PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                    No. 21-1832
                   _____________

 MADISON M. LARA; SOPHIA KNEPLEY; LOGAN D.
MILLER; SECOND AMENDMENT FOUNDATION, INC.;
         FIREARMS POLICY COALITION,
                    Appellants

                          v.

  COMMISSIONER PENNSYLVANIA STATE POLICE
                __________

    On Appeal from the United States District Court
         For the Western District of Pennsylvania
                (D.C. No. 2-20-cv-01582)
   District Judge: Honorable William S. Stickman, IV
                   _______________

                       Argued
                    June 28, 2023

Before: JORDAN, RESTREPO and SMITH, Circuit Judges

               (Filed January 18, 2024)
                  _______________
John D. Ohlendorf [ARGUED]
Peter Patterson
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue NW
Washington, DC 20036

Joshua Prince
Prince Law Offices
646 Lenape Road
Bechtelsville, PA 19505
      Counsel for Appellants

Daniel B. Mullen [ARGUED]
Office of Attorney General of Pennsylvania
Appellate Litigation Section
1251 Waterfront Place
Pittsburgh, PA 15222
      Counsel for Commissioner Pennsylvania State Police

Janet Carter
Everytown Law
450 Lexington Avenue
P.O. Box 4148
New York, NY 10017

Lisa Ebersole
Cohen Milstein Sellers & Toll
1100 New York Avenue NW
West Tower, Suite 500
Washington, DC 20005
      Counsel for Amicus Appellee
      Everytown for Gun Safety Support Fund




                               2
Alex Hemmer
Office of Attorney General of Illinois
100 W. Randolph Street – 12th Floor
Chicago, IL 60601
      Counsel for Amicus Appellee, State of Illinois

James P. Davy
P.O. Box 15216
Philadelphia, PA 19125
      Counsel for Amicus Appellees
      Giffords Law Center to Prevent Gun Violence
      And Ceasefire Pennsylvania Education Fund
                    _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Through the combined operation of three statutes, the
Commonwealth of Pennsylvania effectively bans 18-to-20-
year-olds from carrying firearms outside their homes during a
state of emergency. Madison Lara, Sophia Knepley, and
Logan Miller, who were in that age range when they filed this
suit, want to carry firearms outside their homes for lawful
purposes, including self-defense. They, along with two gun
rights organizations, sued the Commissioner of the
Pennsylvania State Police (the “Commissioner”) to stop
enforcement of the statutes, but the District Court ruled against
them. They now appeal the District Court’s order dismissing
their case and denying them preliminary injunctive relief.
They assert that the Commonwealth’s statutory scheme




                               3
violates the Second Amendment of the United States
Constitution.

       In response, the Commissioner contends that the
Appellants1 are not among “the people” to whom the Second
Amendment applies, and that the Nation’s history and tradition
of firearm regulation support the statutory status quo. We
disagree. The words “the people” in the Second Amendment
presumptively encompass all adult Americans, including 18-
to-20-year-olds, and we are aware of no founding-era law that
supports disarming people in that age group. Accordingly, we
will reverse and remand.

I.     BACKGROUND2

       A.     Pennsylvania’s firearm statutes

      Under §§ 6106(a) and 6109(b) of the Pennsylvania
Uniform Firearms Act of 1995 (“UFA”), 18 Pa. Cons. Stat.

       1
          Lara, Knepley, and Miller are U.S. citizens and
residents of Pennsylvania. Were it not for the challenged
statutory provisions, they would have carried firearms outside
of their homes. The two organizational Appellants are the
Second Amendment Foundation and the Firearms Policy
Coalition, both of which have at least one active 18-to-20-year-
old member who is a U.S. citizen and Pennsylvania resident
and who wishes to carry firearms in public for lawful purposes.
For simplicity, we will speak of the “Appellants” in terms of
the three named individuals, unless otherwise specified.
       2
        The operative facts are not in dispute. We are bound,
at this stage of the proceedings, to “accept all factual




                               4
§§ 6101-6128, an individual may not carry a concealed firearm
without a license and must be at least 21 years old to apply for
a license. A concealed-carry license permits the holder to carry
a firearm even during a state of emergency. Id. § 6107(a)(2).
Ordinarily, Pennsylvanians without a concealed-carry license
may carry openly, but § 6107(a) of the UFA provides that “[n]o
person shall carry a firearm upon public streets or upon any
public property during an emergency proclaimed by a State or
municipal governmental executive[.]” Id. § 6107(a). Besides
the exception for those with a concealed-carry license, there
are exceptions for those “actively engaged in a defense” and
those who qualify for one of fifteen other exceptions
enumerated in § 6106(b).3 Id. § 6107(a)(1)-(2).

       Taken together, §§ 6106, 6107, and 6109 – when
combined with a state or municipal emergency declaration –
have the practical effect of preventing most 18-to-20-year-old
adult Pennsylvanians from carrying firearms. When this suit
was filed in October 2020, “Pennsylvania had been in an


allegations as true, [and] construe the complaint in the light
most favorable to the [Appellants].” Phillips v. Cnty. of
Allegheny, 

 (3d Cir. 2008).
       3
         For example, the exceptions permit individuals to
carry concealed firearms if they are in law enforcement, the
National Guard, or the military, and to transport firearms to and
from places of purchase and shooting ranges if the firearms are
not loaded. 

(b). They do not,
however, provide the typical, law-abiding Pennsylvanian with
the option of carrying a loaded and operable firearm for most
lawful purposes, including self-defense.




                               5
uninterrupted state of emergency for nearly three years” due to
gubernatorial proclamations related to the COVID-19
pandemic, the opioid addiction crisis, and Hurricane Ida.
(Comm’r Letter Br. at 4-5.) Perhaps out of weariness with the
ongoing emergency declarations, Pennsylvania recently
amended its constitution to limit the governor’s authority to
issue such emergency declarations to twenty-one days, unless
the General Assembly votes to extend it. Pa. Const. art. IV,
§ 20. Subsequently, all state-wide emergency declarations
lapsed.

      B.     Proceedings below

       The Appellants sued the Commissioner, Robert
Evanchick, in his official capacity, challenging as
unconstitutional under the Second Amendment the combined
effect of §§ 6106, 6107, and 6109, which, together with the
then-ongoing state of emergency, foreclosed them from
carrying firearms in public places.4

       They moved for a preliminary injunction in December
2020, and the Commissioner responded by moving to dismiss
under Federal Rule of Civil Procedure 12(b)(6). The District
Court denied the motion for a preliminary injunction and

      4
         Besides facially challenging the UFA, the complaint
also raised as-applied challenges in the alternative. The
Appellants, however, have not articulated any as-applied
challenge in their briefs and have therefore forfeited those
claims. Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster
Wheeler Corp., 

 (3d Cir. 1994) (“An issue is
[forfeited] unless a party raises it in its opening brief[.]”).




                              6
granted the Commissioner’s motion to dismiss the case. Citing
this Court’s past decisions “giv[ing] broad construction to …
‘longstanding’ and ‘presumptively valid regulatory measures’
in the context of licensing requirements,” and the “broad
consensus” of decisions from other federal courts “that
restrictions on firearm ownership, possession and use for
people younger than 21 fall within the types of ‘longstanding’
and ‘presumptively lawful’ regulations envisioned by [District
of Columbia v. Heller, 

 (2008)],” the District
Court concluded that Pennsylvania’s restrictions “fall outside
the scope of the Second Amendment.” (J.A. at 5, 20.)

      The Appellants timely appealed.




                              7
II.    DISCUSSION5

       A.     The Supreme Court’s new, two-part test

        The Second Amendment, controversial in interpretation
of late,6 is simple in its text: “A well regulated Militia, being
       5
         “When considering a Rule 12(b)(6) motion, we ‘accept
all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.’” Blanyar v. Genova Prods. Inc., 

 (3d Cir. 2017). When reviewing a district
court’s refusal to grant a preliminary injunction, we review the
court’s findings of fact for clear error, its conclusions of law de
novo, and its ultimate decision to deny the injunction for abuse
of discretion. Am. Express Travel Related Servs., Inc. v.
Sidamon–Eristoff, 

 (3d Cir. 2012). Whether
the Second Amendment conflicts with the statutory scheme at
issue here is a question of law that we review de novo.
Hernandez-Morales v. Att’y Gen., 

, 249 (3d Cir.
2020).

       6
            Compare, e.g., Joseph Blocher & Eric Ruben,
Originalism-by-Analogy         and     Second      Amendment
Adjudication, 133 YALE L.J. 99, 105 (2023) (“Although there
is still time for courts to develop workable standards (as they
did after []Heller), post-Bruen cases reveal an erratic,
unprincipled jurisprudence, leading courts to strike down gun
laws on the basis of thin historical discussion and no
meaningful explanation of historical analogy.”), with Nelson
Lund, Bruen’s Preliminary Preservation of the Second
Amendment, 23 FEDERALIST SOC’Y REV. 279, 289 (2022)




                                8
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 that, regardless of
militia service, the Second and Fourteenth Amendments
guarantee to an individual the right to possess a handgun in his
home for self-defense. 

