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
                   _______________

 Submitted on the Briefs After Remand from the Supreme
                Court of the United States
                   December 2, 2024


Before: JORDAN, RESTREPO and SMITH, Circuit Judges

                (Filed January 13, 2025)
                     _______________

Adam Kraunt
Firearms Policy Coalition
1215 K Street – 17th Floor
Sacramento, CA 95814

John D. Ohlendorf [ARGUED]
Peter Patterson
Haley N. Proctor
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

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




                               2
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

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
                    _______________




                              3
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, wanted to carry firearms outside their homes for lawful
purposes, including self-defense. Relying on the Second
Amendment to the U.S. Constitution, 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 appealed the District Court’s order denying them
preliminary injunctive relief and dismissing their case. In
January 2024, we reversed and remanded for the District Court
to enjoin the Commissioner from arresting 18-to-20-year-olds
who violated the statutes. Lara v. Comm’r Pa. State Police, 

, 140 (3d Cir. 2024), cert. granted, judgment vacated
sub nom. Paris v. Lara, No. 24-93, 

 (U.S.
Oct. 15, 2024). The Commissioner petitioned the Supreme
Court for certiorari review. In the meantime, the Supreme
Court decided United States v. Rahimi, 

 (2024),
which upheld the constitutionality of a federal firearms
regulation.     The Supreme Court then granted the
Commissioner’s petition in this matter, summarily vacated our
judgment, and remanded the case to us for further
consideration in light of Rahimi.

      According to the Supreme Court’s directive, we have
considered Rahimi and its clarification of the analysis outlined




                               4
in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

 (2022). We conclude that our prior analysis reflects the
approach taken in Bruen and clarified in Rahimi. We did
indeed consider “whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition[,]” not whether a “historical twin” of the regulation
exists. Rahimi, 

. Having determined that
Rahimi sustains our prior analysis, we will again reverse and
remand the District Court’s judgment. Much of what follows
is repetitive of our earlier decision, but we provide it as
background to the legal analysis and conclusions that follow.

I.    BACKGROUND1

      A.       Pennsylvania’s firearm statutes

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

, an individual may not carry a concealed firearm
without a license to do so and must be at least 21 years old to
apply for such a license. A concealed-carry license permits the
holder to carry a firearm even during a state of emergency. 

§ 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


      1
          The operative facts remain undisputed.




                               5
of fifteen other exceptions enumerated in § 6106(b).2 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
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 amended its
constitution in 2021 to limit the governor’s authority to issue
such a declaration to twenty-one days, unless the General
Assembly votes to extend it. Pa. Const. art. IV, § 20.
Subsequently, all state-wide emergency declarations lapsed.
Certain county-wide emergencies have since been declared.3


       2
         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.
       3
         For example, the governor issued emergency
proclamations when a portion of Interstate 95 collapsed in
Philadelphia County in June 2023 and when Tropical Storm




                               6
      B.     Proceedings below

       The Appellants sued the Commissioner in his official
capacity,4 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.5

       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
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

Debby caused severe flooding in multiple Pennsylvania
counties in August 2024.
      4
        At the time the Appellants filed their complaint, the
Commissioner was Robert Evanchick. He has since been
replaced by Christopher Paris.
      5
         Besides facially challenging those provisions of the
UFA, the complaint also raised as-applied challenges. 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[.]”).




                              7
restrictions on firearm ownership, possession and use for
people younger than 21 fall within the types of ‘longstanding’
and ‘presumptively lawful’ regulations envisioned by [the
Supreme Court in 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. While their appeal
was pending, the Supreme Court decided Bruen. The parties
submitted additional briefing on Bruen’s impact, and we held
oral argument. As noted earlier, we reversed and remanded
with instructions to the District Court 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.” Lara, 91 F.4th
at 140. The Commissioner then petitioned the Supreme Court
for a writ of certiorari. After the Supreme Court decided
Rahimi, it granted the Commissioner’s petition, vacated our
decision, and remanded for further consideration. Lara, 

, at *1.          The parties have provided us
supplemental briefing on the relevance of Rahimi to this
dispute.6




      6
         The Commissioner also filed a motion to remand the
case to the District Court, which we denied.




                              8
II.    DISCUSSION7

       A.     Rahimi clarifies and applies Bruen’s two-part
              test.

        The Second Amendment, controversial in interpretation
of late,8 is simple in its text: “A well regulated Militia, being

       7
          When considering an appeal from the grant of 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).
       8
           Compare, e.g., Joseph Blocher & Eric Ruben,
Originalism-by-Analogy           and     Second     Amendment
Adjudication, 133 YALE L.J. 99, 105, 107 (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. … Rahimi is an




                               9
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 its landmark Heller decision, the Supreme Court
held that, regardless of militia service, the Second and
Fourteenth Amendments guarantee to an individual the right to
possess a handgun at home for self-defense. 

