Heller, 554 U.S. at 636.
Forever prohibiting them from possessing any firearm is one
of those policy choices.




                               53
FUENTES, Circuit Judge, concurring in part, dissenting in
part, and dissenting from the judgments, with whom McKEE,
Chief Judge, and VANASKIE, SHWARTZ, KRAUSE,
RESTREPO, and ROTH, Circuit Judges, join.
                       _______________

       The plaintiffs ask us to do something that no federal
appellate court has done before: to hold that, even though
they were both convicted of crimes punishable by multiple
years in prison, Congress may not constitutionally prevent
them from owning firearms. They ask us to do this
notwithstanding a long tradition in this country of preventing
criminals from owning guns, and despite the fact that the
felon-in-possession statute, 18 U.S.C. § 922(g)(1), has been
in force for over half a century. 1 Most troubling of all, they

 1
     Section 922(g)(1) makes it “unlawful for any
person . . . who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.”
  Under 18 U.S.C. § 921(a)(20), “[t]he term ‘crime punishable
by imprisonment for a term exceeding one year’ does not
include . . . any State offense classified by the laws of the
State as a misdemeanor and punishable by a term of
imprisonment of two years or less.” We therefore refer to
§ 922(g)(1) as the “felon-in-possession” ban.          Courts
commonly use this shorthand even though the statute itself
does not use the term “felon,” and even though it includes
ask us to saddle district court judges with a seemingly
unending obligation to review as-applied challenges like
theirs, even as they fail to provide us with any workable
standards that would make such a regime administratively
feasible or doctrinally coherent.

        Judges Ambro and Hardiman believe that the Second
Amendment requires us to sustain the plaintiffs’ challenges,
although they arrive at that conclusion along different routes
and would shape our Second Amendment doctrine in
divergent ways. By contrast, I would hold that the plaintiffs’
as-applied challenges to § 922(g)(1) must fail. The Second
Amendment, important as it may be, does not prevent
Congress from deciding that convicted criminals should not
have access to firearms. We as a society require persons
convicted of crimes to forfeit any number of rights and
privileges, including the right to sit on a jury, the right to hold
elective office, and the right to vote. 2 However much the
plaintiffs may see unfairness in the fact that their law-abiding
peers can legally own firearms and they cannot, that disparity
is a consequence of their own unlawful conduct. Because I


within its scope certain individuals who committed offenses
labeled as “misdemeanors.” See, e.g., Logan v. United States,
552 U.S. 23, 27 (2007).
 2
   Nothing herein should be interpreted as taking any position
on the validity of statutes that deprive convicted felons of the
right to vote. The issue of felon disenfranchisement is not
presented here, and there may well be very different
considerations that distinguish a felon’s loss of the right to
vote from the loss of the right to possess a gun.




                                2
believe that the Second Amendment permits Congress to
disarm persons who commit serious crimes, and because
§ 922(g)(1) reasonably circumscribes what counts as such a
crime, I would reject the plaintiffs’ as-applied challenges and
reverse the judgments of the District Courts.

        What’s more, even if we were to apply intermediate
scrutiny to test the validity of § 922(g)(1), I would conclude
that the statute is reasonably tailored to promote the
substantial government interest of suppressing armed
violence.     Congress itself previously created and then
defunded an administrative regime for providing
individualized exceptions to the felon-in-possession ban. 3
When it terminated that program, it stated that the review of
such applications was “a very difficult and subjective task
which could have devastating consequences for innocent
citizens if the wrong decision is made,” 4 and warned that “too
many of these felons whose gun ownership rights were
restored went on to commit violent crimes with firearms.” 5
These congressional judgments stand in stark contrast to the
plaintiffs’ arguments. Congress has already experimented
with a system of what were, in effect, as-applied challenges
and concluded that it was unworkable and dangerous.

       I therefore concur with Judge Ambro’s opinion in part,
dissent from it in part, and dissent from the majority’s
decision to affirm the judgments of the District Courts.


 3
     See 18 U.S.C. § 925(c).
 4
     S. Rep. No. 102-353, at 19 (1992).
 5
     H.R. Rep. No. 104-183, at 15 (1995).




                                3
I.       The Current State of the Law Regarding
         Challenges to § 922(g)(1)

        No federal appellate court has yet upheld a challenge,
facial or as-applied, to the felon-in-possession statute. It may
therefore be helpful to begin by summarizing the Supreme
Court’s limited guidance on this issue and to explore how our
sister circuits have applied that guidance in the context of
§ 922(g)(1).

         A.        The Meaning of Heller

       The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” 6 The touchstone in any Second Amendment case
is District of Columbia v. Heller, 7 the Supreme Court
decision holding that the Second Amendment protects the
“right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” 8 While Heller recognized an
individual right to bear arms, it also explained that, “[l]ike
most rights, the right secured by the Second Amendment is
not unlimited.” 9 The Court went on to provide us with
important guidance about the Second Amendment’s scope:



 6
     U.S. Const. amend. II.
 7
     554 U.S. 570 (2008).
 8
     Id. at 635.
 9
     Id. at 626.




                                 4
         [N]othing 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. 10

        In a footnote, the Court described these laws
collectively as “presumptively lawful regulatory measures,”
making clear that “[the] list does not purport to be
exhaustive.” 11 The Court also stated that people have the
right to keep a loaded firearm in their homes for self-defense,
provided that that they are “not disqualified from the exercise
of Second Amendment rights.” 12

         Two interpretive questions about Heller therefore arise

 10
      Id. at 626–27.
 11
     Id. at 627 n.26. Elsewhere in the opinion, the Supreme
Court described these regulations as “permissible” and as
“exceptions” to the Second Amendment. Id. at 635. And two
years later, in McDonald v. City of Chicago, 561 U.S. 742
(2010), without otherwise expounding on Heller’s delineation
of the scope of the Second Amendment right, the Court
recapitulated the list of “longstanding regulatory measures” in
Heller and “repeat[ed] [Heller’s] assurances” that such laws
were not “imperil[ed]” by the Second Amendment.
Id. at 786.
 12
      Heller, 554 U.S. at 635.




                                 5
again and again. First, what does it mean to say that the
felon-in-possession ban is “presumptively lawful”? Second,
what does it mean to say that a person may only possess a
firearm if he or she has not been “disqualified from the
exercise of Second Amendment rights”? As we shall see, our
sister circuits have already done yeoman’s work exploring
these questions and suggesting possible answers.

         B.     Four Circuits Have Rejected As-Applied
                Challenges Altogether

       Four circuits—the Fifth, Ninth, Tenth, and Eleventh—
have concluded that as-applied challenges to § 922(g)(1) are
not permissible, at least with respect to felons.

       We begin with the Fifth Circuit, which held years
before Heller that the Second Amendment protects an
individual right to bear arms. 13 In another pre-Heller case,
United States v. Everist, 14 the Fifth Circuit held that the felon-
in-possession ban was constitutional with respect to both
violent and nonviolent offenders. 15 In the Fifth Circuit’s
view, “[i]rrespective of whether his offense was violent in
nature, a felon has shown manifest disregard for the rights of
others” and “[h]e may not justly complain of the limitation on
his liberty when his possession of firearms would otherwise
 13
     United States v. Emerson, 270 F.3d 203, 229
(5th Cir. 2001).
 14
      368 F.3d 517 (5th Cir. 2004).
 15
    See id. at 519 (“It is not inconsistent with the Second
Amendment to limit the ability of convicted felons to keep
and possess firearms.”).




                                6
threaten the security of his fellow citizens.” 16 The issue of
the constitutionality of § 922(g)(1) arose again after Heller in
United States. v. Scroggins. 17 The Fifth Circuit there said that
nothing in Heller caused it to question its prior conclusion in
Everist that § 922(g)(1) is constitutional even as applied to
non-violent felons. 18

        The Ninth Circuit addressed the issue of as-applied
challenges in United States v. Vongxay. 19 The defendant
there raised both a facial and an as-applied challenge to
§ 922(g)(1). With respect to the defendant’s facial challenge,
the Ninth Circuit concluded that “[n]othing in Heller can be
read legitimately to cast doubt on the constitutionality of
§ 922(g)(1).” 20 With respect to the defendant’s as-applied
challenge, Vongxay concluded that § 922(g)(1) is
constitutional even as applied to non-violent felons. The
Ninth Circuit articulated several rationales for this
conclusion. First, it noted that the right to bear arms could be
restricted at common law. Second, it observed “that to date

 16
      Id.
 17
      599 F.3d 433 (5th Cir. 2010).
 18
     Id. at 451; see also United States v. Anderson, 559 F.3d
348, 352 (5th Cir. 2009) (stating that “Heller provides no
basis for reconsidering” whether § 922(g) is constitutional)
(citing United States v. Darrington, 351 F.3d 632, 634
(5th Cir. 2003) (“Section 922(g)(1) does not violate the
Second Amendment.”)).
 19
      594 F.3d 1111 (9th Cir. 2010).
 20
      Id. at 1114.




                                7
no court that has examined Heller has found
18 U.S.C. § 922(g) constitutionally suspect.” 21 Third, it
stated that “[d]enying felons the right to bear arms
is . . . consistent with the explicit purpose of the Second
Amendment to maintain ‘the security of a free State.’” 22 To
that end, “[f]elons are often, and historically have been,
explicitly prohibited from militia duty.” 23 Lastly, it stated
that “most scholars of the Second Amendment agree that the
right to bear arms was ‘inextricably . . . tied to’ the concept of
a ‘virtuous citizen[ry]’” and that “‘the right to bear arms does
not preclude laws disarming the unvirtuous citizens,’”
including criminals. 24

       A recent Ninth Circuit decision, United States v.
Phillips, 25 re-affirmed Vongxay, although with some

 21
      Id. at 1117 (internal quotation marks omitted).
 22
      Id. (quoting U.S. Const. amend. II).
 23
      Id.
 24
    Id. at 1118 (alteration in original) (quoting Don B. Kates,
Jr., The Second Amendment: A Dialogue, 49 Law &
Contemp. Probs. 143, 146 (1986)). As discussed infra, the
strength of this historical interpretation has since been
challenged by other scholars. See, e.g., Carlton F.W. Larson,
Four Exceptions in Search of a Theory: District of
Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J.
1371, 1374−75 (2009) (analyzing sources cited by earlier
scholars); C. Kevin Marshall, Why Can’t Martha Stewart
Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 714 (2009).
 25
      --- F.3d ---, 2016 WL 3675450 (9th Cir. July 6, 2016).




                                 8
skepticism. The defendant there argued that his prior
criminal conviction could not support disarmament under
§ 922(g)(1) because his crime, which consisted of concealing
an ongoing felony from federal officials, was “a non-violent,
passive crime of inaction.” 26 The Ninth Circuit said that
“there may be some good reasons to be skeptical about the
correctness of the current framework of analyzing the Second
Amendment rights of felons,” 27 but it nonetheless concluded
that Heller and Vongxay foreclosed the defendant’s
argument. 28

       The Tenth Circuit rejected a constitutional challenge to
§ 922(g)(1) in United States v. McCane. 29 It focused on the
fact that the Supreme Court “explicitly stated in Heller that
‘nothing in our opinion should be taken to cast doubt on

 26
      Id. at *2 (internal quotation marks omitted).
 27
      Id. at *5.
 28
     Id. at *4 (“[A]ssuming the propriety of felon firearm
bans—as we must under Supreme Court precedent and our
own—there is little question that Phillips’s predicate
conviction . . . can constitutionally serve as the basis for a
felon ban.”); see also Van Der Hule v. Holder, 759 F.3d
1043, 1050–51 (9th Cir. 2014) (“We addressed whether
§ 922(g)(1) violates the Second Amendment in [Vongxay]
and determined that it did not.”). But see United States v.
Duckett, 406 F. App’x 185, 187 (9th Cir. 2010) (Ikuta, J.,
concurring) (stating that it might be constitutionally
problematic to prevent non-violent felons from possessing
firearms).
 29
      573 F.3d 1037 (10th Cir. 2009).




                                 9
longstanding prohibitions on the possession of firearms by
felons.’” 30     While Judge Tymkovich complained in
concurrence that “[t]he Court’s summary treatment of felon
dispossession in dictum forecloses the possibility of a more
sophisticated interpretation of § 922(g)(1)’s scope,” 31 the
Tenth Circuit has not revisited the issue. To the contrary, it
said in a later case that it had “already rejected the notion that
Heller mandates an individualized inquiry concerning felons
pursuant to § 922(g)(1).” 32

       Lastly,     the   Eleventh      Circuit     upheld      the
constitutionality of § 922(g)(1) in United States v. Rozier. 33
That opinion focused on the Supreme Court’s language in
Heller regarding “disqualifi[cation] from the exercise of
Second Amendment rights.” 34 Interpreting this language, the
Eleventh Circuit concluded that one of Heller’s implied
premises was that certain persons can be permissibly
disqualified from exercising their Second Amendments rights
altogether. The court went on to say that Heller’s list of
“longstanding prohibitions” indicated that “statutes
disqualifying felons from possessing a firearm under any and
all circumstances do not offend the Second Amendment.” 35
As a result, it concluded that “statutory restrictions of firearm

 30
      Id. at 1047 (quoting Heller, 554 U.S. at 626).
 31
      Id. at 1049.
 32
      In re United States, 578 F.3d 1195, 1200 (10th Cir. 2009).
 33
      598 F.3d 768 (11th Cir. 2010).
 34
      Id. at 770 (quoting Heller, 554 U.S. at 635).
 35
      Id. at 771 (emphasis added).