. In that opinion,
which addressed a District of Columbia law that banned
handguns and required other “firearms in the home be rendered
and kept inoperable at all times,” the Court observed that the
challenged law would be unconstitutional “[u]nder any of the
standards of scrutiny … applied to enumerated constitutional
rights.” 

. We and other courts had interpreted that
observation as endorsing a means-end scrutiny analysis in
Second Amendment cases.7


(“[T]he Bruen majority [saw] that the circuit courts were
generally treating the Second Amendment with dismissive
hostility, as if it were a second-class provision of the Bill of
Rights.”).

       7
         See, e.g., Holloway v. Att’y Gen., 

, 172
(3d Cir. 2020) (“If a challenger makes a ‘strong’ showing that
the regulation burdens his Second Amendment rights … then
‘the burden shifts to the Government to demonstrate that the
regulation satisfies’ intermediate scrutiny.”); Libertarian Party
of Erie Cnty. v. Cuomo, 

, 128 (2d Cir. 2020)
(“Laws that ‘place substantial burdens on core rights are
examined using strict scrutiny’; but laws that ‘place either
insubstantial burdens on conduct at the core of the Second
Amendment or substantial burdens [only] on conduct outside




                                9
       Then, last year, in New York State Rifle & Pistol Ass’n
Inc. v. Bruen, the Supreme Court held that “the Second and
Fourteenth Amendments protect an individual’s right to carry
a handgun … outside the home.” 

, 2122 (2022).
The Court rejected “means-end scrutiny in the Second
Amendment context” and announced a new two-step analytical
approach. 

. At the first step, a court
determines whether “the Second Amendment’s plain text
covers an individual’s conduct.” 

. That “‘textual
analysis’ focuse[s] on the ‘normal and ordinary’ meaning of
the Second Amendment’s language.” 

 at 2127 (quoting
Heller, 

). If the text applies to the conduct
at issue, “the Constitution presumptively protects that
conduct.” Id. at 2130.



the core … can be examined using intermediate scrutiny.’”)
(alteration in original); United States v. McGinnis, 

, 754 (5th Cir. 2020) (“[A] ‘regulation that threatens a right
at the core of the Second Amendment’– i.e., the right to possess
a firearm for self-defense in the home – ‘triggers strict
scrutiny,’ while ‘a regulation that does not encroach on the core
of the Second Amendment’ is evaluated under intermediate
scrutiny.”); Worman v. Healey, 

 (1st Cir. 2019)
(“The appropriate level of scrutiny ‘turn[s] on how closely a
particular law or policy approaches the core of the Second
Amendment right and how heavily it burdens that right.’”);
Ezell v. City of Chicago, 

 (7th Cir. 2011)
(“[A] severe burden on the core Second Amendment right of
armed self-defense will require an extremely strong public-
interest justification and a close fit between the government’s
means and its end.”).




                               10
       At the second step, a court determines whether the
regulation in question “is consistent with the Nation’s
historical tradition of firearm regulation.” 

 If it is, the
presumption made at the first step of Bruen is overcome, and
the regulation in question can stand.

       To aid the court in that second-step analysis, the
government bears the burden of identifying a “founding-era”
historical analogue to the modern firearm regulation. Id. at
2130-33.      We are to look to the founding because
“[c]onstitutional rights are enshrined with the scope they were
understood to have when the people adopted them.” Id. at
2130, 2136 (quoting Heller, 

). The question
is “whether historical precedent from before, during, and even
after the founding evinces a comparable tradition of
regulation.” 

 at 2131-32 (quoting Heller, 

(internal quotation marks omitted)). In considering that
precedent, however, we discount “[h]istorical evidence that
long predates” 1791 and “guard against giving postenactment
history more weight than it can rightly bear.” Id. at 2136-37.

        Assessing the similarity of current regulations to those
of the founding era calls on us to consider both “how and why
the regulations [being compared] burden a law-abiding
citizen’s right to armed self-defense.” Id. at 2133; see also id.
(“[W]hether modern and historical regulations impose a
comparable burden on the right of armed self-defense and
whether that burden is comparably justified are central
considerations when engaging in an analogical inquiry.”)
(internal quotation marks omitted). We must be wary of a
modern law that only “remotely resembles a historical
analogue,” because to uphold such a law risks “endorsing
outliers that our ancestors would never have accepted.” Id.




                               11
(quoting Drummond v. Robinson Twp., 

, 226 (3d
Cir. 2021)). “On the other hand, analogical reasoning requires
only that the government identify a well-established and
representative historical analogue, not a historical twin. So
even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass
constitutional muster.” 

        In sum, at a high level, Bruen requires two distinct
analytical steps to determine the constitutionality of a firearm
regulation. The court first decides whether “the Second
Amendment’s plain text covers an individual’s conduct.” 

. If it does, “the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition
of firearm regulation.” 

       B.     The Second Amendment’s reference to “the
              people” covers all adult Americans.

      In defense of the Pennsylvania statutes, the
Commissioner first argues that 18-to-20-year-olds are not
among “the people” protected by the Second Amendment, and
the Appellants’ challenge therefore fails the first step of the
Bruen test. This is an issue of first impression for us.

       To succeed on this argument, the Commissioner must
overcome the strong presumption that the Second Amendment
applies to “all Americans.” Heller, 

. In Heller,
the Supreme Court reiterated that “the people … refers to a
class of persons who are part of a national community or who
have otherwise developed sufficient connection with this
country to be considered part of that community.” 

 at 580
(quoting United States v. Verdugo–Urquidez, 

,




                              12
265 (1990)). The Court also explained that, like other
references to “the people” in the Constitution, “the term
unambiguously refers to all members of the political
community, not an unspecified subset.” 

 Accordingly, there
is “a strong presumption that the Second Amendment right …
belongs to all Americans.”8 Id. at 581.

        Bruen once again affirmed the broad scope of the
Second Amendment, stating that the “Amendment guaranteed
to ‘all Americans’ the right to bear commonly used arms in
public subject to reasonable, well-defined restrictions.” 142 S.
Ct. at 2156 (quoting Heller, 

).9 Taking our cue
from the Supreme Court, we have construed the term “the
people” to cast a wide net. In Range v. Attorney General, we
considered an as-applied challenge to the constitutionality of a
federal statute that barred the defendant from purchasing
firearms because of a state-level conviction for having made a
false statement to obtain food stamps. 

, 98 (3d Cir.
2023) (en banc). We held that the Supreme Court’s past
references to “law-abiding citizens” did not mean that a
criminal conviction removes an American citizen from “the
people.” 

. We reasoned that “[u]nless the
meaning of the phrase ‘the people’ [in the Constitution] varies
from provision to provision – and the Supreme Court in Heller


       8
        Heller identified Second Amendment rightsholders at
various points as “Americans,” “all Americans,” “citizens,”
and “law-abiding citizens.” 

.
       9
        Bruen also stated that the protections of the Second
Amendment extend to “ordinary, law-abiding, adult citizens.”
142 S. Ct. at 2134.




                              13
suggested it does not – to conclude that [the defendant] is not
among ‘the people’ for Second Amendment purposes would
exclude him from those rights as well.” Id. at 102.

        The Commissioner endeavors to argue around that
conclusion by saying that, “[a]t the time of the Founding – and,
indeed, for most of the Nation’s history – those who were under
the age of 21 were considered ‘infants’ or ‘minors’ in the eyes
of the law[,]” “mean[ing] that they had few independent legal
rights.” (Comm’r Letter Br. at 8-9.) True enough, from before
the founding and through Reconstruction, those under the age
of 21 were considered minors. See, e.g., 1 William Blackstone,
Commentaries on the Laws of England 451 (Oxford,
Clarendon Press 1765) (“So that full age in male or female, is
twenty one years … who till that time is an infant, and so styled
in law.”); 1 Zephaniah Swift, A System of the Laws of the State
Of Connecticut 213 (Windham, John Byrne pub. 1795)
(“Persons within the age of 21, are, in the language of the law
denominated infants, but in common speech – minors.”);
Infant, Black’s Law Dictionary (11th ed. 2019) (“An infant in
the eyes of the law is a person under the age of twenty-one
years”) (quoting John Indermaur, Principles of the Common
Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878)).

       Notwithstanding the legal status of 18-to-21-year-olds
during that period, however, the Commissioner’s position is
untenable for three reasons. First, it supposes that the first step
of a Bruen analysis requires excluding individuals from “the
people” if they were so excluded at the founding. That
argument conflates Bruen’s two distinct analytical steps.
Although the government is tasked with identifying a historical
analogue at the second step of the Bruen analysis, we are not
limited to looking through that same retrospective lens at the




                                14
first step. If, at step one, we were rigidly limited by eighteenth
century conceptual boundaries, “the people” would consist of
white, landed men, and that is obviously not the state of the
law.10 Cf., Bruen, 142 S. Ct. at 2132 (noting that the Second
Amendment’s “reference to ‘arms’ does not apply ‘only [to]
those arms in existence in the 18th century’”); Range, 69 F.4th
at 104-05 (observing that founding-era gun restrictions based
on “race and religion” such as those on “Loyalists, Native
Americans, Quakers, Catholics, and Blacks” would now be
“unconstitutional under the First and Fourteenth
Amendments”).