. The opinion addressed a District of Columbia law that
banned handguns and required other “firearms in the home be
rendered and kept inoperable at all times.” 

. Pertinent
here, 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 interpreted that observation as endorsing
a means-end scrutiny analysis in Second Amendment cases.9



ideal chance to fix some attendant doctrinal problems before
they spread further.”), with Nelson Lund, Bruen’s Preliminary
Preservation of the Second Amendment, 23 FEDERALIST SOC’Y
REV. 279, 289 (2022) (“[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.”).

       9
         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




                               10
       We turned out to be wrong. In 2022, the Supreme Court
decided Bruen and squarely rejected “means-end scrutiny in
the Second Amendment context.” 597 U.S. at 19. It instead
announced a new two-step analytical approach. Id. at 17-19.
At the first step, a court determines whether “the Second
Amendment’s plain text covers an individual’s conduct[.]” Id.
at 24; see id. at 20 (explaining that the “‘textual analysis’
focuse[s] on the ‘normal and ordinary’ meaning of the Second
Amendment’s language” (quoting Heller, 

-
78)). If the text applies to the conduct at issue, “the
Constitution presumptively protects that conduct.” Id. at 24.


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
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.”).




                               11
         At the second step, a court determines whether the law
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 restriction 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. 

 at 24-
27. 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.” 

 at 34 (quoting Heller,

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

 at 27
(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 34-35.

        A few months ago, the Supreme Court applied Bruen in
Rahimi and held that “an individual pos[ing] a credible threat
to the physical safety of an intimate partner” may be disarmed
while a restraining order is in effect. Rahimi, 

.
The Court reiterated that Bruen lays out the “appropriate
analysis” and requires a court to consider the principles behind
our nation’s history of firearm regulation. 

. That
inquiry requires a court to “ascertain whether the new law is
‘relevantly similar’ to laws our tradition is understood to
permit, ‘apply[ing] faithfully the balance struck by the
founding generation to modern circumstances.’” 

 (alteration
in original) (quoting Bruen, 597 U.S. at 29). But the present-




                               12
day regulation need not be a “dead ringer” or “historical twin”
of something from eighteenth-century America. Id. (quoting
Bruen, 597 U.S. at 30). Rather, “the appropriate analysis
involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition.” Id. As in Bruen, examining why and how the
regulation burdens the individual’s Second Amendment right
is central to the analysis. Id.

        Bearing all that in mind, the Supreme Court held that
the statute at issue in Rahimi – namely one disarming a person
subject to a domestic violence restraining order – fit
“comfortably” within the Nation’s historical tradition of
firearm regulation, which, since the founding, has “included
provisions preventing individuals who threaten physical harm
to others from misusing firearms.”10 Id. at 690; see id. at 695-
98 (discussing founding-era surety and going armed laws).
The Court also concluded that the statute did not go too far in
regulating that conduct, as it disarms an individual only under
specific circumstances and for a certain period. Id. at 699.

       In sum and to reiterate, at a high level, the test outlined
in Bruen and applied again in Rahimi 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[.]” Bruen, 597 U.S. at 24. If it does, the government

       10
          The first step of the Bruen test was not at issue in
Rahimi. See United States v. Rahimi, 

 (2024)
(Gorsuch, J., concurring) (“[N]o one questions that the law [the
appellant] challenges addresses individual conduct covered by
the text of the Second Amendment.”).




                               13
must demonstrate that the challenged regulation is consistent
with the principles behind our Nation’s historical tradition of
firearm regulation. Rahimi, 

; Bruen, 597
U.S. at 24.

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

       In defense of the Pennsylvania statutes, the
Commissioner begins by arguing that 18-to-20-year-olds are
not among “the people” protected by the Second Amendment,
and so the Appellants’ challenge fails the first step of the Bruen
test. We considered this issue as a matter of first impression
during our first go-round in this case. Lara, 91 F.4th at 130-
32. Because the Supreme Court in Rahimi had no reason to
question whether the text of the Second Amendment covered
the individual disarmed in that case, 

 (Gorsuch,
J., concurring), and the Court otherwise preserved the first step
of the Bruen analytical approach, 

, our analysis
remains the same.

       To succeed on this point, 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, 

 (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




                               14
is “a strong presumption that the Second Amendment right …
belongs to all Americans.”11 Id. at 581.