                                10
possession, such as § 922(g)(1), are a constitutional avenue to
restrict the Second Amendment right of certain classes of
people,” and that “Rozier, by virtue of his felony conviction,
falls within such a class.” 36

            C.      Three Circuits Are Wary of As-Applied
                    Challenges

        The First Circuit has expressed skepticism about as-
applied challenges to the federal firearms laws, although it
has not foreclosed such challenges. In United States v.
Torres-Rosario, 37 the First Circuit considered a defendant’s
as-applied challenge to his conviction under § 922(g)(1). The
defendant’s prior convictions were for possession with intent
to distribute and distribution of controlled substances, and the
court concluded that the defendant’s challenge failed because
“drug dealing is notoriously linked to violence.” 38 In
reaching that conclusion, the First Circuit stated that the
“Supreme Court may be open to claims that some felonies do
not indicate potential violence and cannot be the basis for
applying a categorical ban,” and likewise “might even be
open to highly fact-specific objections.” 39 Even so, the court
observed that permitting “such an approach, applied to
countless variations in individual circumstances, would
obviously present serious problems of administration,



 36
      Id.
 37
      658 F.3d 110 (1st Cir. 2011).
 38
      Id. at 113.
 39
      Id.




                                  11
consistency and fair warning.” 40 The First Circuit thus
suggested that defendants could bring as-applied challenges,
even while recognizing the difficulties that considering such
challenges would create.

        The Second Circuit upheld the constitutionality of
§ 922(g)(1) in United States v. Bogle. 41 It did not analyze the
issue in great depth. Instead, it pointed to Heller’s language
about “longstanding prohibitions” and “join[ed] every other
circuit to consider the issue in affirming that § 922(g)(1) is a
constitutional restriction on the Second Amendment rights of
convicted felons.” 42 The court did not distinguish between
facial and as-applied challenges. 43

      Meanwhile, the jurisprudence of the Sixth Circuit
appears to be in flux. That court dealt with challenges to
§ 922(g)(1) in two non-precedential opinions. In one, United
States v. Frazier, 44 the court rejected a challenge to
§ 922(g)(1) on the view that “congressional regulation of

 40
      Id.
 41
      717 F.3d 281 (2d Cir. 2013).
 42
      Id. at 281–82.
 43
    Bogle did not raise an as-applied challenge to § 922(g)(1)
on the basis of the Second Amendment. Even so, the Second
Circuit’s broad language and its citations to numerous courts
that have considered such challenges suggest that it intended
to broadly approve restrictions on the Second Amendment
rights of individuals who are not law-abiding.
 44
      314 F. App’x 801 (6th Cir. 2008).




                               12
firearms [remained] constitutional” even post-Heller. 45 In
another, United States v. Khami, 46 the court recognized the
theoretical possibility of an as-applied challenge to
§ 922(g)(1) but said that, on the facts before it, “[e]ven an as
applied challenge would be difficult . . . to mount.” 47 A later
precedential opinion, United States v. Carey, 48 stated flatly
that “prohibitions on felon possession of firearms do not
violate the Second Amendment.” 49 And most recently, the
Sixth Circuit has considered the issue of whether the federal
statute making it unlawful to possess a firearm after having
been committed to a mental institution, 18 U.S.C.
§ 922(g)(4), permits as-applied challenges. That issue, which
raises a doctrinal conundrum similar to the one we confront
here, has also triggered en banc review. 50




 45
      Id. at 807.
 46
      362 F. App’x 501 (6th Cir. 2010).
 47
      Id. at 508.
 48
      602 F.3d 738 (6th Cir. 2010).
 49
      Id. at 741.
 50
     Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308
(6th Cir. 2014), reh’g en banc granted, opinion vacated
(Apr. 21, 2015).




                               13
         D.     Four Circuits Permit As-Applied Challenges

       The Fourth, 51 Seventh, 52 Eighth, 53 and D.C. Circuits 54
have left the door open to a successful as-applied challenge.
Even so, none of these courts has yet upheld one.

         In many instances, these courts have also narrowed the

 51
   United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012)
(“We do not foreclose the possibility that a case might exist in
which an as-applied Second Amendment challenge to
§ 922(g)(1) could succeed.”).
 52
      Baer v. Lynch, 636 F. App’x 695, 698 (7th Cir. 2016)
(“We have not decided if felons historically were outside the
scope of the Second Amendment’s protection and instead
have focused on whether § 922(g)(1) survives intermediate
scrutiny. As to violent felons, the statute does survive
intermediate scrutiny, we have concluded, because the
prohibition on gun possession is substantially related to the
government’s interest in keeping those most likely to misuse
firearms from obtaining them.” (internal citations omitted));
United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)
(“Heller referred to felon disarmament bans only as
‘presumptively lawful,’ which, by implication, means that
there must exist the possibility that the ban could be
unconstitutional in the face of an as-applied challenge.”).
 53
      United States v. Woolsey, 759 F.3d 905 (8th Cir. 2014).
 54
      Schrader v. Holder, 704 F.3d 980, 991–92
(D.C. Cir. 2013) (rejecting as-applied challenge to
§ 922(g)(1) brought by common-law misdemeanants as a
class).




                                14
universe of as-applied challenges that are permissible. The
Fourth Circuit, which has repeatedly said that it might affirm
an as-applied challenge in the right circumstances, has
rejected the proposition that Congress may disarm only
persons who commit violent crimes. In United States v.
Pruess, 55 the court considered a challenge to § 922(g)(1)
brought by a firearms dealer and collector who also had over
twenty prior convictions for failing to comply with various
gun laws, although none of those convictions were for violent
crime.      Pruess held “that application of the felon-in-
possession       prohibition      to   allegedly   non-violent
felons . . . does not violate the Second Amendment.” 56

       There is also some ambiguity in the jurisprudence of
the Eighth Circuit.         That court upheld the facial
constitutionality of § 922(g)(1) in United States v. Seay. 57 It
also addressed as-applied challenges to § 922(g)(1) in United
States v. Woolsey, 58 where it cited one of its prior non-

 55
      703 F.3d 242 (4th Cir. 2012).
 56
      Id. at 247.
 57
    620 F.3d 919 (8th Cir. 2010). Seay technically addressed
§ 922(g)(3), which prohibits gun possession by drug users. In
reviewing the Eighth Circuit’s precedents, Seay stated that a
prior non-precedential opinion upholding the constitutionality
of § 922(g)(1) was correct. See id. at 924 (citing United
States v. Irish, 285 F. App’x 326 (8th Cir. 2008)). The Eighth
Circuit rejected a facial challenge to § 922(g)(1) a second
time in United States v. Joos, 638 F.3d 581, 586
(8th Cir. 2011).
 58
      759 F.3d 905.




                               15
precedential opinions, United States v. Brown, 59 that in turn
relied on our decision in United States v. Barton. 60 Following
Barton’s logic, Woolsey rejected a defendant’s as-applied
challenge to § 922(g)(1) because he had not “presented ‘facts
about himself and his background that distinguish his
circumstances from those of persons historically barred from
Second Amendment protections.’” 61

        Even so, another Eighth Circuit decision, United
States v. Bena, 62 suggests that as-applied challenges might
rest on shaky ground. Bena involved a facial challenge to
§ 922(g)(8), which bars possession of firearms by those
subject to a restraining order. In addressing that challenge,
Bena stated that the Heller’s list of “longstanding
prohibitions” suggested that the Supreme Court “viewed
[those] regulatory measures . . . as presumptively lawful
because they do not infringe on the Second Amendment
right.” 63 In support of that conclusion, the court cited our
own analysis in United States v. Marzzarella. 64 The Eighth
Circuit also pointed to the fact that, as a historical matter,
several states viewed the right to bear arms as limited to

 59
     Id. at 909 (citing Brown, 436 F. App’x 725
(8th Cir. 2011)).
 60
      633 F.3d 168 (3d Cir. 2011).
 61
    Woolsey, 759 F.3d at 909 (quoting Brown, 436 F. App’x
at 726).
 62
      664 F.3d 1180 (8th Cir. 2011).
 63
      Id. at 1183.
 64
      614 F.3d 85, 91 (3d Cir. 2010).




                                16
peaceable, responsible citizens. The court expressly declined
to consider the question of “whether § 922(g)(8) would be
constitutional as applied to a person who is subject to an
order that was entered without evidence of dangerousness.” 65

         Meanwhile, the D.C. Circuit considered the issue of
as-applied challenges in Schrader v. Holder. 66 In that case,
the court concluded that the plaintiffs had brought, at most, a
challenge to § 922(g)(1) “as applied to common-law
misdemeanants as a class,” not as applied to Shrader
individually. 67 The court easily rejected that challenge. It
stated that the “plaintiffs [had] offered no evidence that
individuals convicted of [common-law misdemeanors] pose
an insignificant risk of future armed violence.” 68 It also
adopted the view that even if “some common-law
misdemeanants . . . may         well     present     no     such
risk . . . ‘Congress is not limited to case-by-case exclusions of
persons who have been shown to be untrustworthy with
weapons, nor need these limits be established by evidence




 65
      Bena, 664 F.3d at 1185.
 66
      704 F.3d 980 (D. C. Cir. 2013).
 67
      Id. at 991.
 68
      Id. at 990.




                                17
presented in court.’” 69

                           *   *     *

       As this survey of cases demonstrates, federal judges
face an almost complete absence of guidance from the
Supreme Court about the scope of the Second Amendment
right. Even so, only four of our sister courts have clearly
stated that as-applied challenges to § 922(g)(1) are even
permissible. In taking the further step of upholding such a
challenge, we stand entirely alone.

      With this background in mind, it is possible to explain
where I agree—and disagree—with my colleagues. 70


 69
    Id. at 990–91 (quoting United States v. Skoien, 614 F.3d
638, 641 (7th Cir. 2010) (en banc)) (emphasis in original).
Schrader suggested that, had the plaintiffs properly raised an
as-applied challenge by arguing “that the statute is invalid as
applied to Schrader specifically,” then “Heller might well
dictate a different outcome” than the decision the court
reached with respect to the class-wide challenge. Id. at 991.
 70
    As an initial matter, I agree with both Judge Ambro and
Judge Hardiman that the plaintiffs’ statutory arguments are
unavailing.     The two statutory provisions here are
straightforward: § 922(g)(1) makes it unlawful for anyone to
possess a firearm after having been convicted of a crime
punishable by more than one year in prison, and
§ 921(a)(20)(B) removes from that prohibition persons
convicted of misdemeanors with a maximum punishment of
two years or less.




                               18
II.    Marzzarella Step-One and Exclusions from the
       Second Amendment Right

       Our decision in Marzzarella establishes a two-step test
for assessing challenges to the constitutionality of statutes
under the Second Amendment:

       First, we ask whether the challenged law
       imposes a burden on conduct falling within the
       scope of the Second Amendment’s guarantee.
       If it does not, our inquiry is complete. If it
       does, we evaluate the law under some form of
       means-end scrutiny. If the law passes muster
       under that standard, it is constitutional. If it
       fails, it is invalid. 71

       I agree with Judge Ambro that Marzzarella provides
the correct framework for assessing challenges to the
constitutionality of § 922(g)(1). I also agree with him that, at
Marzzarella step-one, persons who commit serious crimes are




  In other words, the only persons subject to § 922(g)(1) are
(i) felons and (ii) misdemeanants whose crimes are
punishable by more than two years in prison. I therefore join
Parts I and II of Judge Ambro’s opinion.
 71
   Marzzarella, 614 F.3d at 89 (internal citation and footnote
omitted).




                              19
disqualified from asserting their Second Amendment rights. 72

       Unfortunately, Judge Ambro and I disagree over how
to decide whether any particular crime is serious enough to
cause a loss of firearm rights. Judge Ambro believes that the
category of “serious crime” is amorphous. While some
crimes may be serious by definition, including those in which
the actual or attempted use of violence is an element of the
offense, 73 other crimes may be serious—or not—depending
on the circumstances.         In Judge Ambro’s view, the
seriousness inquiry therefore requires district courts to engage
in person-specific assessments based on the facts of any
particular case. By contrast, I would hold that Heller itself
tells us that felons are disqualified from exercising their
Second Amendment rights. Because there is no principled
basis, at least in this context, for distinguishing felons from
misdemeanants who commit crimes punishable by more than
two years in prison, all crimes currently within § 922(g)(1)’s
scope are serious by definition. I would therefore hold that
the plaintiffs’ challenges fail at Marzzarella step-one, full
stop.