       Second, it does not follow that, just because individuals
under the age of 21 lacked certain legal rights at the founding,
they were ex ante excluded from the scope of “the people.” As
then-Judge Barrett explained, “[n]either felons nor the
mentally ill are categorically excluded from our national
community.” Kanter v. Barr, 

 (7th Cir.
2019) (Barrett, J., dissenting). But “[t]hat does not mean that
the government cannot prevent them from possessing guns.
Instead, it means that the question is whether the government
has the power to disable the exercise of a right that they
otherwise possess.” 

 (emphasis added).

       Third, consistency has a claim on us. It is undisputed
that 18-to-20-year-olds are among “the people” for other
constitutional rights such as the right to vote (U.S. Const. art.
I, § 2; id. amend. XVII), freedom of speech, peaceable

       10
           See Note, The Meaning(s) of ‘The People’ in the
Constitution, 

, 1085 (2013) (“‘[T]he
people’ largely meant property-owning white adult males, at
least initially.”).




                               15
assembly, government petitions (id. amend. I), and the right
against unreasonable government searches and seizures (id.
amend. IV).11 As we recently observed in Range, there is “no
reason to adopt an inconsistent reading of ‘the people.’” 69
F.4th at 102. Indeed, wholesale exclusion of 18-to-20-year-
olds from the scope of the Second Amendment would
impermissibly render “the constitutional right to bear arms in
public for self-defense … ‘a second-class right, subject to an
entirely different body of rules than the other Bill of Rights
guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald v.
Chicago, 

 (2010)).

        We therefore hold that 18-to-20-year-olds are, like
other subsets of the American public, presumptively among
“the people” to whom Second Amendment rights extend.12 If

       11
          The three other provisions in the Constitution that
explicitly refer to “the people” are the preamble (“We the
People”), the Ninth Amendment (providing that no enumerated
constitutional right “shall … be construed to deny or disparage
others retained by the people”), and the Tenth Amendment
(providing “[t]he powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”).
       12
          Two other federal appellate courts have determined
that 18-to-20-year-olds are among “the people” protected by
the Second Amendment. Hirschfeld v. ATF, 

, 418-
34 (4th Cir. 2021), vacated as moot, 

 (4th Cir.
2021); Jones v. Bonta, 

, 717-21 (9th Cir. 2022),
opinion vacated on reh’g, 

 (9th Cir. 2022).
Hirschfeld and Bonta were decided before Bruen. Hirschfeld
was vacated as moot because the plaintiff turned 21 while the




                               16
case was on appeal, 14 F.4th at 326-27, and Bonta was vacated
and remanded to the district court for consideration in light of
Bruen, 47 F.4th at 1125. Their analyses are nevertheless
instructive.
       In Hirschfeld, the Fourth Circuit, after reviewing the use
of “the people” in the rights enumerated in the First and Fourth
Amendments, expressed its view that “it is hard to conclude
that 18-to-20-year-olds have no Second Amendment rights
where almost every other constitutional right affords them that
protection.” 5 F.4th at 424. In a variant on a familiar canon of
construction, the Fourth Circuit also explained that when the
drafters of the Constitution and its amendments wanted to set
an age restriction, they did so explicitly:
       [W]hile various parts of the Constitution include
       age requirements, the Second Amendment does
       not. The Founders set age requirements for
       Congress and the Presidency, but they did not
       limit any rights protected by the Bill of Rights to
       those of a certain age. See U.S. Const. art. I, § 2
       (age 25 for the House); id. art. I, § 3 (age 30 for
       the Senate); id. art. II, § 1 (age 35 for the
       President); cf. id. amend. XXVI (setting voting
       age at 18). In other words, the Founders
       considered age and knew how to set age
       requirements but placed no such restrictions on
       rights, including those protected by the Second
       Amendment.
Id. at 421.
        The Ninth Circuit in Bonta reached the same conclusion
about age limits, but on a different basis. It determined that the
Second Amendment “protects the right of the people to keep
and bear arms and refers to the militia. Young adults were part




                               17
there is any argument to be made that the Commonwealth can
restrict the rights of 18-to-20-year-olds with respect to
firearms, Bruen teaches that the Commissioner must make that
argument by showing that such restrictions are part of the
nation’s historical tradition of gun regulation. 142 S. Ct. at
2130.

       C.     The relevant historical timeframe

        The Commissioner does seek to shoulder that burden,
but, before considering whether he has succeeded in his task,
we must establish which period – the Second Amendment’s
ratification in 1791 or the Fourteenth Amendment’s ratification
in 1868 – is the proper historical reference point for evaluating
the contours of the Second Amendment as incorporated against
the Commonwealth. The Appellants direct us to 1791, but the
Commissioner insists that 1868 is the correct temporal
reference point.

        Bruen declined to resolve this timeframe question
because, in that case, the public understanding of the Second
Amendment right at issue was the same in 1791 and 1868 “for
all relevant purposes.” 142 S. Ct. at 2138. We are situated


of the militia and were expected to have their own arms. Thus,
young adults have Second Amendment protections as ‘persons
who are a part of a national community.’” Bonta, 34 F.4th at
724 (citing Heller, 544 U.S. at 580).
       We acknowledge that our dissenting colleague sees
things differently. He shares the Commissioner’s view that 18-
to-21-year-olds are not under the protection of the Second
Amendment. Our understanding, however, for the reasons
already described is to the contrary.




                               18
differently, however, because, while the Commissioner has not
pointed to an eighteenth century regulation barring 18-to-20-
year-olds from carrying firearms, he says that there are “dozens
of 19th century laws restricting 18-to-20-year-olds’ ability to
purchase, possess and carry firearms[.]” (Comm’r Letter Br.
Reply at 7.)

       A premise we begin with is that the “individual rights
enumerated in the Bill of Rights and made applicable against
the States through the Fourteenth Amendment have the same
scope as against the Federal Government.” Bruen, 142 S. Ct.
at 2137; see also Ramos v. Louisiana, 

(2020) (“There can be no question either that the Sixth
Amendment’s unanimity requirement applies to state and
federal criminal trials equally.”); Timbs v. Indiana, 

 (2019) (“Incorporated Bill of Rights guarantees are
‘enforced against the States under the Fourteenth Amendment
according to the same standards that protect those personal
rights against federal encroachment.’”) (quoting McDonald,

); Malloy v. Hogan, 

 (1964) (“We
have held that the guarantees of the First Amendment, the
prohibition of unreasonable searches and seizures of the Fourth
Amendment, and the right to counsel guaranteed by the Sixth
Amendment, are all to be enforced against the States under the
Fourteenth Amendment according to the same standards that
protect those personal rights against federal encroachment.”)
(internal citations omitted).

        Accordingly, the Commissioner must establish that the
Second Amendment – whether applied against a state or
federal regulation – is best construed according to its public
meaning at the time of the Fourteenth Amendment’s
ratification as opposed to the public meaning of the right when




                              19
the Second Amendment was ratified. Although Bruen did not
definitively decide this issue, it gave a strong hint when it
observed that there has been a general assumption “that the
scope of the protection applicable to the Federal Government
and States [under the Bill of Rights] is pegged to the public
understanding of the right when the Bill of Rights was adopted
in 1791.” Bruen, 142 S. Ct. at 2137. In support, it cited
Crawford v. Washington, 

 (2004); Virginia
v. Moore, 

 (2008); and Nevada
Commission on Ethics v. Carrigan, 

(2011).

        In those cases, the Court interpreted the bounds of the
Sixth, Fourth, and First Amendments, respectively, according
to their public meaning at the founding. In Crawford, which
considered the scope of the Confrontation Clause, the Court
observed that “[t]he right to confront one’s accusers is a
concept that dates back to Roman times,” but the emphasis in
the opinion was on “English common law” because it was
“[t]he founding generation’s immediate source of the
concept[.]” 

. Then in Moore, the Court
explained that, “[i]n determining whether a search or seizure is
unreasonable, we begin with history.” 

. That
history includes “the statutes and common law of the founding
era” and the understanding “of those who ratified the Fourth
Amendment.” 

 Finally, in Nevada Commission on Ethics,
the Court held that a Nevada statute requiring public officials
to recuse themselves from voting on certain matters did not
violate the First Amendment, and founding-era evidence was
“dispositive” in the analysis.13 

; see also 

 at

       13
         See also Printz v. United States, 

(1997) (“[E]arly congressional enactments ‘provid[e]




                               20
121 (“Laws punishing libel and obscenity are not thought to
violate ‘the freedom of speech’ to which the First Amendment
refers because such laws existed in 1791 and have been in place
ever since.”).