       Bruen 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.” 597 U.S. at
70 (quoting Heller, 

).12 And in Rahimi, the
Supreme Court clarified that, although it used the term
“responsible” in Heller and Bruen “to describe the class of
ordinary citizens who undoubtedly enjoy the Second
Amendment right[,]” it said nothing about the rights of those
not “responsible.” Rahimi, 

. The Court
went on to note that it is unclear what a rule based on so vague
an adjective as “responsible” would even entail. 

.

        Taking our cue from the Supreme Court, we have
construed the term “the people” to cast a wide net. In Range v.
Attorney General, No. 21-2835, 

 (3d Cir.
Dec. 23, 2024), we recently considered an as-applied challenge
to the constitutionality of a federal statute that barred the
plaintiff-appellant from purchasing firearms because of a state-
level conviction for having made a false statement to obtain
food stamps. We held that the Supreme Court’s past references


       11
         Heller identified Second Amendment rightsholders at
various points as “Americans,” “all Americans,” “citizens,”
and “law-abiding citizens.” 

 (2008).
       12
         Bruen also stated that the protections of the Second
Amendment extend to “ordinary, law-abiding, adult citizens.”

, 31 (2022).




                              15
to “law-abiding citizens” did not mean that a criminal
conviction removes an American citizen from “the people,”
especially in light of Rahimi’s caution against using a vague
and ambiguous concept to dictate the Second Amendment’s
applicability. Range, 

, at *4. Because other
constitutional provisions referring to “the people” do not
categorically exclude felons, we saw “no reason to adopt a
reading of ‘the people’ that excludes Americans from the scope
of the Second Amendment while they retain their
constitutional rights in other contexts.”13 

      The Commissioner endeavors to sidestep 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

       13
         Our dissenting colleague categorizes any reference to
the definition of “the people” in Heller, Bruen, and Range as
dictum. Dissent at I.A. Dictum or not, we take the use of the
words “all Americans” in all three cases to mean that all
Americans are indeed guaranteed the right to bear arms under
the Second Amendment. As discussed more fully herein, the
question then becomes whether those who have not reached the
age of legal adulthood can, consistent with historical
precedent, be disabled from exercising that right, and we agree
with our colleague that the answer to that is certainly yes. But
that does not mean the definition of legal adulthood at the time
of the founding is the definition that should control today.
Using that earlier and more restrictive definition makes no
more logical sense than would restricting voting rights to those
who would have had such rights at the founding, thus
excluding from the franchise all but white, land-owning men
who are 21-years-of-age or older.




                              16
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-20-year-olds
during that period, however, the Commissioner’s position is
untenable for three reasons.

        First, it supposes that the initial step in 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 analysis, Rahimi, 

, we are not limited
to looking through that same retrospective lens at the first step.
If, at step one, we were rigidly limited by eighteenth-century
conceptual boundaries, “the people” would consist solely of
white, landed men, and that is obviously not the state of the




                                17
law.14 Cf., 

 (explaining that the Court’s Second
Amendment precedents “were not meant to suggest a law
trapped in amber”); Range, 

, at *6
(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 could not exercise certain legal rights at the
founding, they were excluded ex ante from the scope of “the
people.” One can be included as a member of that class and
still not be allowed to carry a gun. For example, as then-Judge
Barrett explained before Bruen, “[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, the freedom to
peaceably assemble and to petition the government (id. amend.

       14
           See Note, The Meaning(s) of ‘The People’ in the
Constitution, 126 HARV. L. REV. 1078, 1085 (2013) (“‘[T]he
people’ largely meant property-owning white adult males, at
least initially.”).




                               18
I), and the right against unreasonable searches and seizures (id.
amend. IV).15 Heller cautions against the adoption of an
inconsistent reading of “the people” across the Constitution.

. 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, 597 U.S. at 70 (quoting McDonald v.
Chicago, 

 (2010)).