 72
    Accordingly, I join Parts III.A, III.B, III.C.1, III.C.2, and
III.C.3.a of Judge Ambro’s opinion in their entirety. I would
also vote to overrule Barton, at least insofar as it states that
as-applied challenges to § 922(g)(1) are permissible as that
statute is currently codified. In my view, they are not.
  Chief Judge McKee, Judge Shwartz, and Judge Restrepo
join only Parts I and II of Judge Ambro’s opinion. (See
Ambro Op. Typescript at 6–7 n.1.)
 73
      See Ambro Op. Typescript at 24, 31.




                               20
         A.     Congress May Permissibly Disarm Felons at
                Marzzarella Step-One

       In applying step-one of the Marzzarella analysis, we
ask whether § 922(g)(1) burdens any Second Amendment
right. At least as to the prohibition on felons possessing
firearms, Heller and Marzzarella answer that question
directly.

        The Heller Court was careful to tell us that “nothing in
[its] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons.” 74 It
also referred to the felon-in-possession ban as one of several
“presumptively lawful regulatory measures.” 75                In
Marzzarella, we concluded that the “better reading” of Heller
was that these measures were complete “exceptions to the
right to bear arms.” 76 On this view, felons do not simply
have narrower Second Amendment rights than their law-
abiding counterparts; they “are disqualified from exercising
their Second Amendment rights” altogether. 77 While felons
certainly have an interest in using firearms “for defense of
hearth and home,” Marzzarella stated that “a felony

 74
      554 U.S. at 626.
 75
      Id. at 627 n.26.
 76
      614 F.3d at 91 (emphasis added).
 77
    Id. at 91–92; see also Jeff Golimowski, Note, Pulling the
Trigger: Evaluating Criminal Gun Laws in a Post-Heller
World, 49 Am. Crim. L. Rev. 1599, 1616 (2012) (contending
that felons forfeit Second Amendment rights through
affirmative decisions to violate the social contract).




                               21
conviction disqualifies an individual from asserting that
interest.” 78

        At the time Marzzarella came down, this reading of
Heller was in accord with the views of several of our sister
courts. 79 Other circuits have since adopted the same
position, 80 and we ourselves have recommitted to it. 81

        Apart from the text of Heller itself, history and
tradition also support Marzzarella’s conclusion that the felon-
in-possession ban is a permissible exclusion from the Second
Amendment right. Without “engaging in a round of full-


 78
      614 F.3d at 92.
 79
    See Rozier, 598 F.3d at 770–71 (“Prior to taking into
account Rozier’s purpose for possessing the handgun, we
must determine whether he is qualified to possess a
handgun.”); Vongxay, 594 F.3d at 1113 (“[F]elons are
categorically different from the individuals who have a
fundamental right to bear arms, and Vongxay’s reliance on
Heller is misplaced.” (footnote omitted)).
 80
    See, e.g., Bena, 664 F.3d at 1183 (“It seems most likely
that the Supreme Court viewed the regulatory measures listed
in Heller as presumptively lawful because they do not
infringe on the Second Amendment right.”).
 81
     See Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013)
(reiterating that “certain longstanding regulations are
‘exceptions’ to the right to keep and bear arms, such that the
conduct they regulate is not within the scope of the Second
Amendment”).




                              22
blown historical analysis,” 82 it suffices for now to say that
numerous courts have reviewed the historical record and
concluded that Founding-era sources support the
constitutionality of § 922(g)(1) even as applied to non-violent
felons. 83

        With respect to the Founding generation, the Eighth
Circuit points us to Blackstone, who “explained that English
subjects enjoyed a right to have arms for their defense,
‘suitable to their condition and degree’ and ‘under due
restrictions.’” 84 As to the Founders themselves, several
judges—including Judge Hardiman—have recounted how
“[s]hortly after the Pennsylvania ratifying convention for the
original Constitution . . . the Anti–Federalist minority
recommended the following amendment: ‘That the people
have a right to bear arms for the defense of themselves and

 82
      Id.
 83
     See, e.g., Bena, 664 F.3d at 1183 (“Scholarship suggests
historical support for a common-law tradition that permits
restrictions directed at citizens who are not law-abiding and
responsible.”); Vongxay, 594 F.3d at 1113 (“[M]ost scholars
of the Second Amendment agree that the right to bear arms
‘was . . . inextricably tied to’ the concept of ‘virtuous
citizen[ry]’ . . . .” (all alternations except first in original)
(quoting Kates, supra note 24)); Emerson, 270 F.3d
at 226 n.21 (citing sources for the proposition that “the
Second Amendment does not prohibit legislation such as [the
felon-in-possession ban]”).
 84
   Bena, 664 F.3d at 1183 (quoting 1 William Blackstone,
Commentaries 139).




                               23
their own state, or the United States . . . and no law shall be
passed for disarming the people or any of them, unless for
crimes committed, or real danger of public injury from
individuals.’” 85   Heller identified this proposal as a
“precursor” that was “highly influential” to the ratification of
the Second Amendment. 86

       The Seventh Circuit has also done helpful work
mining the historical sources. Sitting en banc, the court
highlighted the fact that, during the Founding era, “[m]any of
the states, whose own constitutions entitled their citizens to
be armed, did not extend this right to persons convicted of
crime.” 87 In United States v. Yancey, 88 the court stated that
“[w]hatever the pedigree of the rule against even nonviolent
felons possessing weapons . . . most scholars of the Second
Amendment agree that the right to bear arms was tied to the

 85
     Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 201
(5th Cir. 2012) (emphasis removed) (quoting Saul Cornell,
Commonplace or Anachronism: The Standard Model, the
Second Amendment, and the Problem of History in
Contemporary Constitutional Theory, 16 Const. Comment.
221, 233 (1999)); see also Hardiman Op. Typescript at 24
(discussing the same proposal).
 86
      554 U.S. at 604.
 87
    Skoien, 614 F.3d at 640 (citing Stephen P. Halbrook, The
Founders’ Second Amendment 273 (2008); Marshall, Why
Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub.
Pol’y at 700–13).
 88
      621 F.3d 681 (7th Cir. 2010).




                               24
concept of a virtuous citizenry and that, accordingly, the
government could disarm ‘unvirtuous citizens.’” 89 Yancey
also noted that, “while felon-in-possession laws could be
criticized as ‘wildly overinclusive’ for encompassing
nonviolent offenders, every state court in the modern era to
consider the propriety of disarming felons under analogous
state constitutional provisions has concluded that step to be
permissible.” 90

       The federal statutory ban on convicts possessing
firearms itself has a lengthy pedigree. In 1932, Congress
passed a law imposing restrictions on the possession of
machine guns, sawed-off shotguns, and certain other weapons
in the District of Columbia. 91 That law also made it illegal
for any “person who has been convicted in the District of
Columbia or elsewhere of a crime of violence [to] own or
have in his possession a pistol, within the District of




 89
    Id. at 684–85 (considering a challenge to 18 U.S.C.
§ 922(g)(3), which makes it unlawful to possess firearms as a
person who is “an unlawful user of or addicted to any
controlled substance”).
 90
    Id. at 685 (quoting Adam Winkler, Scrutinizing the
Second Amendment, 105 Mich. L. Rev. 683, 721 (2007)).
 91
      Act of July 8, 1932, ch. 465, § 14, 47 Stat. 650, 654.




                                 25
Columbia.” 92 In 1938, Congress passed a broader statute—
the Federal Firearms Act—that made it unlawful for those
who had been convicted of a “crime of violence” to “receive
any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 93 Congress
removed the “crime of violence” limitation in 1961 94 and
“changed the ‘receipt’ element of the 1938 law to
‘possession’ [in 1968], giving § 922(g)(1) its current form.” 95
The stated purpose of the 1968 revision was “to curb crime
by keeping ‘firearms out of the hands of those not legally
entitled to possess them because of age, criminal background,
or incompetency.’” 96

       The development of § 922(g) also evinces Congress’s
desire to keep guns away from persons other than those

 92
     Id. § 3, 47 Stat. at 651. The 1932 Act defined a “crime of
violence” as “[m]urder, manslaughter, rape, mayhem,
maliciously disfiguring another, abduction, kidnaping,
burglary, housebreaking, larceny, any assault with intent to
kill, commit rape, or robbery, assault with a dangerous
weapon, or assault with intent to commit any offense
punishable by imprisonment in the penitentiary,” or “an
attempt to commit any of the same.” Id. § 1, 47 Stat. at 650.
 93
   Act of June 30, 1938, ch. 850, §§ 1(6), 2(f), 52 Stat. 1250,
1250–51.
 94
      Act of Oct. 3, 1961, Pub. L. No. 87-342, 75 Stat. 757.
 95
      Skoien, 614 F.3d at 640 (statutory citation truncated).
 96
    Huddleston v. United States, 415 U.S. 814, 824 (1974)
(quoting S. Rep. No. 90–1501, at 22 (1968)).




                                 26
whose past unlawful conduct indicates a likelihood of future
dangerousness. The current iteration of § 922(g) prohibits
nine groups of persons from possessing guns, including
fugitives, drug addicts, persons previously committed to
mental institutions, persons under a court order for
threatening a partner or child, and persons with misdemeanor
convictions for crimes of domestic violence. The other
prohibitions of § 922(g), however, rest on a slightly different
rationale. In 1968, Congress expanded what is now § 922(g)
to cover undocumented or non-immigrant aliens, persons
dishonorably discharged from the military, and persons who
have renounced their U.S. citizenship. These additions,
which were “enacted in response to the wave of political and
civil rights assassinations during the 1960s,” 97 reflected
Congress’s judgment that persons within these categories
“may not be trusted to possess a firearm without becoming a
threat to society.” 98 Rather than disarm persons based on a
rigid link between past violent acts and future dangerousness,
these restrictions—consistent with the tradition at the
Founding of tying gun rights to civic virtue—disarm groups
whose members Congress believes are unable or unwilling to
conduct themselves in conformity with the responsibilities of




 97
      United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984).
 98
    Scarborough v. United States, 431 U.S. 563, 572 (1977)
(quoting 114 Cong. Rec. 14,773 (1968)); see also Stevens v.
United States, 440 F.2d 144, 146–49, 152–70 (6th Cir. 1971)
(recounting the relevant legislative history).




                                27
citizenship. 99

       To be fair, one might quibble with this kind of
historical explanation for § 922(g)(1)’s scope. With regard to
the statute itself, one might ask if 50 years is a long enough
period of time to entrench a constitutional tradition—
although several courts have said as much when assessing
Second Amendment challenges. 100 And with respect to
Founding-era sources, some judges have expressed the view
that the historical record is too infirm a platform on which to
rest hard-and-fast decisions about the scope of the Second




 99
     I note that permitting plaintiffs to bring as-applied
challenges to § 922(g)(1) opens the door to similar challenges
under these other provisions. For example, once a plaintiff
can challenge application of the felon-in-possession ban on
the ground that his or her prior crime does not indicate a
likelihood of future dangerousness, the next case might
involve an as-applied challenge to § 922(g)(6), the provision
concerning dishonorable discharge from the Armed Forces,
for the same reason.
 100
      See, e.g., Pruess, 703 F.3d at 245 n.1 (rejecting the
argument that the ban on non-violent felons possessing
firearms is not “longstanding,” since it has been in place “for
more than half a century”).




                              28
Amendment right. 101 Our Court’s multiple opinions in this
case illustrate just how contested Founding-era historiography
can be.

      Even so, my review of the relevant history leads me to
conclude that § 922(g)(1)’s categorical ban on felons
possessing firearms is rooted deeply enough in our tradition
to operate as a bona fide disqualification from the Second
Amendment right.

       B.     Misdemeanors Within § 922(g)(1)’s Scope
              Are Functionally Felonies

        Having established that felons are categorically
disqualified from asserting their Second Amendment rights,
the next question is whether misdemeanants, like the
plaintiffs, are situated differently. The plaintiffs insist that
they are. In their view, “[w]hen Heller spoke of ‘felons,’ it


 101
     See, e.g., United States v. Chester, 628 F.3d 673, 680–81
(4th Cir. 2010) (stating that the relevant historical scholarship
is, at best, “not conclusive” as to how the Founding
generation treated felon dispossession); Skoien, 614 F.3d
at 650 (Sykes, J., dissenting) (“[S]cholars disagree about the
extent to which felons—let alone misdemeanants—were
considered excluded from the right to bear arms during the
founding era.”); McCane, 573 F.3d at 1048 (Tymkovich, J.,
concurring) (“But more recent authorities have not found
evidence of longstanding dispossession laws.             On the
contrary, a number have specifically argued such laws did not
exist and have questioned the sources relied upon by the
earlier authorities.”).




                               29
spoke of a traditional common-law classification known to
the Framers, not a late-twentieth century statute including
some vast (if disputed) number of misdemeanor offenses.” 102
Judge Ambro is sympathetic to that notion. 103 I am not.