       While the Supreme Court has not held that all
constitutional rights that have been made applicable to the
states must be construed according to their public meaning in
1791, the Commissioner has not articulated a theory for
defining some rights according to their public meaning in 1791
and others according to their public meaning in 1868.
Moreover, Bruen has already instructed that historical
evidence from 1791 is relevant to understanding the scope of
the Second Amendment as incorporated against the states.
Bruen, 142 S. Ct. at 2139, 2145. Accordingly, to maintain
consistency in our interpretation of constitutional provisions,
we hold that the Second Amendment should be understood
according to its public meaning in 1791.14


contemporaneous and weighty evidence of the Constitution’s
meaning.’”) (quoting Bowsher v. Synar, 

(1986)).
       14
           We thus part ways with the Eleventh Circuit, which
held in National Rifle Ass’n v. Bondi, 

 (11th Cir.),
reh’g en banc granted, opinion vacated, 

 (11th
Cir. 2023), that the Second Amendment’s “contours turn on the
understanding that prevailed at the time of the later ratification
– that is, when the Fourteenth Amendment was ratified.” 

. According to Bondi, “[t]his is necessarily so if we are
to be faithful to the principle that ‘constitutional rights are
enshrined with the scope that they were understood to have
when the people adopted them.’” 

 at 1323 (quoting Bruen,




                               21
       We thus set aside the Commissioner’s catalogue of
statutes from the mid-to-late nineteenth century, as each was
enacted at least 50 years after the ratification of the Second
Amendment.15 What is left is an eighteenth-century statute that


142 S. Ct. at 2136) (cleaned up). Bondi overlooks that two
generations of Americans ratified the Second and Fourteenth
Amendments. If we are to construe the rights embodied in
those amendments coextensively, as the Supreme Court has
instructed we must, and if there is daylight between how each
generation understood a particular right, we must pick between
the two timeframes, and, as explained herein, we believe the
better choice is the founding era.
       15
          1856 Ala. Acts 17 (banning gun sales to minors under
21); 

 (1881) (banning concealed-carry, and
banning the sale of deadly weapons to minors under 21); Wash.
D.C. 

 (1892) (criminalizing concealed-carry for all
persons, and banning the sale of guns and dangerous weapons
to minors under 21); 

 (banning gun sales to
minors under 21); 

 (banning the sale of guns
and other dangerous weapons to minors under 21); 

 (banning the sale of pistols, cartridges, and other
concealable deadly weapons to anyone under 21); 

 (banning the sale of pistols to minors under 21); 

; (banning the purchase and possession of
guns and other dangerous weapons by minors under 21); 1873
Ky. Stat. art. 29, at 359 (criminalizing concealed-carry for all
persons, and banning the sale of all deadly weapons to minors
under 21); 

 (banning the sale of concealable
deadly weapons to anyone under 21); 

(banning the sale of firearms and deadly weapons other than
rifles and shotguns to minors under 21); 

                              22
supposedly supports the contention that Pennsylvania’s current
restriction on 18-to-20-year-olds is a “longstanding,
presumptively lawful regulation[.]” (Answering Br. at 27.)
Specifically, the Commissioner directs us to Pennsylvania’s
Act of August 26, 1721, which prohibited “carry[ing] any gun
or hunt[ing] on the improved or inclosed lands of any



(criminalizing concealed-carry for all persons, and prohibiting
the sale of firearms and deadly weapons to intoxicated persons
or to minors under 21); 

 (criminalizing
concealed-carry for all persons, and prohibiting the sale of such
weapons to minors under 21 without parental consent); 

 (prohibiting minors under 21 from carrying
concealed pistols and other dangerous weapons); 1893 N.C.
Sess. 468-69 (banning the sale of pistols and other dangerous
weapons to minors under 21); 

(prohibiting the sale of pistols and other dangerous weapons to
minors under 21); 

-22 (banning the
sale of pistols and other dangerous weapons to minors under
21); 1882 W.Va. Acts 421-22 (criminalizing carrying guns and
other dangerous weapons about one’s person and prohibiting
the sale of such weapons to minors under 21); 

 (making it unlawful for “any minor . . . to go armed
with any pistol or revolver” and for any person to sell firearms
to minors under 21); 

 (banning the
sale of pistols and other dangerous weapons to anyone under
21).
        Full texts of these laws are available at the Repository
of Historical Gun Laws, Duke Univ. School of Law,
https://firearmslaw.duke.edu/repository/search-the-repository/
(last visited Sept. 26, 2023).




                               23
plantation other than his own[.]”16 But we can discern no near
equivalence or significant analogue between the burdens

      16
           In full, the Act provided:
      Be it enacted by the authority aforesaid, That if
      any person or persons shall presume, at any time
      after the sixteenth day of November, in this
      present year one thousand seven hundred and
      twenty one, to carry any gun or hunt on the
      improved or inclosed lands of any plantation
      other than his own, unless he have license or
      permission from the owner of such lands or
      plantation, and shall thereof convicted ether
      upon view of any justice of the peace within this
      province, or by the oath or affirmation of any one
      or more witnesses, before any justice of the
      peace, he shall for every such offense forfeit the
      sum of ten shillings. And if any person
      whatsoever, who is not owner of fifty acres of
      land and otherwise qualified in the same manners
      as persons are or ought to be by the laws of this
      province for electing of members to serve in
      assembly, shall at any time, after the said
      Sixteenth day of November, carry any gun, or
      hunt in the woods or inclosed lands, without
      license or permission obtained from the owner or
      owners of such lands, and shall be thereof
      convicted in manner aforesaid, such offender
      shall forfeit and pay the sum of five shillings.
Act of Aug. 26, 1721, ch. 246, 3 Statutes at Large of Pa. 254,
255-56, repealed by Act of Apr. 9, 1760, ch. 456, 6 Statutes at
Large of Pa. 46. Text available at the Repository of Historical




                                24
imposed by that statute and those at issue here. For one thing,
the 1721 statute appears to be primarily focused on preventing
Pennsylvanians from hunting on their neighbors’ land, not on
restricting the right to publicly carry a gun. When the statute
was later repealed and replaced in 1760, that subsequent statute
included another provision that prevented “fir[ing] a gun on or
near any of the King’s highways,” which indicates that
carrying a firearm in public places was generally not
restricted.17 Act of Apr. 9, 1760, ch. 456, 6 Statutes at Large



Gun Laws, https://firearmslaw.duke.edu/laws/the-statutes-at-
large-of-pennsylvania-c-142-p-254-an-act-to-prevent-the-
killing-of-deer-out-of-season-and-against-carrying-of-guns-
or-hunting-by-persons-not-qualified/ (last visited Sept. 26,
2023).
       17
            In full, the relevant portion of the 1760 Act provided:
       Be it enacted, That if any person or persons shall
       presume, at any time after the publication of this
       act[,] to carry any gun or hunt on any enclosed or
       improved lands of any of the inhabitants of this
       province[,] other than his own[,] unless he shall
       have license or permission from the owner of
       such lands, or shall presume to fire a gun on or
       near any of the King’s highways and shall be
       thereof convicted, either upon view of any
       [J]ustice of the [P]eace within this province or by
       the oath or affirmation of any one or more
       witnesses before any [J]ustice of the [P]eace, he
       shall for every such offence forfeit the sum of
       forty shillings.




                                 25
of Pa. 46, 48. More to the point, however, to the extent the
statute did burden the right to carry a gun in public, it did so
without singling out 18-to-20-year-olds, or any other subset of
the Pennsylvania population for that matter.

        Against that conspicuously sparse record of state
regulations on 18-to-20-year-olds at the time of the Second
Amendment’s ratification, we can juxtapose the Second Militia
Act, passed by Congress on May 8, 1792, a mere five months
after the Second Amendment was ratified on December 15,
1791. The Act required all able-bodied men to enroll in the
militia and to arm themselves upon turning 18.18 Second


Act of Apr. 9, 1760, ch. 456, 6 Statutes at Large of Pa. 46, 48.
Text available at the Repository of Historical Gun Laws,
https://firearmslaw.duke.edu/laws/laws-of-the-
commonwealth-of-pennsylvania-from-the-fourteenth-day-of-
october-one-thousand-seven-hundred-to-the-twentieth-day-
of-march-one-thousand-eight-hundred-and-ten-page-229-
image-288-vol-1/ (last visited Sept. 26, 2023).
       18
          The Second Militia Act required that “every free able-
bodied white male citizen of the respective states, resident
therein, who is or shall be of the age of eighteen years and
under the age of forty-five years (except as herein exempted)
shall severally and respectively be enrolled in the militia[.]”
Second Militia Act of 1792 § 1, 

 (1792). The Second
Militia Act further required every member of the militia to
“provide himself with a good musket or firelock ... or with a
good rifle[.]” 

 § 1.
       The First Militia Act, which Congress passed shortly
before, on May 2, 1792, gave the president authority to call out
the militias of the several states, “whenever the United States




                              26
Militia Act of 1792 § 1, 

 (1792). That young adults
had to serve in the militia indicates that founding-era
lawmakers believed those youth could, and indeed should,
keep and bear arms.