      We therefore reiterate our holding that 18-to-20-year-
olds are, like other subsets of the American public,
presumptively among “the people” to whom Second
Amendment rights extend.16


       15
          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.”).
       16
          Four other federal appellate courts have determined
that 18-to-20-year-olds are among “the people” protected by
the Second Amendment. Rocky Mountain Gun Owners v.
Polis, 

, 116 (10th Cir. 2024); Worth v. Jacobson,

, 692 (8th Cir. 2024); Hirschfeld v. ATF, 

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

 (4th




                               19
Cir. 2021); Jones v. Bonta, 

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

 (9th Cir. 2022).
        Polis and Worth were decided after Rahimi. In Polis,
the Tenth Circuit held that a citizen under the age of 21 is part
of “the people” as defined by the Second Amendment for
similar reasons as we do here, including that “‘the people’ does
not seem to vary” across the Constitution. 121 F.4th at 116.
The Tenth Circuit rejected the argument that “the people”
excludes those without “full legal rights” at the founding by
comparing them to felons, who have “consistently been
disenfranchised from the Founding through modern day” but
are included in “the people.” Id. (citing Kanter v. Barr, 

 (7th Cir. 2019) (Barrett, J., dissenting)). The
Eighth Circuit in Worth trod similar ground. 108 F.4th at 689-
91. It also rejected reading the Second Amendment beyond its
plain text to exclude those considered “irresponsible” or below
a certain age limit. Id. at 691-92.
         Hirschfeld and Bonta were decided before Bruen.
Hirschfeld was vacated as moot because the plaintiff turned 21
while the 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




                               20
       C.     The relevant historical timeframe

       If there is any argument to be made under Rahimi that
the Commonwealth can restrict the rights of 18-to-20-year-olds
with respect to firearms, the Commissioner must make that


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
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).




                               21
argument by showing that such a restriction is consistent with
the principles that underpin the Nation’s historical tradition of
gun regulation. Rahimi, 

. The Commissioner
sought to shoulder that burden, but, to determine whether he
succeeded in his task, we first must understand which time
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. Again, we addressed this issue the first time
we considered this case.

       The Bruen Court 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.” 597 U.S. at 38. For the same
reason, it was also unnecessary to resolve the timeframe
question in Rahimi. 

 n.1. We, however, are
situated differently. 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.) He has thus asserted, at least by implication, that
there is a conflict between regulatory burdens as they existed
in 1791 and 1868, respectively. We thus are obligated to
confront the choice of timeframe.17

       17
         The Supreme Court was able to avoid resolving this
question in Bruen and Rahimi because it could say that the
answer did not matter: the laws relevant to the Second
Amendment issue in each case were roughly the same in 1791




                               22
        As in our earlier decision in this case, we begin with the
premise 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, 597 U.S. at 37; 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


and 1868. Bruen, 597 U.S. at 38; Rahimi, 

 n.1.
But the Commissioner has forced the issue here by insisting
that the laws at the time Americans adopted the Fourteenth
Amendment would have allowed states to forbid people in the
Appellants’ position from having firearms, while at the same
time providing no evidence of a tradition of disarming 18-to-
20-year-olds at the time of the founding. By maintaining that
there is ample evidence from 1868 to support the Appellants’
disarmament, but offering none from the founding era, the
Commissioner is claiming that there is a difference between
how each generation understood the right, so we must pick
between the two timeframes.




                               23
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
the Second Amendment was ratified. Although neither Bruen
nor Rahimi definitively decided this issue, Bruen 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, 597 U.S. at 37. 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




                              24
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.18 

; see also 

 (“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 still not articulated a theory for
defining some rights according to their public meaning in 1791
and others according to their public meaning in 1868. All that
the Commissioner has managed to muster is the observation
that “[i]n Rahimi, the Court clearly stated that the question of
whether ‘courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth
Amendment was ratified in 1868 when defining its scope’
remains unresolved.” (Comm’r Post-Rem. Supp. Br. at 21
(quoting Rahimi, 

 n.1)). A more complete
characterization of Rahimi would have been to fully quote the
Supreme Court’s statement that, just as in Bruen, there was no
reason for the Court to take up the question. This is how the

       18
         See also Printz v. United States, 

(1997) (“[E]arly congressional enactments ‘provid[e]
contemporaneous and weighty evidence of the Constitution’s
meaning.’”) (quoting Bowsher v. Synar, 

(1986)).




                               25
Court put it: “We explained [in Bruen] that under the
circumstances, resolving the dispute [over 1791 versus 1868 as
the proper time to gauge the scope of the Second Amendment]
was unnecessary to decide the case. The same is true here.”
Rahimi, 

 n.1 (emphasis added) (citation
omitted). In other words, the Supreme Court hasn’t had to
opine on the question yet, but we have, in the earlier appeal in
this very case.

        Nothing in Rahimi undermines the reasoning there. We
reiterate, for the reasons stated in our earlier opinion, Lara, 91
F.4th at 133-34, that the constitutional right to keep and bear
arms should be understood according to its public meaning in
1791, as that “meaning is fixed according to the understandings
of those who ratified it[.]” Bruen, 597 U.S. at 28; see also id.
at 37 (“[The Court has] generally assumed that the scope of the
protection[s] applicable to the Federal Government and States
is pegged to the public understanding of the right when the Bill
of Rights was adopted in 1791.”).