       As an initial matter, nothing in Heller suggests that the
felony-misdemeanor distinction is a meaningful one. It is
true, of course, that Heller’s list of “presumptively lawful
regulatory measures” includes “longstanding prohibitions on
the possession of firearms by felons.” 104 One could perhaps
read those words and conclude that the Supreme Court was
purposefully placing felons—and only felons—in the
category of persons who may be permissibly disqualified
from the exercise of their Second Amendment rights. Still,
one could just as easily conclude that the Court was using
shorthand to refer to § 922(g)(1) as a whole. After all, the
Court was careful elsewhere in Heller to say that the Second
Amendment protects “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” 105
Neither felons nor misdemeanants are the kinds of “law-




 102
       Binderup Br. at 55–56.
 103
     See, e.g., Ambro Op. Typescript at 30–31 (“Congress
may not overlook entirely the misdemeanor label, which, in
the Second Amendment context, is also important.”).
 104
       554 U.S. at 626–27 & n.26.
 105
       Id. at 635.




                                30
abiding” citizens whose rights Heller vindicated. 106

       More fundamentally, the notion that there is a sharp
distinction between felonies and misdemeanors, at least
within the universe of crimes covered by § 922(g)(1), is not
correct. Our own Court has long recognized that, in the
modern world, a “felony” is any crime punishable by at least
one year and one day in prison. 107 And the Supreme Court
has explained that, in contemporary law, “the distinction
[between felonies and misdemeanors] is minor and often
arbitrary.” 108 The kinds of misdemeanors within the scope of
§ 922(g)(1)—those punishable by more than two years in
prison—are effectively felonies in all but name. 109



 106
      Heller also underscored that its list of longstanding
prohibitions “does not purport to be exhaustive,” while
emphasizing that the list flows from “historical
justifications.” Id. at 627 n.26, 635. This guidance suggests a
more practical approach than focusing on the word “felon”
alone.
 107
     See, e.g., Thorm v. United States, 59 F.2d 419, 419
(3d Cir. 1932) (noting that Congress has historically defined
felonies as crimes punishable by a prison term exceeding one
year).
 108
     Tennesee v. Garner, 471 U.S. 1, 14 (1985) (“[T]he
assumption that a ‘felon’ is more dangerous than a
misdemeanant     [is]  untenable.  Indeed,   numerous
misdemeanors involve conduct more dangerous than many
felonies.”).
 109
       The Supreme Court’s recent decision in Voisine v. United




                               31
       Indeed, we have previously held that Congress has the
power to define a “felony” for purposes of federal law in
ways that depart even from the year-and-a-day rule. In
United States v. Graham, 110 we considered how to apply
Congress’s definition of an “aggravated felony” to a
provision of the Sentencing Guidelines that “increase[d] the
penalty for the crime of reentering the country after




States, 136 S. Ct. 2272 (2016), also addressed the distinction
between misdemeanors and felonies. That case raised an
issue of statutory interpretation regarding 18 U.S.C.
§ 922(g)(9), which prohibits the possession of firearms by
persons convicted of a “misdemeanor crime of domestic
violence.”
  Because Voisine did not involve a challenge to the
constitutionality of § 922(g)(9), it bears on these cases only
indirectly. Still, Voisine recognized that Congress passed
§ 922(g)(9) “to close [a] dangerous loophole in the gun
control laws.” Id. at 2276 (alteration in original) (internal
quotation marks omitted). In particular, Congress enacted
§ 922(g)(9) to address the fact that “many perpetrators of
domestic violence are charged with misdemeanors rather than
felonies, notwithstanding the harmfulness of their conduct.”
Id. Congress believed that closing this loophole was
important because, in the Supreme Court’s words, “[f]irearms
and domestic strife are a potentially deadly combination.” Id.
(alteration in original) (quoting United States v. Hayes, 555
U.S. 415, 427 (2009)).
 110
       169 F.3d 787 (3d Cir. 1999).




                               32
deportation.” 111 The issue in the case was two-fold. First, the
federal statute defined the term “aggravated felony” as an
offense punishable by at least one year in prison—not, as is
more typical, an offense punishable by more than one year in
prison. 112 Second, the prior state offense that triggered the
defendant’s federal sentencing enhancement was technically a
misdemeanor under New York law. 113

       Graham recognized that “[t]he line between felonies
and misdemeanors is an ancient one,” but it also noted that,
“[w]ith the rise of the penitentiary and the disappearance of
the death penalty for most felonies . . . the felony-
misdemeanor distinction solidified at the one-year line.” 114
Even so, we concluded that Congress could ignore the year-
and-a-day rule in its own statutory law. As a result, the label
New York had affixed to Graham’s offense was immaterial;
what mattered was the fact that his misdemeanor fell within




 111
     Id. at 789 (discussing 8 U.S.C. § 1101(a)(43) and
U.S.S.G. § 2L1.2(b)(1)(B)).
 112
     Id. at 791 (“8 U.S.C. § 1101(a)(43)(G) defines an
aggravated felony as a theft offense with a sentence of at least
one year.”).
 113
       Id. at 789.
 114
       Id. at 792.




                              33
the technical federal definition of an “aggravated felony.” 115

       Contrary to the statutory scheme we confronted in
Graham, § 922(g)(1) respects the more modern, year-and-a-
day distinction between felonies and misdemeanors. Indeed,
it does more than respect it: it actually excludes from its
scope misdemeanors that are punishable by two years of
imprisonment or less. In this way, § 922(g)(1) incorporates
certain state-law judgments about what crimes count as
“serious” misdemeanors. In other contexts, the Supreme
Court has affirmed the value of easily administrable statutory
schemes by stating that Congress can adopt clear, uniform
rules about what counts as a “felony” for purposes of federal




 115
     Id. (“Congress has the power to define the punishment
for the crime of reentering the country after deportation, and
we conclude that Congress was defining a term of art,
‘aggravated felony,’ which in this case includes certain
misdemeanants who receive a sentence of one year.”).




                               34
law, even where state-level definitions are more nuanced. 116

       The bottom line is this: once a misdemeanor is
punishable by more than two years in prison, treating it as
though it were intrinsically different than a felony is
unjustifiably formalistic. By choosing to punish such
misdemeanors more severely than a traditional felony, a state
has already indicated that such crimes are serious. In my
view, Congress is entitled to rely on that judgment.

       Accordingly, my resolution of this case would be
simple. Heller tells us that “nothing in [that] opinion should
be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.” 117 Our Court has since
interpreted Heller to say that the ban on felons possessing
firearms is a complete carve-out from the Second
Amendment right. Since, for present purposes, there is no

 116
     See, e.g., Burgess v. United States, 553 U.S. 124, 134
(2008) (recounting how Congress amended a statute’s
definition of “felony drug offense,” which in its previous
form “depended on the vagaries of state-law classifications of
offenses as felonies or misdemeanors,” to instead use a
“uniform federal standard”); Logan, 552 U.S. at 35
(explaining that Congress could choose to “revise
§ 921(a)(20) to provide . . . that federal rather than state law
defines a conviction for purposes of [§ 922]”); United
States v. Turley, 352 U.S. 407, 411 (1957) (“[I]n the absence
of a plain indication of an intent to incorporate diverse state
laws into a federal criminal statute, the meaning of the federal
statute should not be dependent on state law.”).
 117
       554 U.S. at 626.




                              35
functional difference between felons and persons who
commit misdemeanors punishable by more than two years in
prison, all persons with the scope of § 922(g)(1)—including
the plaintiffs here—are disqualified from asserting their
interest in using firearms “for defense of hearth and home.” 118
At Marzzarella step-one, no further analysis is necessary.

         C.     A Note on Heller’s Use of the Word
                “Presumptively”

       A majority of my colleagues disagree with the
proposition that the felon-in-possession ban is a constitutional
carve-out from the Second Amendment right. In affirming
the plaintiffs’ challenges, they make it clear that district
courts in our Circuit must now conduct person-by-person,
individualized inquiries in order to determine whether the
application of § 922(g)(1) is constitutional in any particular
case.

       In reaching that conclusion, my colleagues treat
Heller’s use of the word “presumptively” as though it
requires courts to consider as-applied challenges to the felon-
in-possession ban. Judge Hardiman, for example, cites the
Seventh Circuit’s decision in United States v. Williams, which
read Heller’s reference “to felon disarmament bans only as
‘presumptively lawful’” to imply “the possibility that the ban
could be unconstitutional in the face of an as-applied
challenge.” 119 Likewise, Judge Ambro insists that “[u]nless

 118
       Marzzarella, 614 F.3d at 92.
 119
    Hardiman Op. Typescript at 9–10 n.6 (citing Williams,
616 F.3d at 692).




                                36
flagged as irrebutable, presumptions are rebuttable.” 120 The
shared assumption here is that, when the Supreme Court used
the word “presumptively” in Heller, it meant to convey
something like the definition of “presumption” that one might
find in a legal dictionary—i.e., “a rule of law, statutory or
judicial, by which [a] finding of a basic fact gives rise to
existence of presumed fact, until [the] presumption is
rebutted.” 121

       This reading of “presumptively” in Heller puts more
weight on that word than it can fairly bear. It is important to
keep in mind the context within which the word appears. The
key text of Heller says:

         [N]othing 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. 122

       Footnote 26 of Heller, which accompanies this
passage, states: “We identify these presumptively lawful
regulatory measures only as examples; our list does not
 120
       Ambro Op. Typescript at 28.
 121
      United States v. Chase, 18 F.3d 1166, 1172 n.7
(4th Cir. 1994) (quoting Black’s Law Dictionary 1185
(6th ed. 1990)).
 122
       554 U.S. at 626–27.




                               37
purport to be exhaustive.” 123

        Judge Ambro and Judge Hardiman read the word
“presumptively” as though the Supreme Court was
communicating, through its use of a single adverb in a
footnote, a mandate that the Second Amendment now
requires courts to hear as-applied challenges to certain laws
that limit gun rights. That interpretation strikes me as exactly
backwards. The Supreme Court was not putting us on notice
that “longstanding prohibitions” universally considered
constitutional pre-Heller were, post-Heller, constitutionally
suspect. The Court was instead trying to provide assurances
that, whatever else Heller might portend, it did not provide a
basis for future litigants to upend any and all existing
restrictions on the right to bear arms. In other words, Heller’s
language about “longstanding prohibitions” was meant to
cabin its holding, not to expand it.

       It is also important to underscore that not all of the
“longstanding prohibitions” on Heller’s list are the same.
The ban on “the possession of firearms by felons” 124 is a
black-and-white proscription that has deep roots in our shared
constitutional tradition. There is also nothing unclear about
when it applies. Marzzarella recognized as much, reasoning
that Heller “suggests [that] felons . . . are disqualified from
exercising their Second Amendment rights” because the
“validity” of the felon-in-possession ban does not “turn on the



 123
       Id. at 627 n.26.
 124
       Id. at 626.




                                 38
presence or absence of certain circumstances.” 125

       The latter two kinds of “longstanding prohibitions” are
different. These categories—“laws forbidding the carrying of
firearms in sensitive places” and “laws imposing conditions
and qualifications on the commercial sale of arms” 126—have
much more ambiguous boundaries. One might well ask:
other than a school and a government building, what kind of
location counts as a “sensitive place”? What kinds of
conditions on the sale of arms are truly “longstanding”? In a
case involving such a regulation, a court will need to engage
in a more probing inquiry to determine whether the




 125
     614 F.3d at 91–92. Judge Ambro states that “the two-
step Marzzarella framework controls all Second Amendment
challenges,” (Ambro Op. Typescript at 40), and I agree. Yet
Marzzarella plainly stated that “the better reading” of Heller
is that felons are disqualified from asserting their Second
Amendment rights. Marzzarella, 614 F.3d at 91–92. Judge
Ambro departs from this reading to leave open the possibility
of “a successful as-applied challenge by a state-law felon” to
§ 922(g)(1), although he cautions that the “individual’s
burden would be extraordinarily high—and perhaps even
insurmountable.” (Ambro Op. Typescript at 33–34 n.6.)
Nowhere does Judge Ambro explain how we can
simultaneously proclaim our fidelity to Marzzarella while at
the same time ignoring its reading of Heller’s key language.
 126
       Heller, 554 U.S. at 626–27.




                               39
challenged law is constitutionally valid. 127

       And here we come back to the word “presumptively.”
In a case involving “laws forbidding the carrying of firearms
in sensitive places” or “laws imposing conditions and
qualifications on the commercial sale of arms,” 128 the word
“presumptively” is important. It signals to lower court judges
that they must think carefully about whether the challenged
regulation is truly analogous to “longstanding prohibitions”
upon which Heller does not “cast doubt.” In the parlance of
our Court’s jurisprudence, not all such regulations will be
“presumptively lawful” enough to satisfy the inquiry at
Marzzarella step-one.

      But with respect to the felon-in-possession ban, there
is no work for the word “presumptively” to do. Section
922(g)(1) codifies the restriction on criminals possessing

 127
     See, e.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121,
1124–29 (10th Cir. 2015), cert. denied, 136 S. Ct. 1486
(2016) (considering whether a federal regulation limiting the
carrying of firearms in post office parking lots was
constitutionally permissible in view of Heller’s guidance
about carrying of firearms in government buildings); Nat’l
Rifle Ass’n of Am., Inc., 700 F.3d at 203 (considering the
constitutionality of a federal law prohibiting the sale of
firearms to 18-to-20-year-olds by federally licensed firearms
dealers, and concluding that the law “is consistent with a
longstanding, historical tradition, which suggests that the
conduct at issue falls outside the Second Amendment’s
protection”).
 128
       Heller, 554 U.S. at 626–27.