        The Commissioner contests the relevancy of the Second
Militia Act on three grounds. First, he notes that, “to the extent
1791 militia laws have any relevance, the UFA contains an
exception for members of the Military and National Guard, and
is thus entirely consistent with them.”19 (Comm’r Letter Br.
Reply at 7 (citing 

(b)(2)).) Second,
he objects that, when the Second Amendment was ratified, nine
states set the threshold for militia service at 16 and seven states
set the maximum age at 50. According to the Commissioner,
the “logical extension of Appellants’ argument that militia
laws in 1791 determine the scope of the Second Amendment
would also require the invalidation of any contemporary law
restricting 16-year-olds from purchasing, possessing, and
carrying firearms, but would allow laws stripping 51-year-olds
of the right to keep and bear arms.” (Comm’r Letter Br. Reply
at 5.) And third, he asserts that the Second Militia Act of 1792


shall be invaded, or be in imminent danger of invasion from
any foreign nation or Indian tribe.” First Militia Act of 1792
§ 1, 

 (1792).
       19
         Although the founding generation was “devoted to the
idea of state control of the militia,” modern statutes
“nationalized the function and control of the militia” and
reorganized it “into the modern National Guard.” Saul Cornell,
A Well Regulated Militia: The Founding Fathers and the
Origins of Gun Control in America 37, 196 (2006).




                                27
– as well as similar state statutes that required 18-to-20-year-
olds to participate in the militia – “often assumed that
militiamen younger than 21 did not have the independent
ability to acquire firearms, and therefore required their parents
to provide them with arms.”20 (Comm’r Letter Br. Reply at 5.)

        No doubt, the Commissioner is correct that a duty to
possess guns in a militia or National Guard setting is
distinguishable from a right to bear arms unconnected to such
service. See Nat’l Rifle Assoc. v. Bondi, 

, 1331
(11th Cir. 2023) (cautioning against the conflation of the
obligation to perform militia service with the right to bear
arms). Still, the Second Militia Act is good circumstantial
evidence of the public understanding at the Second
Amendment’s ratification as to whether 18-to-20-year-olds
could be armed, especially considering that the Commissioner
cannot point us to a single founding-era statute imposing
restrictions on the freedom of 18-to-20-year-olds to carry
guns.21 The Commissioner’s contention that any reliance on

       20
           The Commissioner also notes that Pennsylvania’s
1755 Militia Act provided that “no Youth, under the Age of
Twenty-one Years, . . . shall be admitted to enroll himself . . .
without the Consent of his or their Parents or Guardians[.]”
The text of that statute is available at Militia Act, [25 November
1755],                        Nat’l                       Archives,
https://founders.archives.gov/documents/Franklin/01-06-02-
0116#BNFN-01-06-02-0116-fn- 0001 (last visited Sept. 20,
2023).
       21
         See Nat’l Rifle Ass’n, Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 

 (5th Cir.
2013) (Jones, J., dissenting from the denial of rehearing)




                                28
1789 militia laws would force us to invalidate laws prohibiting
16-to-17-year-old from possessing firearms is simply not
persuasive. Although the age of militia service dipped to 16 in
some states during the colonial and revolutionary periods – a
development that likely can be attributed to necessities created
by ongoing armed conflicts – the Appellants rightly observe
that, “[a]t the time of the Second Amendment’s passage, or
shortly thereafter, the minimum age for militia service in every
state became eighteen.” (Reply Br. at 17 (citing Nat’l Rifle
Ass’n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 

 (5th Cir. 2013) (Jones, J.,
dissenting)).) Finally, even though there were founding-era
militia laws that required parents or guardians to supply arms
to their minor sons, nothing in those statutes says that 18-to-
20-year-olds could not purchase or otherwise acquire their own
guns.

       We understand that a reasonable debate can be had over
allowing young adults to be armed, but the issue before us is a
narrow one. Our question is whether the Commissioner has
borne his burden of proving that evidence of founding-era
regulations supports Pennsylvania’s restriction on 18-to-20-
year-olds’ Second Amendment rights, and the answer to that is
no.




(“[T]hose minors were in the militia and, as such, they were
required to own their own weapons. What is inconceivable is
any argument that 18-to-20-year-olds were not considered, at
the time of the founding, to have full rights regarding
firearms.”) (emphasis removed).




                              29
       D.      This case is not moot

        The Commissioner next argues that none of the
foregoing matters because the Appellants no longer face any
restrictions on their ability to carry publicly, which eliminates
any injury for which they could obtain relief. In other words,
he says the case is moot. He points to the amendment to
Pennsylvania’s constitution that now limits the governor’s
authority to issue an emergency declaration to 21 days, unless
the General Assembly votes to extend it. See PA. Const. art.
IV, § 20(c). And he notes that the emergency proclamations in
place when this suit began have all lapsed. Accordingly, the
Commissioner says, there is no longer any restriction on the
Appellants’ ability to openly carry firearms. He also argues
that the claims of the individual Appellants are moot because
they have reached the age of 21 and are now eligible to apply
for a concealed-carry license.

       Generally, a case is moot when “the issues presented are
no longer live or the parties lack a legally cognizable interest
in the outcome.” United Steel Paper & Forestry Rubber Mfg.
Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v.
Virgin Islands, 

 (3d Cir. 2016). “[A]n appeal
is moot in the constitutional sense only if events have taken
place during the pendency of the appeal that make it impossible
for the court to grant any effectual relief whatsoever.” In re
World Imports Ltd., 

 (3d Cir. 2016).

       Here, the Appellants invoke the “capable of repetition
yet evading review” exception to the mootness rule, which
applies “only in exceptional circumstances” when “(1) the
challenged action is in its duration too short to be fully litigated
prior to cessation or expiration, and (2) there is a reasonable




                                30
expectation that the same complaining party will be subject to
the same action again.” Hamilton v. Bromley, 

 (3d Cir. 2017) (quoting Spencer v. Kemna, 

(1998)). A plaintiff need not show that future injury is certain,
only that there is “more than a theoretical possibility of the
action occurring against the complaining party again; it must
be a reasonable expectation or a demonstrated probability.”
Cnty. of Butler v. Governor of Pa., 

, 231 (3d Cir.
2021) (quoting Murphy v. Hunt, 

 (1982)).
The plaintiff has the burden of making that showing. New
Jersey Tpk. Auth. v. Jersey Cent. Power & Light, 

,
31-33 (3d Cir. 1985).

       This is one such exceptional circumstance because, as
the record shows, Pennsylvania has a recent history of
declaring multiple emergencies, and it is reasonably likely that
other 18-to-21-year-olds, including members of the
organizational Appellants here, the Second Amendment
Foundation and the Firearms Policy Coalition, will be banned
from carrying guns in public yet again.22 The Appellants

       22
          As the organizational Appellants acknowledge, their
standing “depends upon at least one of their members having
standing in their own right.” (3d Cir. D.I. 71-1 at 1 (citing Hunt
v. Washington State Apple Advert. Comm’n, 

(1977)).) Although the three named individual Appellants
have reached the age of 21, the Court has been made aware of
at least one individual, George Pershall, a 19-year-old resident
of Chester County, Pennsylvania and U.S. citizen, who is a
member of both the Second Amendment Foundation and the
Firearms Policy Coalition, and will remain subject to the
UFA’s restrictions.




                               31
persuasively argue that, while lengthy emergencies may now
be less likely because of the recent constitutional amendment,
the risk of regulated persons being unable to fully litigate this
Second Amendment issue has increased since the adoption of
the new constitutional amendment. Because emergencies may
only last for twenty-one days, absent intervention from the
General Assembly, there is not enough time to litigate a claim.

       E.      The Appellants’ claim is not barred by the
               Eleventh Amendment or Article III standing23

        The Commissioner’s next salvo is, in essence, “they’ve
got the wrong man.” He says that the target of the Appellants’
constitutional challenge is Pennsylvania’s licensing scheme,
not him, and that suing him is improper because he is powerless
to issue licenses.24 More specifically, he says that the Ex parte
Young exception to the Eleventh Amendment, the exception
that allows suits against an official who is a “representative of
the state,”25 

 (1908), is properly invoked only


       23
          We may consider Eleventh Amendment issues for the
first time on appeal, In re Hetchinger Inv. Co. of Del., Inc., 

, 251 (3d Cir. 2003), and may affirm the District
Court’s judgment on any ground supported by the record, TD
Bank N.A. v. Hill, 

, 276 n.9 (3d Cir. 2019).
       24
            Only county sheriffs may grant concealed-carry
licenses.
       25
          The Eleventh Amendment generally bars suits against
states in federal court without their consent. Will v. Michigan
Dep’t of State Police, 

 (1989). “[A] suit against
a state official in his or her official capacity is not a suit against




                                 32
if the named defendant has a sufficient connection to the
enforcement of the challenged law, as distinct from a
generalized duty to enforce, and if there is a real potential that
the official will in fact enforce the law. See 1st Westco Corp.
v. Sch. Dist. of Phila., 

, 114-15 (3d Cir. 1993)
(holding that “Commonwealth Officials’ general duty to
enforce the laws of the Commonwealth of Pennsylvania,”
standing alone, was “not … a proper predicate for liability”).
The Commissioner further argues that the Appellants lack
standing under Article III of the Constitution because they
cannot establish the requisite causation and redressability of
their claim.26


the official but rather is a suit against the official’s office. As
such, it is no different from suit against the State itself.”
McCauley v. Univ. of the Virgin Islands, 

 (3d
Cir. 2010) (citing Will, 

) (cleaned up). A plaintiff
can avoid that bar by naming a state official in a suit for
prospective declaratory or injunctive relief to prevent a
continuing violation of federal law. Cf. Ex parte Young, 

 (1908) (explaining that in bringing such an
action, the “officer must have some connection with the
enforcement of the act, or else it is merely making him a party
as a representative of the state, and thereby attempting to make
the state a party”).
       26
          To satisfy the Article III standing requirements of
causation and redressability, a plaintiff must establish that his
injury is causally connected to the government-defendant’s
challenged conduct, and that enjoining that conduct is likely to
redress the plaintiff’s injury. Lujan v. Defs. of Wildlife, 

 (1992). We agree with the Commissioner
that, “[w]hen a plaintiff sues state officials to enjoin the




                                33
       The Appellants have a ready and effective response.
They say they are “agnostic” as to whether they get licenses to
carry concealed weapons under §§ 6106 and 6109, or whether,
despite § 6107, they can carry openly without a license during
an emergency. (Reply Br. at 3-4.) In other words, the
existence of a license is not what they are fighting about; it is
the right to openly carry a gun regardless of a state of
emergency.        And they contend that enjoining the
Commissioner from arresting 18-to-20-year-olds who openly
carry firearms would in fact redress their constitutional
injuries.