        That said, Rahimi teaches that public meaning is not just
“those regulations … that could be found in 1791[,]” but rather
“the principles underlying the Second Amendment,” with
historical regulations providing evidence of those principles.
Rahimi, 

. That evidence can include laws
“through the end of the 19th century[,]” which the Supreme
Court has recognized can be “a ‘critical tool of constitutional
interpretation’” because they can be evidence of a historical
tradition and shed important light on the meaning of the
Amendment as it was originally understood. Bruen, 597 U.S.
at 35 (quoting Heller, 

). It offered two such
examples in Bruen: First, evidence of “‘a regular course of
practice’ can ‘liquidate & settle the meaning’” of constitutional




                               26
terms and phrases. 

 at 35-36 (quoting Chiafalo v.
Washington, 

, 593 (2020)). And second, post-
ratification history can confirm a court’s understanding of
Founding-era public meaning. Id. at 37. Although the Court
“d[id] not undertake an exhaustive historical analysis … of the
full scope of the Second Amendment[,]” id. at 31
(quoting Heller, 

), or “conclusively determine
the manner and circumstances in which postratification
practice may bear on the original meaning of the
Constitution[,]” id. at 81 (Barrett, J., concurring), it drew a firm
line where later evidence “contradicts earlier evidence[,]” id.
at 66. In that circumstance, “later history contradicts what the
text says, [so] the text controls.” Id. at 36.

        Bruen thus reminds us that laws enacted in the late-19th
century “do not provide as much insight into” the original
meaning of the right to keep and bear arms as do earlier
sources. Id. (quoting Heller, 

). And “post-
ratification adoption or acceptance of laws that are inconsistent
with the original meaning of the [Second Amendment]
obviously cannot overcome or alter that text.” 

        That is precisely the problem here: Founding-era laws
reflect the principle that 18-to-20-year-olds are “able-bodied
men” entitled to exercise the right to bear arms, Heller, 

, while the Commissioner relies on laws enacted at
least 50 years after the ratification of the Second Amendment
to argue the exact opposite.19 The Supreme Court has

       19
        Again, unlike Bruen and Rahimi, the case before us is
one in which history that long postdates the ratification of the
Second Amendment is incompatible with the public




                                27
counseled “against giving postenactment history more weight
than it can rightly bear,” Bruen, 597 U.S. at 35, and given its
irreconcilable conflict with the Founding-era laws, the
Commissioner’s catalogue of statutes from the mid-to-late
nineteenth century can bear none.20 What is left is an early


understanding in 1791, and, of course, we decide today only
the case before us.
       20
          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); 

(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




                               28
eighteenth-century statute that 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 plantation other than his
own[.]”21


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 Dec. 17, 2024).
       21
            In full, the Act provided:




                                 29
      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
Gun Laws, https://firearmslaw.duke.edu/laws/the-statutes-at-
large-of-pennsylvania-c-142-p-254-an-act-to-prevent-the-




                              30
       In our prior opinion, we compared the burdens imposed
by that 1721 statute with those at issue here, discerning no near
equivalence or significant analogue between them. Lara, 91
F.4th at 135. That type of comparison comports with Rahimi’s
methodology, which calls for us to consider “why and how”
founding-era laws and present-day ones burden the Second
Amendment right so we can determine whether the modern law
is “analogous enough” to historical precursors. Rahimi, 

 (quoting Bruen, 597 U.S. at 30). Our prior analysis
and conclusions, therefore, remain wholly consistent with
Supreme Court precedent.

        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.22 Act of Apr. 9, 1760, ch. 456, 6 Statutes at


killing-of-deer-out-of-season-and-against-carrying-of-guns-
or-hunting-by-persons-not-qualified/ (last visited Dec. 17,
2024).
       22
            In full, the relevant portion of the 1760 Act provided:

       Be it enacted by the authority aforesaid, 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 [e]nclosed or improved lands of




                                 31
Large 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, for that matter,
any other subset of the Pennsylvania population. Although the
Commissioner is not tasked with identifying a precise match
between the present-day regulation and historical precursors,
Rahimi, 

, he fails to establish that the
Pennsylvania statutory scheme disarming Appellants is at all
analogous to the founding-era statute he leans on. In making
this observation, we are not, as he complains, demanding that
he produce a historical twin (Comm’r Post-Rem. Supp. Br. at
20); we are insisting only that he provide something that in
principle is genuinely analogous, and the 1721 Pennsylvania
statute falls conspicuously short.