                               40
firearms in a manner that reflects longstanding history and
tradition—and the Supreme Court has explicitly told us that
Heller does not “cast doubt” on such a law. 129 This is not to
say that Congress could never press its luck. If Congress
were to expand § 922(g)(1) beyond its traditional scope by,
for example, banning the possession of firearms by persons
convicted of crimes punishable by six months’ imprisonment,
it might well run afoul of the Second Amendment’s
protections. But such a law would be outside of Heller’s safe
harbor for “longstanding prohibitions,” requiring courts—
again, in the parlance of our Circuit—to proceed to
Marzzarella step-two and assess such a law under some form
of heightened constitutional scrutiny. 130

       Consequently, I disagree with Judge Ambro’s view
that courts must “determin[e] whether crimes are serious
enough to destroy Second Amendment rights” on a case-by-
case basis. 131 To my mind, the validity of the felon-in-
possession ban is not so precarious. Congress has made a

 129
       Id. at 626.
 130
     The same could be said of the ban on mentally-ill persons
possessing firearms. As currently codified, § 922(g)(4)
makes it unlawful for any person to possess a gun “who has
been adjudicated as a mental defective or . . . committed to a
mental institution,” and Heller does not “cast doubt” on that
law. But if Congress were to expand the current restriction
to, for example, all persons who have ever seen a mental
health professional, Heller’s safe harbor for “longstanding
prohibitions” would no longer apply.
 131
       Ambro Op. Typescript at 29.




                              41
reasoned judgment that crimes currently covered by
§ 922(g)(1)—felonies and misdemeanors punishable by more
than two years’ imprisonment—are serious enough to support
disarmament. That categorical rule is consonant with history
and tradition, and Heller does not “cast doubt” on it at all. 132

III.     Marzzarella Step-Two and the Proper Application
         of Constitutional Scrutiny

        Even if, out of an abundance of caution, we were to
move on to step two of the Marzzarella analysis and apply
heightened scrutiny—a step I do not believe is necessary—
Congress’s interests in preventing gun violence are
sufficiently important, and the felon-in-possession statute
sufficiently tailored, that § 922(g)(1) would survive the
plaintiffs’ challenges.

        My colleagues disagree. Judge Hardiman believes that
§ 922(g)(1) is so destructive of Second Amendment rights
that, at least as applied to non-violent criminals, it is per se
unconstitutional. Judge Ambro, meanwhile, insists that we
must apply constitutional scrutiny at the level of people like
the plaintiffs, and that if the government cannot show that
“disarming people like them will promote the responsible use
of firearms,” or that people “like them remain potentially
irresponsible after many years of apparently responsible
behavior,” 133 then application of § 922(g)(1) is
unconstitutional. By contrast, I believe that conducting a
tailoring analysis at Judge Ambro’s level of specificity is

 132
       554 U.S. at 626.
 133
       Ambro Op. Typescript at 39 (emphasis added).




                               42
problematic. Even in the First Amendment context, there are
some laws whose structure and purpose are incompatible with
person-specific constitutional challenges. For the reasons that
follow, § 922(g)(1) is such a law.

         A.     Intermediate Scrutiny Is the Appropriate
                Standard for These Cases

        In Marzzarella, we opted to apply intermediate rather
than strict scrutiny to test the constitutionality of a federal
statute. Looking to First Amendment jurisprudence for
guidance, we asked whether (i) the challenged law involved a
government interest that was either “significant,”
“substantial,” or “important,” and (ii) whether “the fit
between the challenged regulation and the asserted objective
[was] reasonable, not perfect.” 134 The law challenged in
Marzzarella, 18 U.S.C. § 922(k), makes it unlawful to
possess a firearm with an obliterated serial number. We
concluded that the law survived intermediate scrutiny because
the government had a substantial interest “in enabling the
tracing of weapons via their serial numbers,” and Marzzarella
had failed to offer any “lawful purpose for which a person
would prefer an unmarked firearm” to a marked one. 135

         In   choosing   to   apply   intermediate    scrutiny,

 134
       614 F.3d at 98.
 135
     Id. at 98–99. For good measure, we noted that we would
uphold the constitutionality of § 922(k) even if we applied
strict scrutiny because, in our view, the statute was narrowly
tailored to serve a compelling government interest. See
id. at 99–101.




                              43
Marzzarella discerned an important distinction in Heller.
While Heller clearly rejected rational-basis review, 136 it did
not select either intermediate or strict scrutiny as the
appropriate standard for assessing the constitutionality of the
District of Columbia’s gun regulations. Instead, Heller stated
that those regulations were unconstitutional “[u]nder any of
the standards of scrutiny . . . applied to enumerated
constitutional rights.” 137 Marzzarella interpreted Heller as
suggesting that firearm regulations fall along a continuum,
with laws like the District of Columbia’s handgun ban falling
“at the far end of the spectrum of infringement.” 138

       Marzzarella thus drew a distinction between laws that
burden the “core . . . right of law-abiding citizens to possess
[certain] weapons for self-defense in the home,” on the one
hand, and laws that “do[] not severely limit the possession of
firearms,” 139 on the other. Marzzarella concluded that courts
should apply strict scrutiny to test the constitutional validity
of the former kind of regulations, while they should apply
intermediate scrutiny to test the validity of other, less



 136
    See Heller, 554 U.S. at 628 n.27 (“If all that was required
to overcome the right to keep and bear arms was a rational
basis, the Second Amendment would be redundant with the
separate constitutional prohibitions on irrational laws, and
would have no effect.”).
 137
       Id. at 628.
 138
       614 F.3d at 97.
 139
       Id. at 92, 97.




                              44
burdensome regulations. 140

       We reaffirmed this framework in Drake v. Filko, 141
where we considered the constitutionality of New Jersey’s
regulations governing the issuance of permits to carry guns in
public. Drake reasoned that “the Second Amendment can
trigger more than one particular standard of scrutiny,
depending, at least in part, upon the type of law challenged
and the type of Second Amendment restriction at issue.” 142 It
also concluded that courts should apply intermediate scrutiny
unless the challenged regulation burdens the “core” Second
Amendment right. 143

       Just as intermediate scrutiny was the correct standard
to apply in Marzzarella and Drake, it is also the correct
standard to apply here. The felon-in-possession ban, to the
extent it burdens Second Amendment rights at all, does not
impinge on the rights of “law-abiding, responsible


 140
    See id. at 97 (“The distinction between limitations on the
exercise of protected conduct and regulation of the form in
which that conduct occurs also appears in the First
Amendment context. . . . Accordingly, we think § 922(k) also
should merit intermediate, rather than strict, scrutiny.”).
 141
       724 F.3d 426.
 142
    Id. at 435 (quoting United States v. Reese, 627 F.3d 792,
801 (10th Cir. 2010)).
 143
     Id. at 436; see also id. at 436 & n.14 (noting a few subtle
differences between the standard for intermediate scrutiny
articulated by the various circuits).




                              45
citizens.” 144 Rather, it constrains the rights of persons who,
by virtue of their prior criminal conduct, fall outside the core
of the Second Amendment’s protections.

        Several of our sister circuits have assessed challenges
to other provisions of § 922(g) using this same approach. In
United States v. Carter, 145 for example, the Fourth Circuit
considered a challenge to 18 U.S.C. § 922(g)(3), which
prohibits firearm possession by “any person . . . who is an
unlawful user of or addicted to any controlled substance.”
Citing Marzzarella with approval, Carter applied
intermediate scrutiny to assess the validity of the statute. 146 It
reasoned that a person within the scope of § 922(g)(3)—that
is, a user of controlled substances—could not fairly claim to
be asserting the “core” Second Amendment right of “law-
abiding, responsible citizens.” 147 For the same reason, the
Fourth Circuit has applied intermediate scrutiny to assess the
validity of those provisions of § 922(g) that limit the
possession of firearms by persons subject to protective orders
and by persons who have committed misdemeanor crimes of




 144
       Heller, 554 U.S. at 635.
 145
       669 F.3d 411 (4th Cir. 2012).
 146
       Id. at 417.
 147
       Id. at 416 (quoting Heller, 554 U.S. at 635).




                                  46
domestic violence. 148 The decisions of several other circuits
are in accord. 149

        Thus, even assuming that Binderup and Suarez fall
within the Second Amendment’s protections, I would join our
sister circuits in holding that their prior criminal convictions
place them outside the core “right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” 150 For
this reason, intermediate scrutiny is the correct standard under
which to assess their challenges.


 148
      See United States v. Chapman, 666 F.3d 220, 226
(4th Cir. 2012) (“Chapman’s claim is not within the core right
identified in Heller—the right of a law-abiding, responsible
citizen to possess and carry a weapon for self-defense.”)
(considering a challenge to § 922(g)(8)); Chester, 628 F.3d at
682–83 (“Although Chester asserts his right to possess a
firearm in his home for the purpose of self-defense, we
believe his claim is not within the core right identified in
Heller . . . by virtue of Chester’s criminal history as a
domestic violence misdemeanant.”) (considering a challenge
to § 922(g)(9)).
 149
     See United States v. Chovan, 735 F.3d 1127, 1138
(9th Cir. 2013) (“Section 922(g)(9) does not implicate [the]
core Second Amendment right because it regulates firearm
possession for individuals with criminal convictions.”);
Schrader, 704 F.3d at 989 (applying intermediate scrutiny
“[b]ecause common-law misdemeanants as a class cannot be
considered law-abiding and responsible”); Reese, 627 F.3d at
802 (applying intermediate scrutiny to § 922(g)(8)).
 150
       Heller, 554 U.S. at 635.




                                  47
         B.    Judge Hardiman’s Rejection of
               Heightened Scrutiny

        Before proceeding any further, I think it is important to
pause in order to address a profound doctrinal disagreement
between myself and Judge Hardiman. Like Judge Ambro and
me, Judge Hardiman believes that we determine the proper
scope of the Second Amendment by looking to history and
tradition. Reviewing the relevant historical sources, Judge
Hardiman concludes that, as a matter of past practice, the
only persons subject to disarmament were those who were
dangerous. Judge Ambro and I obviously disagree with that
assessment, but I am happy to acknowledge that reasonable
minds could differ on this score. At that point, however,
Judge Hardiman makes what I believe to be a serious
doctrinal error.

       Having concluded that Congress may permissibly
disarm persons likely to commit violent acts, Judge Hardiman
then defends the proposition that all other applications of
§ 922(g)(1) are per se unconstitutional. No recourse to
heightened scrutiny or means-ends balancing is necessary.
After all, Heller struck down a local ordinance that
completely prevented citizens from possessing firearms in
their homes for self-defense. Section 922(g)(1) has the same
effect with respect to felons and certain misdemeanants. So,
Judge Hardiman concludes, § 922(g)(1) must be
unconstitutional in every application to non-violent criminals
because it “eviscerates” their Second Amendment rights. 151 I
agree with Judge Ambro that such an approach is inconsistent
with the development of Second Amendment doctrine in this

 151
       Hardiman Op. Typescript at 18, 50.




                               48
and other circuits. 152

        In addition, the rejection of heightened scrutiny in this
context seems out-of-step with Heller itself. As discussed
earlier, Heller says that the “core” Second Amendment right
is the “right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” 153 Non-violent criminals are,
by definition, not “law-abiding.”            Insofar as Judge
Hardiman’s opinion holds that non-violent criminals have an
absolute, inviolable right to keep guns in their homes for self-
defense, Heller seems to disagree.

       The advantage of heightened scrutiny is that it allows
us to think about how Congress (and, by corollary, we as a
polity) can tackle real-world challenges within constitutional
boundaries. Such an inquiry necessarily requires us to think
about the connection between means and ends, and therefore
to debate the seriousness of the problems we face—including
gun violence—and the permissible means of addressing them.
While history is of course important, and in many cases will
be dispositive, the tiers of scrutiny provide us with a useful
analytical framework for assessing the constitutionality of
laws that burden Second Amendment rights—even those, like
§ 922(g)(1), that disarm certain persons altogether.

         C.     The Felon-in-Possession Ban Survives
                Intermediate Scrutiny

         Applying intermediate scrutiny, we ask whether the

 152
       Ambro Op. Typescript at 15–18.
 153
       554 U.S. at 635.




                               49
challenged law involves a government interest that is
“significant,” “substantial,” or “important,” and then assess
whether “the fit between the challenged regulation and the
asserted objective [was] reasonable, not perfect.” 154 Section
922(g)(1) easily clears those hurdles.