        We agree that a bar on arrests would be a form of
      27
relief.   Accordingly, the Commissioner has an adequate


enforcement of a state statute, the dictates of Ex parte Young
overlap significantly with [the Article III requirements of]
causation and redressability.” (Answering Br. at 17-18.) If a
plaintiff can show that the defendant’s conduct causes an injury
and that enjoining the conduct would redress the injury, that
showing will satisfy the “sufficient connection” requirement
under Ex parte Young. See 1st Westco Corp. v. Sch. Dist. Of
Phila., 

, 114-15 (3d Cir. 1993) (requiring a “real, not
ephemeral, likelihood or realistic potential that the connection
will be employed against the plaintiff’s interests”).
       27
             The Commissioner appears to implicitly
acknowledge this as well. (See Answering Br. at 50 (asserting
that a bar on arrests “would lead to a perverse result, which
would give an unlicensed 18-year-old high school senior the
ability to carry concealed firearms in public at any time, but
would leave her unlicensed parents vulnerable to criminal
sanction for the same conduct. That result cannot be consistent




                               34
connection to the enforcement of the challenged law, and
neither the Eleventh Amendment nor Article III bars the
Appellants’ claim.

      F.     The Appellants have not waived their request
             for injunctive relief, and their request is
             sufficiently specific.28

        Finally, the Commissioner asserts that the Appellants
forfeited their request for injunctive relief and failed to
adequately describe that relief as required under Federal Rule
of Civil Procedure 65(d). That argument fails too.

        The Appellants repeatedly referenced their request for
injunctive relief throughout their opening brief, and they
discussed each of the elements of the preliminary injunction
test, citing caselaw in support. The issue of injunctive relief
therefore should not be a surprise to anyone in this case. The
Commissioner had a full opportunity to develop a response in
his answering brief. Cf. Wood v. Milyard, 

(2012) (holding that courts should exercise restraint in
reaching issues that parties “would not have anticipated in
developing their arguments on appeal”).


with the intent of the General Assembly when it enacted the
UFA”).)
      28
           Arguments not raised in an opening brief are
forfeited, In re Wettach, 

 (3d Cir. 2016), and
“arguments raised in passing (such as in a footnote), but not
squarely argued, are considered [forfeited],” Higgins v.
Bayada Home Health Care Inc., 

, 763 (3d Cir.
2023) (alteration in original).




                              35
        And contrary to the Commissioner’s argument that “it
is unclear” as to “how an injunction (preliminary or permanent)
against Commissioner Evanchick would function” (Answering
Br. at 48), we think it is abundantly clear. As an initial matter,
Rule 65(d) governs the “contents and scope of every injunction
and restraining order” issued by a court, not the way in which
a party requests injunctive relief. For that reason alone, the
Commissioner’s Rule 65(d) argument is meritless. More to the
point though, while Rule 65(d) requires that the enjoined party
“receive fair and precisely drawn notice of what the injunction
actually prohibits,” Hope v. Warden York Cnty. Prison, 

, 322 (3d Cir. 2020), and that the injunction be
“phrased in terms of objective actions, not legal conclusions,”

 the Appellants’ complaint did provide notice and
specificity when it said, “Plaintiffs respectfully request[] that
this Honorable Court ... [p]reliminarily, and thereafter
permanently, enjoin Defendant, his officers, agents, [and]
servants, employees, and all persons in active concert or
participation with him from enforcing against Plaintiffs and
those similarly situated, 18 PA. C.S. § 6107.” (J.A. at 70-71.)
There is nothing vague about that.

III.   CONCLUSION

        For the foregoing reasons, we will reverse the decision
of the District Court and remand with instructions to enter an
injunction forbidding the Commissioner from arresting law-
abiding 18-to-20-year-olds who openly carry firearms during a
state of emergency declared by the Commonwealth.




                               36
RESTREPO, Circuit Judge, dissenting.

        Because Pennsylvania’s statutory scheme does not
violate the Second Amendment of the Constitution, I
respectfully dissent. The challenged statutory scheme here is
“consistent with this Nation’s historical tradition,” as defined
in New York State Pistol & Rifle Association Inc. v. Bruen, 

, 2126 (2022).

       In deciding whether a firearm regulation is
constitutional under the Second Amendment, courts must
examine whether the “regulation [being reviewed] is part of the
historical tradition that delimits the outer boundaries of the
right to keep and bear arms.” 

. In making this
determination, “a court must decide whether the challenger or
conduct at issue is protected by the Second Amendment and, if
so, whether the Government has presented sufficient historical
analogues to justify the restriction.” Range v. Att’y Gen., 

, 113 (3d Cir. 2023) (Shwartz, J., dissent) (emph.
added); see Majority Op. at II.A (citing Bruen, 142 S. Ct. at
2126) (explaining that, under Bruen, the court first decides
whether “the Second Amendment’s plain text covers an
individual’s conduct,” and if it does, “the government must
demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.”).

       District of Columbia v. Heller, 

 (2008),
recognized that the Second Amendment protects the right of an
“ordinary, law-abiding citizen to possess a handgun in the
home for self-defense,” see Bruen, 142 S. Ct. at 2122 (citing
Heller, 

), and Bruen held that “the Second and
Fourteenth Amendments protect an individual’s right to carry
a handgun for self-defense outside the home,” 

 However,
there is no dispute that there is some age threshold before
which the protection of the Second Amendment does not apply.

       The more acute question in this case, then, is where does
that age threshold lie? A “textual analysis focused on the
normal and ordinary meaning of the Second Amendment’s
language,” see Bruen, 142 S. Ct. at 2127 (citing Heller, 

) (quotation marks omitted), and an
“examination of a variety of legal and other sources,” see 

 at
2127-28 (quoting Heller, 

), leads to the

                                   1
conclusion that the scope of the right, as understood during the
Founding-era, excludes those under the age of 21.

I.     The public in 1791 did not understand those under
       21 to be part of “the people” protected by the Second
       Amendment.

        Bruen affirms the historical-textualist methodology
established in Heller. Bruen, 141 S. Ct. at 2127. To interpret
the language of the Second Amendment, one must look to
historical sources evidencing how the public would have
understood its text near the time of its ratification. Bruen, 141
S. Ct. at 2127-28; Heller, 

. This principle
presumes that constitutional rights do not change over time, but
“are enshrined with the scope they were understood to have
when the people adopted them.” Bruen, 141 S. Ct. at 2136
(quoting Heller, 

). When later history or
understanding contradicts the original public meaning of the
text, the original understanding controls. Id. at 2137.

         Under Bruen, “[w]hen the Second Amendment’s plain
text covers an individual’s conduct, the Constitution
presumptively protects that conduct.” Bruen, 141 S. Ct. at
2126, 2129-30 (emph. added). Thus, here, it would appear a
presumption would apply only if the plain text of the Second
Amendment covers the Appellants’ conduct. In other words,
if the text doesn’t protect the Appellants here, it doesn’t protect
their conduct, and a presumption would not apply.

        While my colleagues in the Majority acknowledge that
“from before the founding and through Reconstruction, those
under the age of 21 were considered minors,” see Majority Op.
at II.B (emph. added), the Majority also holds that the “words
‘the people’ in the Second Amendment presumptively
encompass all adult Americans, including 18-to-20-year-olds.”
See Majority Op. at intro. (emph. added). Thus, the Majority
concludes that “all adult Americans” “include[es] 18-to-20-
year-olds.” Id. It is worth reiterating that there is no dispute
that there is some age threshold before which the protection of
the Second Amendment does not apply.

       In Bruen, it was “undisputed that [the petitioners] – two
ordinary, law-abiding, adult citizens – [were] part of ‘the

                                    2
people’ whom the Second Amendment protects.” Bruen, 142
S. Ct. at 2134 (emph. added). Whether the plain text of the
Second Amendment covered the individual petitioners in
Bruen was not at issue, and the Supreme Court “therefore
turn[ed] to whether the plain text of the Second Amendment
protects [the petitioners’] proposed course of conduct.” Id.
(emph. added). There was no dispute in Bruen that the
petitioners were part of “the people” in the Second
Amendment. Similarly, whether individuals under 21 were
part of “the people” in the Second Amendment was not at issue
before the Supreme Court in Heller or before this Court in
Range.