       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 offense forfeit
       the sum of forty shillings.

Act of Apr. 9, 1760, ch. 456, 6 Statutes at Large of Pa. 46, 48.
Text available at the Legislative Reference Bureau of
Pennsylvania,       https://palrb.gov/Preservation/Statutes-at-
Large/View-Document/17001799/1760/0/act/0456.pdf (last
visited Dec. 17, 2024).




                               32
        Against the 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 18.23 Second 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


       23
          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[.]” 

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

 (1792).




                               33
is thus entirely consistent with them.”24 (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 – 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.”25 (Comm’r Letter Br. Reply at 5.)

       24
         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).
       25
           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-




                                34
        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 to a single founding-era statute imposing
restrictions on the freedom of 18-to-20-year-olds to carry
guns.26 The Commissioner’s contention that any reliance on
militia laws would force us to invalidate laws prohibiting 16-
to-17-year-olds 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 perhaps attributable to necessities created by
ongoing armed conflicts – the Appellants rightly observe that,


0116#BNFN-01-06-02-0116-fn- 0001 (last visited Dec. 17,
2024).
      26
          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)
(“[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).




                              35
“[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
continues to be a narrow one. Our question is whether the
Commissioner has borne his burden of proving that
Pennsylvania’s restriction on 18-to-20-year-olds’ Second
Amendment rights is consistent with the principles that
underpin founding-era firearm regulations, and the answer to
that is no.

       D.     Mootness

       The Commissioner advanced a number of other
arguments in his original appeal, only one of which bears any
further comment here.27 He contended that the case was moot

       27
          In addition to the mootness argument addressed here,
the Commissioner asserted that the Eleventh Amendment and
Article III of the Constitution barred Appellants’ claim and that
Appellants forfeited their request for injunctive relief and
failed to adequately describe that relief. The Commissioner
has provided no further argument on those points in this
revived appeal. We thus refer to the relevant portions of our




                               36
because the Appellants no longer faced any restrictions on their
ability to carry publicly, which eliminated any injury for which
they could obtain relief. He pointed to the amendment to
Pennsylvania’s constitution that limits the governor’s authority
to issue an emergency declaration to 21 days, see Pa. Const.
art. IV, § 20(c), and he noted that the emergency proclamations
in place when this suit began have lapsed. He also argued that
the claims of the individual Appellants were moot because they
reached the age of 21 and became eligible to apply for
concealed-carry licenses.28


prior opinion, Lara v. Comm’r Pa. State Police, 

,
138-40 (3d Cir. 2024), cert. granted, judgment vacated sub
nom. Paris v. Lara, No. 24-93, 

 (U.S. Oct.
15, 2024), to which we have nothing to add.
       28
           During the original appeal, the organizational
Appellants acknowledged that their standing “depend[ed] 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)).) At that
time, they made the Court aware of at least one individual,
George Pershall, who was a 19-year-old Pennsylvania resident
and U.S. citizen, who belonged to both organizations, and who
remained subject to the UFA’s restrictions. The record was
supplemented to acknowledge him, but we are now told that he
turned 21 in December of 2024.               Consequently, the
organizational Appellants again moved to supplement the
record, this time to make us aware of Keegan Gaston, an 18-
year-old resident of Indiana County, Pennsylvania, who is a
member of both organizations and will remain subject to the
UFA. Although the Commissioner complained that the facts




                              37
       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).

       The Appellants have invoked the “capable of repetition
yet evading review” exception to the mootness rule, which
applies 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 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 bears the burden to
show 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)).

      This case presents such a circumstance because
Pennsylvania continues to declare emergencies, and it is
reasonably likely that other 18-to-20-year-olds, including
members of the organizational Appellants here, namely the


asserted about Mr. Gaston are untested by the adversarial
process, nothing has been provided calling those simple facts
into question. We therefore granted the motion.




                               38
Second Amendment Foundation and the Firearms Policy
Coalition, will be banned from carrying guns in public yet
again. The Appellants 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 last for only twenty-
one days, absent intervention from the General Assembly, it is
highly unlikely that there will be enough time to fully litigate
a claim. The “capable of repetition yet evading review”
exception to mootness thus applies.29

III.   CONCLUSION

       For the foregoing reasons, and having considered the
Supreme Court’s analysis in Rahimi, we maintain our decision
to reverse the District Court’s judgment 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.




       29
         In any event, as noted earlier (see supra n.28), we
have been informed of at least one individual who falls within
the appropriate age range and holds membership in the
organizational Appellants.