       Courts have identified Congress’s objective in passing
§ 922(g) as “keep[ing] guns out of the hands of presumptively
risky people” and “suppressing armed violence.” 155 As
Congress explained when passing the 1968 modifications to
the statute, “[T]he ease with which any person can acquire
firearms other than a rifle or shotgun (including
criminals . . . ) is a significant factor in the prevalence of
lawlessness and violent crime in the United States.” 156

        Our Court has also said that governments
“undoubtedly [have] a significant, substantial and important
interest in protecting [their] citizens’ safety.” 157 As the
Second Circuit stated shortly after the horrific shootings in
Newtown, Connecticut, “[t]he regulation of firearms is a
paramount issue of public safety, and recent events in this
circuit are a sad reminder that firearms are dangerous in the


 154
       Marzzarella, 614 F.3d at 98.
 155
     Yancey, 621 F.3d at 683–84 (citing S. Rep. No. 90–1501,
at 22 (1968)).
 156
    Pub. L. No. 90–351, § 901(a)(2), 82 Stat. 197, 225
(1968).
 157
    Drake, 724 F.3d at 437 (citing United States v. Salerno,
481 U.S. 739, 745 (1987)) (punctuation modified).




                                50
wrong hands.” 158

        Having established that the government’s objective is a
substantial one, we next ask if the challenged law is a
“reasonable fit” to carry out the government’s purposes. In
making that assessment, the “State bears the burden of
justifying its restrictions [and] it must affirmatively establish
the reasonable fit we require.” 159 Seeking to satisfy this
burden, the government points to numerous studies that
explore the link between past criminal conduct and future
crime, including gun violence. 160 The plaintiffs challenge the

 158
     Osterweil v. Bartlett, 706 F.3d 139, 143 (2d Cir.)
(O’Connor, J.), certifying question to the New York Court of
Appeals, certified question answered, 999 N.E.2d 516
(N.Y. 2013); see also N.Y. State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (“It is beyond cavil
that both states have substantial, indeed compelling,
governmental interests in public safety and crime
prevention.” (internal quotation marks and citation omitted)).
 159
    Drake, 724 F.3d at 453 (quoting Bd. of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).
 160
     See Gov’t Br. in Binderup at 28 (citing Bureau of Justice
Statistics, Recidivism of Prisoners Released in 1994, at 6
(2002); Mona A. Wright et al., Effectiveness of Denial of
Handgun Purchase to Persons Believed To Be at High Risk
for Firearm Violence, 89 Am. J. of Pub. Health 88, 89
(1999)). The government also points out that the risk of
recidivism is particularly high for sex offenders like Binderup
irrespective of whether or not states categorize their crimes as
felonies or as serious misdemeanors.




                               51
relevance of the government’s cited studies, asserting that
while they may show a connection between past criminal
conduct and gun violence, they do not show such a link with
respect to criminals who share their characteristics and who
committed offenses similar to theirs. 161 Judges Ambro and
Hardiman share this criticism.

        Several courts have—correctly, in my view—refused
to parse the government’s evidence as finely as the plaintiffs
ask us to. 162 The question is not whether someone exactly
like the plaintiffs poses a threat to public safety. The question
is whether “the fit between the challenged regulation and the
asserted objective [is] reasonable, not perfect.” 163 The
plaintiffs seem to want something more.



 161
     We might also consider the fact that, as we noted in
Drake, legislatures generally crafted the regulatory schemes
governing firearms before Heller concluded that the Second
Amendment protected an individual right to bear arms.
Consequently, the statistical evidence of “fit” may be lacking
in certain instances because the drafters of the regulations did
not realize they would need to compile it. See Drake,
724 F.3d at 437–38.
 162
     See, e.g., Yancey, 621 F.3d at 685 (“[M]ost felons are
nonviolent, but someone with a felony conviction on his
record is more likely than a nonfelon to engage in illegal and
violent gun use.” (citing United States v. Lane, 252 F.3d 905,
906 (7th Cir. 2001)).
 163
    Marzzarella, 614 F.3d at 98; see also Drake, 724 F.3d at
436 (same).




                               52
        Assessing the strength of the government’s evidence as
assiduously as the plaintiffs demand would also raise
separation of powers concerns, at least in the context of
intermediate scrutiny. We generally say that “[i]t is the
legislature’s job, not ours, to weigh conflicting evidence and
make policy judgments.” 164 Our Court has cautioned that
“conflicting empirical evidence . . . does not suggest, let alone
compel, a conclusion that the ‘fit’ between [a challenged
firearm regulation] and public safety is not ‘reasonable.’” 165
Other courts have said that Congress may regulate firearms
on the basis of “correlational evidence” that does not
necessarily “prove a causal link” between the conduct at issue
and a particular provision of § 922(g). 166 In the words of the
D.C. Circuit, “the legislature is ‘far better equipped than the
judiciary’ to make sensitive public policy judgments (within
constitutional limits) concerning the dangers in carrying
firearms and the manner to combat those risks.” 167 Judge
Wilkinson of the Fourth Circuit has been even more direct:
“This is serious business. We do not wish to be even
minutely responsible for some unspeakably tragic act of
mayhem because in the peace of our judicial chambers we



 164
     Kachalsky v. Cty. of Westchester, 701 F.3d 81, 99
(2d Cir. 2012).
 165
       Drake, 724 F.3d at 439.
 166
      United States v. Carter, 750 F.3d 462, 469 (4th Cir.),
cert. denied, 135 S. Ct. 273 (2014).
 167
     Schrader, 704 F.3d at 990 (quoting Kachalsky, 701 F.3d
at 97).




                                 53
miscalculated as to Second Amendment rights.” 168

       Against this backdrop, I conclude that the
government’s evidence adequately establishes a connection
between past criminal conduct and future gun violence. I also
conclude that Congress’s decision to disarm felons and those
who commit misdemeanors punishable by more than two
years in prison is reasonably tailored to preventing such
violence.




 168
      United States v. Masciandaro, 638 F.3d 458, 475
(4th Cir. 2011). I do not take Judge Wilkinson’s admonition
to imply that judges are incapable of making decisions about
whether particular persons are dangerous. Every day judges
decide whether to grant bail, impose prison time, or revoke a
period of supervised release—and all of these determinations
touch on dangerousness. The key point is that, in these
contexts, there are mechanisms in place for informing judicial
discretion. In sentencing, revocation, and bail hearings, for
example, judges have the benefit of presentence and pretrial
services reports, input from trained probation and pretrial
services professionals, and recommendations from
prosecutors.
  By contrast, there are no tools readily at-hand for deciding
whether an individual person should have access to a firearm
despite a past criminal conviction. See also infra at pages
66−69 (discussing previous cases that have recognized the
inherent difficulties in making such determinations).




                             54
       D.    Tailoring § 922(g)(1) Too Narrowly Is
             Problematic

        The foregoing analysis, of course, speaks to the issue
of tailoring with respect to the connection between the risk of
gun violence and the universe of offenses that trigger
§ 922(g)(1) (i.e., felonies and misdemeanors punishable by
more than two years in prison). The plaintiffs believe that the
statute must be tailored more narrowly still—indeed, so
narrowly that it takes account of their individual
characteristics.

       And here we come to the difficult conceptual issue in
this case: is this sort of as-applied challenge to § 922(g)(1)
even permissible? This issue has divided the Courts of
Appeals, caused endless trouble for the government at oral
argument, and has at times perplexed me as well. But I
ultimately conclude that the answer must be “no.” 169

        The notion of an as-applied challenge is familiar to us
in the context of First Amendment law. In such cases, the
government enacts some kind of law limiting speech for
either logistical reasons (such as time, place, and manner
restrictions) or to promote its own conception of the public
good (such as regulations governing campaign financing). In
 169
      I offer here an alternative assessment of the problem of
as-applied challenges in the context of intermediate scrutiny
(i.e., at Marzzarella step-two). Because I believe that felons
and serious misdemeanants can be disarmed at Marzzarella
step-one, I would hold as an initial matter that the plaintiffs
have been disqualified from the exercise of their Second
Amendment rights altogether.




                              55
such situations, it is entirely predictable that a certain number
of citizens will raise the argument that the law makes little
sense as applied to them. These arguments typically sound in
overbreadth. The normal claim is that a person’s inclusion
within the scope of the law has no meaningful connection to
the government’s purported objective, leading to an
impermissible infringement on that person’s free speech
rights.

        But Second Amendment limitations like the felon-in-
possession ban and the ban on mentally-ill persons possessing
guns are different—and the reason they’re different is
because, in this context, the government’s objective is neither
logistical nor abstract. It is, quite simply, to prevent armed
mayhem and death. 170 As a result, when we conduct a
tailoring analysis in such a case, we must assess whether the
challenged law is reasonably tailored to prevent future
violence.



 170
      The Supreme Court’s decision in Vartelas v. Holder,
132 S. Ct. 1479 (2012), reiterated these congressional
purposes. Vartelas addressed whether a provision of the
immigration laws could be applied retroactively (that is, to
conduct occurring before the law’s enactment).             The
government tried to draw an analogy between the challenged
statute and § 922(g). The Court, rejecting that comparison,
stated that the law at issue in Vartelas targeted “past
misconduct,” id. at 1489, whereas “‘longstanding prohibitions
on the possession of firearms by felons’ . . . target a present
danger, i.e., the danger posed by felons who bear arms.” Id.
(quoting Heller, 554 U.S. at 626).




                               56
       And this is why as-applied challenges to § 922(g)(1)
are so problematic. Binderup and Suarez are, in effect,
saying, “Trust us: we are not the kind of people who will
cause future gun violence.” The problem is that it is
practically impossible to make this kind of individualized
prediction with any degree of confidence. Mistakes—costly
ones—are simply too likely.

        That is not my judgment, but rather the judgment of
Congress itself. A separate provision of the federal gun laws,
18 U.S.C. § 925(c), states that “[a] person who is prohibited
from possessing, shipping, transporting, or receiving firearms
or ammunition may make application to the Attorney General
for relief from the disabilities imposed by Federal laws.” The
Attorney General may “grant such relief if it is established to
his satisfaction that the circumstances regarding the disability,
and the applicant’s record and reputation, are such that the
applicant will not be likely to act in a manner dangerous to
public safety and that the granting of the relief would not be
contrary to the public interest.” 171 If an application is denied,
the applicant may petition a district court for relief. As it
turns out, this “relief provision has been rendered
inoperative” by virtue of the fact that “Congress has
repeatedly barred the Attorney General from using
appropriated funds ‘to investigate or act upon [relief]
applications.’” 172

         Congress defunded this provision in 1992.          In a

 171
       18 U.S.C. § 925(c).
 172
    Logan, 552 U.S. at 28 n.1 (alteration in original) (quoting
United States v. Bean, 537 U.S. 71, 74–75 (2002)).




                               57
Department of Justice appropriations statute, it provided that
“none of the funds appropriated herein shall be available to
investigate or act upon applications for relief from Federal
firearms disabilities under 18 U.S.C. 925(c).” 173 That
embargo on funds has remained in place ever since. And why
did Congress effectively write § 925(c) out of the statute
books? Because it concluded that the task of granting
individual applications for relief from § 922(g)(1) was too
prone to error. A 1992 Senate report stated that the Justice
Department’s review of applications was “a very difficult and
subjective task which could have devastating consequences
for innocent citizens if the wrong decision is made,” 174 and
noted that the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) spent “approximately 40 man-years . . . annually to
investigate and act upon these investigations and
applications.” 175 Similarly, a later House report stated that
“too many of these felons whose gun ownership rights were
restored went on to commit violent crimes with firearms,”
and concluded that “[t]here is no reason to spend the
Government[’s] time or taxpayer’s money to restore a
convicted felon’s right to own a firearm.” 176

        In other words, Congress reviewed the evidence from
its prior regime of what were, in effect, as-applied challenges

 173
     Treasury, Postal Service, and General Government
Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat.
1729, 1732 (1992).
 174
       S. Rep. No. 102-353, at 19 (1992).
 175
       Id. at 20.
 176
       H.R. Rep. No. 104-183, at 15 (1995).




                               58
to § 922(g)(1) and concluded that such a system was
unworkable. This should have a profound impact on our
tailoring analysis. Under intermediate scrutiny, we ask
whether there is a “reasonable” fit between the challenged
regulation and the government’s objective. 177 Here, Congress
tried the plaintiffs’ way of doing things and concluded that it
was too error-prone to support the government’s objective of
preventing armed violence. 178        There were too many
mistakes—and, unlike in the First Amendment context, those
mistakes were potentially fatal.

       Notwithstanding Congress’s experience with § 925(c),
the plaintiffs seem to believe that by shoehorning their
complaints about § 922(g)(1)’s scope into the rubric of “as-
applied challenges,” they necessarily force us to assess their
individual characteristics rather than rely on Congress’s
categorical rule. I disagree. Even in the First Amendment
context, where courts routinely assess as-applied challenges

 177
       Marzzarella, 614 F.3d at 98.
 178
      As one of our colleagues in the D.C. Circuit has put it,
“the reality of gun violence means our constitutional analysis
should incorporate deference to the legislature.” Heller v.
District of Columbia, 801 F.3d 264, 283 (D.C. Cir. 2015)
(Henderson, J., concurring in part and dissenting in part)
(citing Holder v. Humanitarian Law Project, 561 U.S. 1,
34−36 (2010)). Deference in this context is even more
appropriate when Congress has not simply made a policy
judgment about preventing gun violence, but has actually
experimented with a system of gun regulation and
concluded—based on lived experience—that it was
unworkable.




                                59
to speech-limiting laws, there are circumstances where such
challenges must fail in the face of reasonable deference to
legislative judgments.