        The Majority seems to acknowledge that the
Commissioner’s argument that 18-to-20-year-olds are not
among “the people” protected by the Second Amendment is a
challenge to “the first step of the Bruen test,” see Majority Op.
at II.B (emph. added). However, the Majority then concludes
that “[t]o succeed on this argument, the Commissioner must
overcome the strong presumption that the Second Amendment
applies to ‘all Americans.’” Id. (citing Heller, 

).
It stands to reason that any reference to a definition of “the
people” as it relates to 18-to-20-year-olds in Heller, Bruen, and
Range is dictum.

        It is only when the Second Amendment’s plain text
covers an “individual’s conduct” (first step) that the
presumption of constitutional protection applies, and “the
government must then justify its regulation by demonstrating
that it is consistent with the National historical tradition of
firearm regulation” (second step). Bruen, 142 S. Ct. at 2129-
30. Because the first step of the Bruen test for presumption of
constitutional protection to apply is not met here, there is no
burden to overcome such a presumption. See Majority Op. at
II.B (citing Heller, 

).

       Nevertheless, assuming a need to overcome a
“presumption that the Second Amendment applies to ‘all
Americans’,” see 

 (citing Heller, 

), as the
Majority appears to do, in order to conclude the plain text of
the Second Amendment covers the conduct of individuals
under 21 at the first step of the Bruen test, there is evidence
that the Founding-era public would not have understood the

                                    3
text of the Second Amendment to extend its protection to those
under 21.

       At the Founding, people under 21 lacked full legal
personhood. Indeed, there is no disagreement that at the time
of the Founding, people under 21 were considered “infants” in
the eyes of the law. See Majority Op. at II.B; see also 1 William
Blackstone, Commentaries *453; 4 James Kent, Commentaries
on American Law 266 (W.M. Hardcastle Brown ed. 1894)
(1826). Nor is there serious debate that the conception of
adulthood beginning at age 18 is relatively new to American
law.1 But to understand the significance of the historical-legal
conception of infant status, one must understand its predicate
presumption of incapacity.

       The Founding-era generation inherited the common-law
presumption that persons who lacked rationality or moral
responsibility could not exercise a full suite of rights. Abrams,
supra note 1, at 20. This idea has its roots in the Enlightenment
conception of rights as being endowed only to those “with
discernment to know good from evil, and with power of
choosing those measures which appear . . . to be more
desirable.” 1 William Blackstone, Commentaries *125; see
Abrams, supra note 1, at 20. In other words, those whom
society considered to be rational.

        Both at English common law and in eighteenth-century
American law, infants were universally believed to lack such
rationality. Infants were viewed as requiring the protection of
a guardian in the management of their affairs. 3 William
Blackstone, Commentaries *48; 1 Commentaries *463. James
Kent, a respected contemporary scholar of American
constitutional law, said “[t]he necessity of guardians results
from the inability of infants to take care of themselves; and this
inability continues, in contemplation of law, until the infant has
attained the age of twenty-one years.” Saul Cornell, “Infants”

       1
         See Douglas E. Abrams, Susan V. Mangold, & Sarah
H. Ramsey, Children and the Law: Doctrine, Policy, and
Practice 19 (2020). Of course, the drinking age is still 21, and
federal law currently prohibits tobacco sales to persons under
21. Id. The tradition of limiting the rights of those under 21
continues into the present.
                                    4
and Arms Bearing in the Era of the Second Amendment, Yale
L. & Pol’y Rev. (Oct. 26, 2021) (hereinafter “Infants”)
(quoting 2 James Kent, Commentaries on American Law 191
(O. Halsted ed., 1827)). Moreover, Blackstone referred to
infancy as “a defect of the understanding.” 4 William
Blackstone, Commentaries *15-18.

        A consequence of this legal presumption was that at the
Founding, infants had few independent rights. Blackstone
explains that, because of infants’ inherent incapacity, parents
had the power to limit their children’s rights of association, to
control their estates during infancy, and to profit from their
labor. 1 William Blackstone, Commentaries *452-53. Infants
could not marry without their father’s consent. Id. at *437,
*452. Fathers had a right to the profits of their infants’ labor.
Id. Even the right to contract, which the Framers thought to
enshrine in the body of the Constitution, was greatly abridged
for infants. Id. at *465; Infants; Eugene Volokh, Symposium:
The Second Amendment and the Right to Keep and Bear Arms
After Heller, 

, 1508-13 (2009) (noting
restrictions on minors’ exercise of fundamental rights and
freedoms, including the right to contract). Blackstone went so
far as to say that it was “generally true, that an infant [could]
do no legal act.” 1 William Blackstone, Commentaries *465.
It was not until the infant reached the age of 21 that “they
[were] then enfranchised by arriving at the years of discretion
. . . when the empire of the father, or other guardian, gives place
to the empire of reason.”                1 William Blackstone,
Commentaries *463 (emph. added).

       In England and the United States, infants could not sue
or be sued except by joining their guardians. 

. For
example, infants had “no legal standing to assert a claim in
court to vindicate their rights, including Second Amendment-
type claims.” Infants. Because they could only access courts
through their guardians, infants necessarily lacked redress
against their parents except in cases of extreme neglect or
abuse. 1 William Blackstone, Commentaries 168 n.9 (George
Chase, ed.).2

       2
         Reason reemerges as a central justification of the
delegation of rights on the question of estates: a child could
only attack divestment from his father’s estate if he could
                                    5
       There is substantial evidence that this legal incapacity
controls in the context of the Second Amendment. An
important element of Justice Scalia’s reasoning in Heller was
that the Second Amendment did not create a new right, but
rather “codified a pre-existing right.” Heller, 

. Accordingly, common-law principles are
crucial to answering whether the right in question extends to
people under the age of 21.

        At the Founding, there was an important connection
between property law and the right to keep arms. Some state
constitutions expressly discussed both arms and militia service
in the context of property law. See, e.g., Saul Cornell, History
and Tradition or Fantasy and Fiction, 

, 153 (2022) (hereinafter “History and Tradition”). Several
states exempted arms used in the militia from seizure during
debt proceedings. 

 Some colonies required single men who
could not afford to arm themselves, to work as servants until
they could pay off the cost of a weapon. Nicholas J. Johnson
et al., Firearms Law and the Second Amendment 243 (2022).
And all colonies required certain persons to arm themselves at
their own expense and without just compensation, often
mandating that militia members purchase specific equipment
and that dependents be armed by their guardians. 

 at 177-
88, 242-54. There was thus an important relationship between
property law and gun law at the Founding. Infants’ common-
law lack of independent property rights suggests that they were
similarly disabled in keeping and bearing arms.

        One might infer additional context from another source:
the eighteenth-century college. At the Founding, “[c]ollege
was one of the very few circumstances where minors lived
outside of their parents’ or a guardian’s direct authority.”
Infants. But students were not liberated by their attendance;
rather, the representatives of the college stood in loco parentis,
a status based on parental consent which allowed them to




demonstrate a lack or deficiency of reason in doing so. 1
William Blackstone, Commentaries *448.

                                    6
exercise full legal power over the infants as though they were
in fact the youths’ parents.3

       Importantly, as with the parents themselves, the person
standing in loco parentis could not excessively punish or abuse
a child, suggesting that fundamental rights remained intact
under this relationship. 1 William Blackstone, Commentaries
*168 n.9 (George Chase ed.). Yet colleges at the Founding
could and did prohibit possession of firearms by students.
Infants. This was true of Yale (founded 1701), the University
of Georgia (founded 1785), the University of North Carolina
(founded 1776), and Thomas Jefferson’s University of Virginia
(founded in 1819). 

 Among these schools, such prohibitions
were unambiguous: students were not permitted to possess
arms while on campus. 

 The University of Georgia even
prohibited possessing weapons off-campus, strongly
suggesting that this authority was not predicated on or justified
by the student’s presence at a sensitive location, but rather
stemmed from the inherent power of the authority standing in
loco parentis to dictate all but the most fundamental rights of
the infants under its charge.4

       The totality of this evidence demonstrates that the
public during the Founding-era understood the plain text of the
Second Amendment did not cover individuals under the age of
21. At the Founding, those under 21 were considered infants,
a status that was a result of the presumption that people under

       3
           1 William Blackstone, Commentaries *453 ("[A
father] may also delegate part of his parental authority, during
his life, to the tutor or schoolmaster of his child; who is the in
loco parentis, and has such a portion of the power of the parent
committed to his charge, viz., that of restraint and correction,
as may be necessary to answer the purposes for which he is
employed.”).
       4
         “[N]o student shall be allowed to keep any gun, pistol,
Dagger, Dirk[,] sword cane[,] or any other offensive weapon in
College or elsewhere, neither shall they or either of them be
allowed to be possessed of the same out of the college in any
case whatsoever.” Infants (quoting The Minutes of the Senate
Academicus 1799–1842, Univ. of Ga. Librs. (2008)
[https://perma.cc/VVT2-KFDB]).
                                    7
the age of 21 lacked sufficient cognitive and moral faculties to
govern themselves. The consequences of this presumption
were profound: infants had very little independent ability to
exercise fundamental rights, including those of contract and
property. Indeed, except in a few narrow circumstances,
infants could not seek redress in the courts except through their
parents. Moreover, in one historical context, history suggests
that any right that an infant may have had to bear arms could
be abrogated in its entirety at the pleasure of the infant’s parent
or an authority standing in loco parentis. In light of such
evidence, the conclusion that infants during the Founding-era
were not meant to be protected under the Second Amendment
seems clear.