                              39
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 the Second Amendment’s test and historical
understanding,” see N.Y. State Pistol & Rifle Ass’n v. Bruen,

, 26 (2022), and “consistent with the principles that
underpin our [Nation’s] regulatory tradition,” see United States
v. Rahimi, 

 (2024) (citing Bruen, 597 U.S. at
26-31).

        In deciding whether a firearm regulation is
constitutional under the Second Amendment, a court must
decide whether the plain text of the Second Amendment covers
the individual challenger or conduct at issue, and if so, whether
the Government has presented sufficient historical analogues
to justify the restriction. See Bruen, 597 U.S. at 24.

       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, 597 U.S. at 9 (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,” id. at 10. Rahimi
more recently held that an “individual found by a court to pose
a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second
Amendment.” Rahimi, 

. 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, 597 U.S. at 20 (citing Heller, 554 U.S.
at 576−77, 578) (quotation marks omitted), and an
“examination of a variety of legal and other sources,” see id.
(quoting Heller, 

), leads to the conclusion that
the scope of the right, as understood during the Founding era,
excludes those under the age of 21. Thus, there is no need to
proceed to the second step of the Bruen analysis.
I.        The plain text of the Second Amendment does not
          cover 18-to-20-year-olds freely carrying guns in
          public during a state of emergency.

        Bruen and Rahimi affirm the historical-textualist
methodology established in Heller. Rahimi, 

(citing Bruen, 597 U.S. at 22). 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, 597 U.S. at 19−21; Heller,

. The Supreme Court has “clarified that
‘examination of a variety of legal and other sources to
determine the public understanding of a legal text in the period
after [the Second Amendment’s] enactment or ratification’ was
‘a critical tool of constitutional interpretation.’” Bruen, 597
U.S. at 20 (quoting 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, 597 U.S. at 34 (quoting
Heller, 554 U.S. at 634−35) (emph. added in Bruen). When
later history or understanding contradicts the original public
meaning of the text, the original understanding controls. Id. at
36.

       Under Bruen, “[w]hen the Second Amendment’s plain
text covers an individual’s conduct, the Constitution
presumptively protects that conduct.” Bruen, 597 U.S. at 17,
24 (emph. added). This presumption would apply only if the
plain text of the Second Amendment covers the Appellants’
conduct. However, because the text does not protect the
Appellants here, it doesn’t protect their conduct.

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

       While my colleagues in the Majority acknowledge that
“[f]rom before the founding and through Reconstruction, those
under the age of 21 were considered minors,” and my
colleagues conclude that “‘the people’ covers all adult
Americans,” see Majority Op. at II.B (emph. added), the
Majority also holds that “18-to-20-year-olds are . . .
                               2
presumptively among ‘the people’ to whom Second
Amendment rights extend,” 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.

        The age threshold was not an issue in Bruen. It was
“undisputed that [the petitioners] – two ordinary, law-abiding,
adult citizens – [were] part of ‘the people’ whom the Second
Amendment protects.” Bruen, 597 U.S. at 31−32 (emph.
added). The Supreme Court “therefore turn[ed] to whether the
plain text of the Second Amendment protects [the petitioners’]
proposed course of conduct.” Id. at 32 (emph. added).
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 Rahimi, or before this Court in
Range v. Attorney General, 

 (3d Cir. Dec.
23, 2024) (en banc).
       The Majority acknowledges 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 point, the Commissioner must overcome the strong
presumption that the Second Amendment applies to ‘all
Americans.’” 

 (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.
       Nevertheless, even if in the first step we assume a need
to overcome the “presumption that the Second Amendment
applies to ‘all Americans,’” see 

 at II.B (citing Heller, 

), there is ample evidence that the Founding-era
public would not have understood the 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 id.; see also 1 William Blackstone,
Commentaries *453; 4 James Kent, Commentaries on
American Law 266 (W.M. Hardcastle Brown ed. 1894) (1826);
1 John Bouvier, Institutes of American Law 87 (New ed., The
Lawbook Exchange, Ltd. 1999) (1851) (“The rule that a man
                               3
attains his majority at age twenty-one years accomplished, is
perhaps universal in the United States. . . . He is released from
all legal personal ties whatever, which he owed to others on
account of his infancy . . . .”). 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; see
also Bouvier, Institutes of American Law *81 (“It is [] of the
utmost importance, to his own interest, that man in his infancy,
and until he has attained a sufficient maturity to manage his
affairs, should be confided to the care, direction, and advice of
guardians capable of protecting him.”).
       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.”