        The Supreme Court’s decision in United Public
Workers of America (C.I.O.) v. Mitchell 179 is a perfect
example. The Supreme Court there confronted an as-applied
challenge to the Hatch Act, which bans government
employees from engaging in certain kinds of partisan political
activity, including some forms of political speech.
Congress’s goal in passing the Act was “to promote
efficiency and integrity in the discharge of official duties.” 180
The challenger, a “skilled mechanic” at the United States
Mint, argued that he was simply not the type of government
employee whose conduct was likely to raise integrity
concerns. 181 Structurally, this argument is identical to the one
the plaintiffs make here—i.e., that they are too far removed
from the core group of people who pose the risk of harm that
Congress sought to address by passing § 922(g)(1) for that
law to be constitutional as applied to them.

        The Supreme Court rejected that argument. In its
view, the Hatch Act survived constitutional scrutiny because
the conduct it outlawed was “reasonably deemed by Congress
to interfere with the efficiency of the public service.” 182 The

 179
       330 U.S. 75 (1947).
 180
    Id. at 96–97 (quoting Ex parte Curtis, 106 U.S. 371, 373
(1882)).
 181
       Id. at 101.
 182
       Id.




                               60
Court recognized that, given his role at the Mint, the
challenger was situated somewhat differently than white-
collar employees who might be more inclined to take on
management roles in political campaigns. Even so, the Court
did not think these distinctions were constitutionally
dispositive. 183 As the Court observed:

         Whatever differences there may be between
         administrative employees of the Government
         and industrial workers in its employ are
         differences in detail so far as the constitutional
         power under review is concerned. Whether
         there are such differences and what weight to
         attach to them, are all matters of detail for
         Congress. . . .

                          *      *      *

         When actions of civil servants in the judgment
         of Congress menace the integrity and the
         competency of the service, legislation to
         forestall such danger and adequate to maintain
         its usefulness is required. The Hatch Act is the
         answer of Congress to this need. 184

       The logic of Mitchell applies with equal force to the
present case. Here, too, Congress has passed a law to respond
to a public danger. Here, too, individualized predictions are
impossible with any degree of accuracy. Here, too, a regime

 183
       Id. at 102.
 184
       Id. at 102–03.




                                61
of person-by-person regulation would present grave problems
of administrability. But here, unlike in Mitchell, the potential
harm is not only serious and widespread, but also deadly.

        Mitchell instructs us that Congress has the power in
such circumstances to impose a complete ban on the exercise
of a constitutional right by a category of persons who, in its
reasonable estimation, pose a threat to the public. While
courts must, of course, entertain constitutional challenges to
statutes that infringe on constitutional rights, Mitchell makes
it clear that there are some laws with respect to which as-
applied challenges will categorically fail. I believe that
§ 922(g)(1) is such a law. 185

       Moreover, insofar as the plaintiffs’ claims sound in
overbreadth, it is worth emphasizing that the federal regime
for regulating firearm possession by convicts has numerous
safety valves that make any complaint about unfairness far
less persuasive.

       First, we should remember that § 922(g)(1) is a statute
predicated on principles of federalism.          Rather than
specifying a list of qualifying offenses, “[i]t looks to state
 185
     The First Circuit, too, has recognized that categorical
rules are sometimes constitutionally permissible in the
Second Amendment context. See United States v. Booker,
644 F.3d 12, 23 (1st Cir. 2011) (“[T]he Second Amendment
permits categorical regulation of gun possession by classes of
persons—e.g., felons and the mentally ill—rather than
requiring that restrictions on the right be imposed only on an
individualized, case-by-case basis.” (internal citation
omitted)).




                              62
law” and imposes “restrictions on certain convicts based on
decisions made by state legislatures and courts.” 186 In this
way, the federal statute leaves the judgment about which
offenses should trigger disarmament to the discretion of state
legislators who are, at least in theory, closer to the lived
experience of their constituents. To put it another way,
Congress did not decide that the plaintiffs’ convictions would
have the effect of preventing them from owning firearms;
rather, their state legislatures did.

       At this point, one might reasonably object that, by
refusing to permit as-applied challenges to § 922(g)(1), we
give legislatures far too much power to disarm citizens. After
all, what prevents a state from passing a law saying that
jaywalking is punishable by five years in prison? Or a
speeding ticket? Or littering? “Surely,” one might think,
“Congress cannot disarm people who commit those
offenses?”

        I understand and appreciate these concerns. But
institutional considerations lead me to conclude that Congress
may permissibly use the existence of a prior criminal
conviction as a trigger for collateral consequences under
federal law. This necessarily means that states have near total
control over what offenses will trigger those federal
consequences. If the citizens of a particular state believe that
a criminal offense is too minor to trigger disarmament, their
remedy is to petition the state legislature to amend the law—
not to seek redress in the federal courts. Indeed, there is
evidence that state authorities are perfectly capable of
assessing the consequences of § 922(g) and acting to counter

 186
       Chovan, 735 F.3d at 1151 (Bea, J., concurring).




                                63
them if they feel that doing so is appropriate. 187 The
alternative, a regime of judges serving as a super-legislature
to review the reasonableness of the criminal codes in all
50 states, is inconsistent with the way we have regulated gun
ownership for more than half a century.

        To put it another way, § 922(g) reflects a
congressional policy judgment that states should have a role
in determining what kinds of misdemeanor offenses will
trigger disarmament. That is a question over which the states
will predictably disagree.        The Supreme Court itself
recognized as much in Logan v. United States. 188 The
petitioner there asserted that his conviction for violating
§ 922(g)(1) was unlawful because, properly construed, that
statute did not apply to state offenses—like his—that did not




 187
    See Robert A. Mikos, Enforcing State Law in Congress’s
Shadow, 90 Cornell L. Rev. 1411, 1463–64 & nn.187, 188
(2005) (finding that expungement of domestic violence
convictions increased following the enactment of
§ 922(g)(9)); see also Logan, 552 U.S. at 33 (recounting that
“Wisconsin no longer punishes misdemeanors by more than
two years of imprisonment”).
 188
       552 U.S. 23, 34–36 (2007).




                               64
trigger any loss of civil rights. 189 The Supreme Court found
that argument unpersuasive. In the course of its analysis, it
favorably cited McGrath v. United States, 190 a Second Circuit
opinion stating that “anomalies” in the application of the
federal firearms laws are “inevitable” when those laws
“depend on the differing laws and policies of the several
states.” 191 Logan also recognized that application of the
federal firearm laws would be more uniform if “federal rather
than state law define[d] a conviction for purposes of
[§ 922].” 192 Even so, Logan treated the issue of how to
balance uniformity and state-by-state variation in this context
as a policy question properly reserved to the legislative




 189
      See id. at 26. The petitioner’s argument relied on
18 U.S.C. § 921(a)(20), which provides that “[a]ny
conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights
restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restoration
of civil rights expressly provides that the person may not
ship, transport, possess, or receive firearms.”
 190
       60 F.3d 1005 (2d Cir. 1995).
 191
     Id. at 1009; see also Logan, 552 U.S. at 33–34 (quoting
the same passage).
 192
       552 U.S. at 35.




                               65
branch. 193

        Second, federal law lifts the felon-in-possession ban
whenever a conviction “has been expunged, or set aside,” or
is one “for which a person has been pardoned or has had civil
rights restored.” 194 This is a second way in which the statute
devolves regulatory power to state authorities.          As a
consequence, § 922(g) “in its normal application does not
create a perpetual and unjustified disqualification” from the
Second Amendment right. 195 As the Ninth Circuit has
explained, any burden imposed by the provisions of § 922(g)
“is lightened by these exceptions” in ways that can factor into




 193
     See id. (“We may assume, arguendo, that when Congress
revised § 921(a)(20) in 1986 . . . it labored under the
misapprehension that all offenders—misdemeanants as well
as felons—forfeit civil rights, at least temporarily. Even
indulging the further assumption that courts may repair such a
congressional oversight or mistake, we could hardly divine
the revision the Legislature would favor.” (footnote omitted)).
 194
     18 U.S.C. § 921(a)(20); see also United States v.
Leuschen, 395 F.3d 155, 159–60 (3d Cir. 2005) (discussing
the meaning of “civil rights” in our circuit).
 195
      Skoien, 614 F.3d at 645 (discussing expungement as a
way to lift the ban imposed by § 922(g)(9)); see also id.
(“Some of the largest states make expungement available as
of right to misdemeanants who have a clean record for a
specified time. California, for example, has such a program.”
(citing Cal. Penal Code § 1203.4a)).




                              66
the relevant constitutional calculus. 196

       Third, there is the right to petition Congress itself.
With respect to § 925(c), some members of Congress have
announced their support for appropriating the funds necessary
for the Justice Department to once again consider applications
for relief from the felon-in-possession ban. 197 Whether
Congress will do so in light of its prior determination that
such a regime is unworkable is an open question.

       There is also the possibility of obtaining offense-
specific carve-outs from § 922(g)(1). For example, another
provision of the federal gun laws says that the term “crime
punishable by imprisonment for a term exceeding one year”
in § 922(g)(1) “does not include . . . any Federal or State
offenses pertaining to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating
to the regulation of business practices.” 198 If the plaintiffs
believe that the crimes of corrupting a minor and carrying a
firearm without a license belong on that list, their efforts may
be more fruitfully directed towards the national legislature


 196
       Chovan, 735 F.3d at 1138.
 197
     See Press Release, Rep. Ken Buck, Buck Fights for
Second Chance at Second Amendment Rights (June 2, 2015),
https://buck.house.gov/media-center/press-releases/
buck-fights-restore-second-amendment-rights (last visited
Sept. 2, 2016).
 198
      18 U.S.C. § 921(a)(20)(A); see also United States v.
Schultz, 586 F.3d 526, 529–31 (7th Cir. 2009) (considering
the proper application of this statutory carve-out).




                                67
instead of the courts.

        Accordingly, I believe that § 922(g)(1) is a reasonable
fit to carry out the government’s purpose of reducing armed
violence. Congress has made a reasoned judgment that
persons who commit felonies and misdemeanors punishable
by more than two years in prison are likelier to commit future
gun violence than law-abiding citizens. That judgment is
informed by Congress’s experience with § 925(c), which it
concluded was unworkable and dangerous because, in its
view, that law did not provide a way for the government to
make accurate judgments about the safety of re-arming
particular people.

       I would therefore uphold § 922(g)(1) under
intermediate scrutiny, both as applied to these plaintiffs and
as applied to future plaintiffs who might bring similar
challenges.

IV.    The Problems with As-Applied Challenges to
       § 922(g)(1) Are Insurmountable

       Finally, it is important to step back and take stock of
what the plaintiffs are actually asking us to do, which is to
create an entirely new judicial process for resolving as-
applied challenges to § 922(g)(1). Such an approach is both
doctrinally unnecessary and administratively unworkable.

       The current rule for determining whether § 922(g)(1)
applies is about as straightforward as it gets: “the fact of a
felony conviction imposes a firearm disability until the
conviction is vacated or the felon is relieved of his disability




                              68
by some affirmative action.” 199 The advantage of this scheme
is its simplicity. The alternative, “a free floating prohibition,”
would be “very hard to administer.” 200 Indeed, it would
create a never-ending stream of “serious problems of
administration, consistency and fair warning.” 201

       This becomes apparent once we consider how a regime
of as-applied challenges would function in the real world.
We previously examined this issue in Pontarelli v. United
States Department of the Treasury. 202 That case arose from
Congress’s previously discussed decision in 1992 to defund
§ 925(c). In the early 2000s, plaintiffs began filing suits in
federal court alleging that, by refusing to process their
applications due to lack of funding, the Justice Department
had effectively denied those applications. Because § 925(c)
provides for judicial review of such denials, these litigants
asserted that they could ask federal district courts to “review”
their applications in the first instance.

       Pontarelli rejected that argument. Sitting en banc, we
concluded that Congress’s denial of funds to process § 925(c)
applications stripped the federal district courts of jurisdiction
to review the Justice Department’s refusal to act on those

 199
      Lewis v. United States, 445 U.S. 55, 60–61 (1980)
(considering a challenge to 18 U.S.C. § 1202, the predecessor
to the current § 922).
 200
      United States v. Rehlander, 666 F.3d 45, 50
(1st Cir. 2012).
 201
       Torres-Rosario, 658 F.3d at 113.
 202
       285 F.3d 216 (3d Cir. 2002) (en banc).