       The Majority points out that the Second Militia Act of
1792 required every white, male citizen between the ages of 18
and 45 to enroll in their local militia, equip themselves with
certain accoutrements (including “a good musket or firelock”),
and appear when called out to exercise or into service. 

. In addition, the age of militia service varied by state, with
some states requiring children as young as 15 to serve.5
Notwithstanding an argument that the Second Militia Act
supports Appellants’ position, there appears to be no claim that
15-year-olds are part of “the people” in the Second
Amendment. In any event, the fact that infants had a duty
under the Second Militia Act to enroll in the militia and thus to
equip themselves with arms for that purpose should not be
confused with such individuals otherwise having an
independent right under the Second Amendment. Some states
enacted statutes placing the burden of arming infants on their
guardians.6 Indeed, infants only rendered militia service under

       5
         Nicholas J. Johnson et al., Firearms Law and the
Second Amendment 188 (2022). Massachusetts had a typical
conscription law which required male residents between ages
16 and 60 to serve. 

. New Hampshire and Maine
had similar requirements. 

.
       6
        See, e.g., 3 Laws of New Hampshire, Province Period
83 (Henry Harrison Metcalf ed., 1915) (1754); An Act for
Forming and Regulating the Militia Within The State of New
Hampshire, in New-England, and For Repealing All the Laws
Heretofore Made for That Purpose, 1776 Acts & Laws of the
                                    8
the supervision of peace officers who, like teachers, stood in
loco parentis. See Johnson, supra note 5, at 243, 251. As noted
above, at the Founding, infants exercised and sought redress of
rights, including property rights, at the pleasure of their legal
guardians. See, e.g., 1 William Blackstone, Commentaries
*452-53; Infants. That individuals under 21 were required to
bear arms in the militia is not evidence that such individuals
otherwise consistently owned arms in their individual
capacities, much less that they had a right to own such property.

        Heller made clear that the Second Amendment codifies
an individual right to keep and bear arms that is unconnected
to militia service: “[A]part from [a] clarifying function, [the]
prefatory clause does not limit or expand the scope of the
operative clause.” Heller, 

. Militia service
cannot properly be disconnected from the right for the purpose
of limiting its scope but connected for the purpose of
expanding it; the two are independent. Again, Bruen affirmed
this historical-textual analysis. Bruen, 141 S. Ct. at 2127.

        Heller explains at length that the militia and “the
people” are distinct. Heller, 

. Although the
militia may overlap with “the people,” this does not mean that
every member of the militia is by extension part of “the people”
covered by the Second Amendment.

       As discussed above, infants during the Founding-era did
not merely lack certain legal rights, but nearly all legal rights.
The fact that this class of persons had no power to
independently exercise almost any rights of speech,
association, conscience, marriage, contract, suffrage, petition,
or property, strongly suggests that they would not be


Colony of N.H. 36, 39; An Act for Regulating and Governing
the Militia of the Commonwealth of Massachusetts, c. 1, §
XIX, 1793 Mass Acts & Laws May Sess. 289, 297; An Act, for
Regulating and Governing the Militia of This State 1797, c.
LXXXI, No. 1, § 15, 2 The Laws of the State of Vermont,
Digested & Compiled 122, 131-32 (Randolph, Sereno Wright
1808); 2 William T. Dortch, John Manning & John S.
Henderson, The Code of North Carolina § 3168, 346-47 (New
York, Banks & Bros. 1883).
                                    9
understood as receiving constitutional protections as members
of “the people” under the Second Amendment.

        Then-Judge Amy Coney Barrett’s discussion of felons
and the mentally ill, see Majority Op. at II.B (citing Kanter v.
Barr, 

 (7th Cir. 2019) (Barrett, J.,
dissenting)), concerns classes distinct from infants. At the
Founding, felons and the mentally ill were extended greater
rights than infants, and their legal disability resulted from legal
findings, not a priori legal classifications. Felons and the
mentally ill lost their rights only after they were found
untrustworthy, whereas persons under 21 were classified as
infants because as a class of persons they were considered
untrustworthy. While insanity and criminality test the
capacities and character of the individual, respectively, the age
of majority as a concept suppresses individual differentiation.7
See Abrams, supra note 1, at 19.

       At the Founding, people under 21 bore arms at the
pleasure of their superiors. Were they to find this condition
violative of their rights, they would have no right to petition
the courts for redress. Stated bluntly, the same generation from
whom Appellants may have begged relief would not have
permitted them to bring their claim. Accordingly, I respectfully
disagree with my colleagues in the Majority, and conclude that
during the Founding-era, the plain text of the Second
Amendment was understood to mean that persons under 21
were not part of “the people” protected by the Second
Amendment.

II.    The challenged statutes are consistent with this
       Nation’s historical tradition.

      Under Bruen, “[w]hen the Second Amendment’s plain
text covers an individual’s conduct, the Constitution

       7
         Of course, there are some exceptions to this general
rule. For example, some criminal penalties can accrue to
individuals below the age of majority, a court may find that a
minor is properly developed to make certain medical decisions
for themselves, and a court may find a minor sufficiently
mature to warrant emancipation. See, Abrams supra note 1, at
19.
                                   10
presumptively protects that conduct.” Bruen, 142 S. Ct. at
2129-30. As explained above, the ordinary understanding of
the plain text of the Second Amendment during the Founding-
era was that individuals under the age of 21 were not part of
“the people” whom the Second Amendment protects. Thus, the
Second Amendment’s plain text does not cover these
Appellants’ conduct, and the Constitution does not
presumptively protect the conduct regulated by the challenged
statutory scheme.

       The Majority points out that, under Bruen: “The court
first decides whether ‘the Second Amendment’s plain text
covers an individual’s conduct.’ . . . If it does, ‘the government
must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.’” See
Majority Op. at II.A (citing Bruen, 142 S. Ct. at 2126) (emph.
added). Here, because the plain text of the Amendment does
not protect the conduct of these Appellants, the government
does not have a burden to “identify[] a ‘founding-era’ historical
analogue to the modern firearm regulation.” See id. (citing
Bruen, 142, S. Ct. at 2130-33).

        In that the ordinary Founding-era meaning of the
Second Amendment’s plain text does not cover these
Appellants’ conduct, it should not be surprising that the
challenged statutory scheme “is consistent with this Nation’s
historical tradition,” see Bruen, 142 S. Ct. at 2126. Whether
there are any known Founding-era statutes that barred
independent firearm ownership or possession by people under
21 would not seem to be determinative of whether the
challenged regulation is “consistent” with our Nation’s
historical tradition. Legislatures tend not to enact laws to
address problems that do not exist, and the absence of such
laws does not speak to an inconsistency with the Nation’s
historical tradition or the undisputed Founding-era
understanding of the limited rights of infants. As explained
above, young people at the Founding bore arms only at the
pleasure of their guardians, and they had no independent right
to petition courts for redress.

       Under Bruen, it is appropriate to consider the evidence
from the Founding and determine if later evidence offers
greater proof and context. Between 1856 and 1893, at least 17

                                   11
states passed laws restricting the sale of firearms to people
under 21. David B. Kopel & Joseph G.S. Greenlee, The
History of Bans on Types of Arms Before 1900, 50 J. of Leg. 1,
192-93. Some restricted non-sale transfers. Id. Many included
provisions expressly putting the gun rights of minors at the
discretion of authority figures. Id.; see also Repository of
Historical Gun Laws, DUKE CENTER FOR FIREARMS LAW,
https://firearmslaw.duke.edu/repository/search-the-
repository/. These laws demonstrate that, at least as early as
the mid-nineteenth century, legislatures believed they could
qualify and, in some cases, abrogate the arms privileges of
infants. While these laws cannot independently prove the
constitutionality of the challenged laws, they certainly seem to
be consistent with the challenged statutory scheme here in that
they regulate arms privileges of “infants.” But again, the 1791
meaning of the Second Amendment controls, and it appears
that the challenged statutory scheme is not inconsistent (and
thus is consistent) with this Nation’s historical tradition.

III.   Conclusion

       A review of historical sources reveals that the Second
Amendment’s plain text does not cover Appellants’ conduct
because it would have been understood during the Founding-
era that Appellants are not “part of ‘the people’ whom the
Second Amendment protects.” See Bruen, 142 S. Ct. at 2134.
Further, the challenged statutory scheme here is “consistent
with this Nation’s historical tradition.” Id. at 2126. Because
Pennsylvania’s statutory scheme does not violate the Second
Amendment of the Constitution, I respectfully dissent.




                                  12