       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
Saul Cornell, “Infants” 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.
Indeed, Justice Clarence Thomas acknowledged this founding-
era belief: “Children lacked reason and decisionmaking
ability. They ‘have not Judgment or Will of their own,’ John
Adams noted.” Brown v. Ent. Merchs. Ass'n, 

,
826−27 (2011) (Thomas, J., dissenting) (citing Letter from
John Adams to James Sullivan (May 26, 1776), in 4 Papers of
John Adams 210 (Robert Taylor ed. 1979)).
        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. Id. at *464. 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
                               5
abuse. 1 William Blackstone, Commentaries 168 n.9 (George
Chase ed.).2
       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, 

,
599−600, 605, 652. 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.”

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

                               6
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
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

       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
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
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. They also had no power to independently exercise
almost any rights of speech, association, conscience, marriage,
suffrage, and petition. Indeed, except in a few narrow
circumstances, infants could not seek redress in the courts
except through their parents. Stated bluntly, the same
generation from whom Appellants may have begged relief
would not have permitted them to bring their claim. Moreover,
in one historical context, history suggests that any right 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. 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.

    B.     Military statutes do not establish that minors
           had an independent right to carry a gun.

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

; see Majority
Op. at II.C n.22. But 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.


                               8
        Some states enacted statutes placing the burden of
arming infants on their guardians.5 Indeed, infants only
rendered militia service under the supervision of peace officers
who, like teachers, stood in loco parentis. See Nicholas J.
Johnson et al., Firearms Law and the Second Amendment 188,
243, 251 (2022). 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.
       Further analysis of founding-era military statutes
suggests that minors lacked the agency required to enlist, and
thus would lack any associated rights that come with the
enlistment. As of 1813, minors under 21 required parental
consent to enlist in the Army. Act of Jan. 20, 1813, ch. 13, § 5,

 (“[N]o person under the age of twenty-one years,
shall be enlisted by any officer, or held in the service of the
United States, without the consent, in writing, of his parent,
guardian, or master.”). Even before the 1813 federal law,
infants under the age of twenty-one could be discharged
against their will at their parents’ request. United States v.
Anderson, 

 (C.C.D. Tenn. 1812) (“[I]t is
obvious that Congress did not intend the minor should have

       5
        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
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
any discretion, either as to enlistment or discharge. The whole
matter is entirely a concern of the [guardian].”).
        All of this is superfluous in any event, as 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, 597 U.S. at 19.
        Heller explains at length that the militia and “the
people” are distinct. Heller, 554 U.S. at 650−51. 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. At the time of the
Founding, the age of militia service varied by state, with some
states requiring children as young as 15 to serve.6 And, there
appears to be no claim that 15-year-olds are part of “the
people” in 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




       6
         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. Id. at 242, 244. New Hampshire and Maine
had similar requirements. Id. at 247.
                                10
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.

II.    Because Appellants’ conduct is not covered by the
       Second Amendment, there is no need to proceed to
       the second step of the analysis.

       As mentioned above, under Bruen, “[w]hen the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” Bruen, 597
U.S. at 24. But, 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.’ Bruen, 597 U.S. at 24. If it
does, the government must demonstrate that the challenged
regulation is consistent with the principles behind our
Nation's historical tradition of firearm regulation.” See
Majority Op. at II.A (citing Rahimi, 602 U.S. at 691−92;
Bruen, 597 U.S. at 24) (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


       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.

                              11
“identify[ ] a ‘founding-era’ historical analogue to the modern
firearm regulation.” See id. (citing Bruen, 597 U.S. at 24−27).
        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, 597 U.S. at 17, and “consistent
with the principles that underpin our [Nation’s] regulatory
tradition,” see Rahimi, 

 (citing Bruen, 597 U.S.
at 26-31). 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 and Rahimi, 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 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, assuming
the 1791 meaning of the Second Amendment controls, it
appears that the challenged statutory scheme is not inconsistent


                               12
(and thus is consistent) with this Nation’s historical tradition
and the principles that underpin our regulatory 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, 597 U.S. at 31−32;
see also id. at 20 (quoting Heller, 

) (referring
to “the public understanding of a legal text” as “a critical tool
of constitutional interpretation”). Further, the challenged
statutory scheme here is “consistent with this Nation’s
historical tradition,” id. at 17, and “consistent with the
principles that underpin our regulatory tradition,” see Rahimi,

 (citing Bruen, 597 U.S. at 26-31). Because
Pennsylvania’s challenged statutory scheme does not violate
the Second Amendment of the Constitution, I respectfully
dissent.




                               13