                               69
applications. We also expressed skepticism that courts were
capable of making individualized determinations about
whether any particular felon should have his or her firearm
rights restored. We stated that “[d]istrict courts’ institutional
limitations suggest that Congress could not have intended for
the appropriations ban to transfer to them the primary
responsibility for determining whether to restore felons’
firearm privileges.” 203 Such a task required “interviewing a
wide array of people, including the felon, his family, his
friends, the persons whom he lists as character references,
members of the community where he lives, his current and
former employers, his coworkers, and his former parole
officers,” and, unlike a federal agency, “courts possess neither
the resources to conduct the requisite investigations nor the
expertise to predict accurately which felons may carry guns
without threatening the public’s safety.” 204

       The Supreme Court later unanimously vindicated
Pontarelli in United States v. Bean. 205 The Court there
explained that “[i]naction by ATF does not amount to a
‘denial’ within the meaning of § 925(c),” and “an actual
decision by ATF on an application is a prerequisite for
judicial review.” 206 It further noted that “[w]hether an
applicant is ‘likely to act in a manner dangerous to public
safety’ presupposes an inquiry into that applicant’s
background—a function best performed by the Executive,

 203
       Id. at 230–31.
 204
       Id. at 231.
 205
       537 U.S. 71 (2002).
 206
       Id. at 75–76.




                               70
which, unlike courts, is institutionally equipped for
conducting a neutral, wide-ranging investigation.” 207 The
Court summarized its view by stating that § 925(c) requires
an “inherently policy-based decision best left in the hands of
an agency.” 208

       Pontarelli and Bean recognized the many pitfalls
inherent in a regime of as-applied challenges. We should
embrace the wisdom of those opinions now. 209

       Indeed, the great advantage of § 922(g)(1) is that its
application turns on a prior adjudication. There is a real risk
that by instead peering into the seriousness of a plaintiff’s
prior conviction, we are inviting what are, in effect, collateral
attacks on long-closed proceedings. The Tenth Circuit
recognized as much in United States v. Reese. 210 That case
involved a challenge to 18 U.S.C. § 922(g)(8), which makes it
unlawful to possess firearms while subject to a domestic
protection order. The defendant argued that his prosecution
for violating § 922(g)(8) was improper due to alleged
infirmities in the underlying state court proceeding. The
Tenth Circuit rejected this argument, stating that “the

 207
       Id. at 77.
 208
       Id.
 209
      I recognize, of course, that Heller changed the
constitutional landscape. But again: Heller held that the
Second Amendment protects the “right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.” 554 U.S. at 635.
 210
       627 F.3d 792 (10th Cir. 2010).




                               71
overwhelming weight of federal case law precludes a
defendant in a § 922(g)(8) prosecution from mounting a
collateral attack on the merits of the underlying state
protective order.” 211 As-applied challenges to § 922(g)(1)
invite the same kinds of collateral attacks that Reese firmly
rejected. 212

       My colleagues’ approaches are also vulnerable on
another front. Their suggested criteria for assessing as-
applied challenges might be feasible if every challenger, like
the plaintiffs here, filed a declaratory judgment action. But at
this point it is important to reiterate that § 922(g)(1) is a
provision of criminal law. This raises its own set of
constitutional difficulties.


 211
    Id. at 804; see also id. at 805 (“[A]ny such challenges
could and should have been raised by Reese in the Hawaii
Family Court.”).
 212
      We ourselves recently reiterated that, as a general rule,
collateral attacks on past state convictions are disfavored in
our federal system. In United States v. Napolitan, --- F.3d ---,
2016 WL 3902164 (3d Cir. July 19, 2016), we concluded that
a defendant could not challenge the reasonableness of his
federal sentence on the ground that it was to run
consecutively to a state sentence that the defendant claimed
was unconstitutional. In our view, permitting such an attack
“would be a cumbersome imposition on federal sentencing
and a clear repudiation of the finality typically afforded to
state court judgments.” Id. at *4. Asking district courts to
litigate the seriousness of prior crimes giving rise to
disarmament under § 922(g)(1) raises similar concerns.




                              72
        First, our decision today places an extraordinary
administrative burden on district courts handling criminal
prosecutions under § 922(g)(1). Once as-applied challenges
start to work their way through our courts, there will be an
increasingly large body of “re-armament orders” that restore
individuals’ firearm rights. As a consequence, there will be
more and more people who believe that they can rely on a
particular judicial decision to claim that they, too, are entitled
to possess a firearm. District court judges will find
themselves in an ever-thickening morass of as-applied
precedent, trying to make fine-grained distinctions about
whether individual felon-in-possession prosecutions can
proceed. Given that my colleagues leave the door open to as-
applied challenges even with respect to persons who have
committed felonies, we can expect these challenges to begin
working their way through our Circuit almost immediately. 213

       Still worse, my colleagues’ approaches appear to be on
a collision course with the Due Process Clause of the Fifth
Amendment, which prohibits the government from “taking
away someone’s life, liberty, or property under a criminal law
so vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement.” 214 It seems to me that, under a regime of as-
 213
     See, e.g., Woolsey, 759 F.3d at 907 (noting defendant
moved to dismiss indictment on Second Amendment
grounds); Moore, 666 F.3d at 315 (same); Barton, 633 F.3d
at 169 (same); Vongxay, 594 F.3d at 1114 (same); see also
United States v. Hauck, 532 F. App’x 247, 249 (3d Cir. 2013)
(not precedential) (same).
 214
      Johnson v. United States, 135 S. Ct. 2551, 2556 (2015)
(citing Kolender v. Lawson, 461 U.S. 352, 357–358 (1983)).




                               73
applied challenges to § 922(g)(1), compliance with principles
of due process will quickly prove impossible.

        Keep in mind that both Judge Ambro and Judge
Hardiman are open to the possibility that a person convicted
of a crime might, over time, be able to present evidence of
rehabilitation sufficient to mount a successful as-applied
challenge to the felon-in-possession ban. 215 But if time-from-
conviction is really one of the relevant criteria, there is no
clear reason why a person subject to § 922(g)(1) could not
bring seriatim challenges in the hope that, at some point, his
or her conviction would be too far in the past to support the
statute’s application. Perhaps in future cases we could try to
jerry-rig some kind of doctrinal framework to address this
situation (e.g., multiple challenges in a single year are
disfavored; one challenge every five years is permissible), but
we would be doing so on the basis of nothing more than our
own judicial intuitions.

       Imagine, for example, that three people are prosecuted
for committing a non-violent felony. One was convicted
1 year ago, one 15 years ago, and one 30 years ago. All three
are caught by police officers at a shooting rage with guns-in-
 215
     See Hardiman Op. Transcript at 35 n.15 (“We have not
been presented with historical evidence one way or another
whether [the passage of time or evidence of rehabilitation]
might be a route to restoration of the right to keep and bear
arms in at least some cases, so we leave for another day the
determination whether that turns out to be the case.”); Ambro
Op. Typescript at 36–37 n.7 (“[U]nder the right
circumstances the passage of time since a conviction can be a
relevant consideration in assessing recidivism risks.”).




                              74
hand, thereby violating § 922(g)(1).         Are the ensuing
indictments constitutional, or are the convictions too far in the
past? Under the approach adopted by my colleagues, I
simply have no idea. Neither will future defendants, to whom
the Fifth Amendment guarantees some clarity as to whether
their conduct is, or is not, unlawful.

        In response to this evident quagmire, one might
propose a series of bright-line rules for determining when
application of § 922(g)(1) is constitutional. Unfortunately,
my colleagues do not offer such rules. Under their more
holistic standards, the constitutionality of the felon-in-
possession statute in any particular case may depend on the
judge’s views about the offense and offender. As a result,
defendants may not have fair notice of when and against
whom the statute will be—or constitutionally can be—
enforced.

       The federal judiciary’s recent experience with the
Armed Career Criminal Act makes it plain that our new
regime of as-applied challenges may be heading towards a
doctrinal dead-end. The Act increases the penalties on
violations of § 922(g) whenever a defendant has three or
more earlier convictions for a “serious drug offense” or a
“violent felony.” 216 The so-called “residual clause” of the
Act defined a “violent felony,” in part, as a crime that
“involves conduct that presents a serious potential risk of
physical injury to another.” 217 This clause bedeviled the
Supreme Court for nearly a decade as it considered numerous

 216
       18 U.S.C. § 924(e)(1).
 217
       Id. § 924(e)(2)(B)(ii).




                                 75
cases raising the question of whether a particular offense
presented a “serious potential risk of physical injury to
another.” Finally, in the recent case of Johnson v. United
States, 218 the Supreme Court declared that the residual clause
was void for vagueness. In the Court’s view, the clause
created “grave uncertainty about how to estimate the risk
posed by a crime” 219 and generated too much “uncertainty
about how much risk it takes for a crime to qualify as a
violent felony.” 220

        I take Johnson to stand for the proposition that the
category of “violent felony” is simply too indefinite to use as
a basis for determining who is and is not subject to criminal
liability under § 922(g)(1). Judge Hardiman, by contrast,
would permit plaintiffs to bring as-applied challenges on the
ground that their previous crimes were not sufficiently violent
to support disarmament. This raises the question of how
violent, exactly, a crime has to be for application of
§ 922(g)(1) to be constitutional. Citing Barton, Judge
Hardiman focuses on offenses “closely related to violent
crime,” 221 but goes on to state that “‘[c]rimes of violence’
were commonly understood [in the early part of the 20th
century] to include only those offenses ‘ordinarily committed



 218
       135 S. Ct. 2551 (2015).
 219
       Id. at 2257.
 220
       Id. at 2258.
 221
     Hardiman Op. Typescript at 13 (quoting Barton, 633
F.3d at 174).




                                 76
with the aid of firearms.’” 222 We and future litigants can only
guess whether this definition, unbounded as it is by reference
to the elements of an offense, extends to drug possession with
intent to distribute, human trafficking, extortion, or RICO
violations. We need not wonder, however, whether it
provides fair notice and comports with due process: the
Supreme Court made clear in Johnson it does not, and thus
Judge Hardiman’s approach would lead inexorably to courts
having to strike down § 922(g)(1) as void for vagueness. 223

       Unfortunately, Judge Ambro’s approach raises its own
set of problems. He would require district court judges to
consider a variety of factors in order to assess a crime’s
“seriousness,” including, among other things, (i) whether a
crime is a misdemeanor or a felony, 224 (ii) the sentence
imposed, 225 and (iii) whether there is a “cross-jurisdictional
consensus regarding the seriousness” of the crime giving rise

 222
     Id. at 42 (material in second set of brackets added)
(quoting Barton, 633 F.3d at 173).
 223
     This is to say nothing of Judge Hardiman’s approach to
assessing whether Binderup and Suarez are “responsible
citizens.” In answering that question, Judge Hardiman
considers not only the plaintiffs’ recent avoidance of criminal
conduct, but also personal traits like the fact that they both
have “a job [and] a family.” Id. at 46. This approach seems
to require an analysis so particularized as to be practically
characterological, raising additional problems of fair warning
and due process.
 224
       Ambro Op. Typescript at 30–31.
 225
       Id. at 31–32.




                              77
to the federal firearm disability. 226 Judge Ambro leaves it to
future cases to explain more fully how to weigh and balance
these various factors. Unfortunately, once district court
judges start disagreeing about how to conduct this inquiry, it
will only be a matter of time before void-for-vagueness
challenges to § 922(g)(1) start to percolate throughout our
courts. 227

       I see nothing in the Second Amendment that compels
us to abandon the current system of administrable firearms
regulation for such an uncertain future.

V.       Conclusion

        It is easy to empathize with the plaintiffs in these
cases. Having committed misdemeanors far in the past, they
fail to see how they can fairly be denied a right guaranteed to
them by the Constitution. Heller says that the “core” Second
Amendment right is the “right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” 228 The
 226
       Id. at 32.
 227
     Not to put too fine a point on it, but I disagree with Judge
Ambro’s conclusions as to seriousness in this very case.
While it may not have involved the threat of violence,
Binderup’s relationship with a teenager in his employ
involved power dynamics that were, at the very least,
troubling. And Suarez’s offense—carrying an unlicensed
firearm—indicates a cavalier attitude towards gun safety
regulations. Neither offense strikes me as frivolous or “non-
serious.”
 228
       Heller, 554 U.S. at 635.




                                  78
plaintiffs say that they are now “law-abiding, responsible
citizens”—so why should they be unable to protect
themselves and their families with a gun?

        As understandable as that intuition may be, our
emerging law of the Second Amendment does not permit this
kind of as-applied challenge. First, Heller establishes a clear
rule: statutes like § 922(g)(1) are “longstanding prohibitions”
that are “presumptively lawful.” 229 Interpreting that directive,
our Court has said that Congress may permissibly disqualify
certain people from asserting their Second Amendment rights
on a categorical basis. 230 As a matter of tradition and history,
persons who commit felonies and misdemeanors punishable
by more than two years in prison (which are felonies in all but
name) fall into that category. Second, even if we were to
consider the plaintiffs’ challenges under the rubric of
intermediate scrutiny, Congress has reasonably concluded
that persons who commit crimes are also likelier to commit
gun violence. Because § 922(g)(1) is appropriately tailored to
address that problem, the plaintiffs’ challenges must fail.

        The plaintiffs’ suggestion that we should get into the
business of issuing individualized exceptions to the felon-in-
possession ban is, in the final analysis, administratively
unworkable and constitutionally suspect. By affirming the
plaintiffs’ challenges today, I fear my colleagues are sending
our nascent law of the Second Amendment into a doctrinal
Labyrinth from which it may not soon return.


 229
       Id. at 626–27 & n.26.
 230
       Marzzarella, 614 F.3d at 92.




                                79
I therefore respectfully dissent.




                        80
