United States v. Heriberto Carbajal-Flores (7th Cir. 2025)

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 24-1534 UNITED STATES OF AMERICA, Plaintiff-Appellant, v.

HERIBERTO CARBAJAL-FLORES, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cr-00613-1 — Sharon Johnson Coleman, Judge. ____________________

ARGUED JANUARY 22, 2025 — DECIDED JULY 16, 2025 ____________________

Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges. BRENNAN, Circuit Judge. Chicago Police arrested Heriberto Carbajal-Flores after he repeatedly ﬁred his pistol in a city street. A grand jury later indicted him for possessing a ﬁrearm as an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A). We must decide whether that federal law comports with the Sec- ond Amendment. 2 No. 24-1534

I Carbajal-Flores was born in Mexico. His mother brought him to the United States in 2002 when he was ten years old. Since then, he has resided in Chicago. Carbajal-Flores now claims the status of a lawful permanent resident. But at all times relevant to this appeal, he was an illegal alien. On the night of June 1, 2020, during a summer of unrest across the country, a police-observation camera captured video of Carbajal-Flores in Chicago’s Little Village neighbor- hood shooting a pistol seven times at a passing car. Surveil- lance showed that he later tried to shoot at another car, but his ﬁrearm jammed. Based on this footage, oﬃcers arrested him. Carbajal-Flores justiﬁes the shooting, explaining that he was protecting his community from a perceived threat. He claims to have merely ﬁred warning shots toward individuals he believed looted a neighborhood store. In the government’s view, Carbajal-Flores took to the streets amid the civil unrest and, without provocation, indiscriminately ﬁred his weapon at passing cars. Either way, Carbajal-Flores does not dispute that he pos- sessed a ﬁrearm that night. And, at the time, he was unlaw- fully present in the United States. A grand jury thus indicted him for violating 18 U.S.C. § 922(g)(5)(A), which forbids “an alien” who “is illegally or unlawfully in the United States” from possessing a ﬁrearm. Carbajal-Flores moved to dismiss the indictment, chal- lenging the constitutionality of § 922(g)(5)(A), as applied to him, on Second Amendment grounds. See FED. R. CRIM. P. 12(b)(3)(B). The district court denied the motion and cited United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), in No. 24-1534 3

which this court upheld the same statute in the face of a sim- ilar constitutional challenge. The Supreme Court then issued its landmark Second Amendment decision, New York State Riﬂe & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). There, the Court clariﬁed the proper framework courts must apply when analyzing Second Amendment challenges to ﬁrearm regulations. The test is “rooted in the Second Amendment’s text, as informed by his- tory.” Id. at 19. Following Bruen, Carbajal-Flores again moved to dismiss the indictment, arguing § 922(g)(5)(A) violated the Constitution under the text-and-history test. The district court was unpersuaded, concluding that the law is consistent with our Nation’s tradition of regulating ﬁrearms. This court then decided Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023). In that case, we oﬀered district courts and par- ties guidance on how to analyze challenges to § 922(g)(1)— which bars felons from possessing ﬁrearms—under Bruen’s framework. See id. at 1023–24. Carbajal-Flores, seeing an op- portunity, moved to dismiss the indictment once more and cited Atkinson for support. He urged the district court to hold § 922(g)(5)(A) unconstitutional both on its face and as applied to him. The district court declined Carbajal-Flores’s ﬁrst request and deemed the statute facially constitutional. Applying Bruen’s text-and-history framework, it concluded that the plain text of the Second Amendment presumptively secures for illegal aliens the right to possess ﬁrearms. But it held that the government rebutted the presumption by identifying a historical tradition of disarming “untrustworthy adherents to the law,” including British loyalists at the time of the 4 No. 24-1534

Founding. To the court, that tradition justiﬁed disarming ille- gal aliens today. Although the district court rejected Carbajal-Flores’s facial challenge, it found merit in his as-applied challenge. Laws disarming British loyalists did not apply to those willing to pledge their loyalty to the nascent American government. Once an individual disclaimed his loyalty to the British government, he was no longer considered dangerous or un- trustworthy and could therefore possess a ﬁrearm. From this historical exemption, the district court reasoned that Con- gress may disarm only untrustworthy or dangerous illegal al- iens. It then concluded that Carbajal-Flores is a trustworthy adherent to the law because, among other things, he is em- ployed and has no felony convictions. So, as applied to him, § 922(g)(5)(A) violated the Second Amendment. The government appeals, contesting the district court’s dismissal of the indictment. II The Second Amendment secures “the right of the people to keep and bear Arms.” U.S. CONST. amend II. In District of Columbia v. Heller, the Supreme Court held that the right be- longs to individuals, irrespective of their ties to the military. 554 U.S. 570, 595 (2008). And the Court has since conﬁrmed that the people’s freedom to carry arms is not a “second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). It ranks instead “among the fundamental rights necessary to our system of ordered liberty.” United States v. Rahimi, 602 U.S. 680, 690 (2024) (internal quotation omitted). No. 24-1534 5

The protections contained in the Second Amendment have their limits, though. Heller, 554 U.S. at 626. The government maintains some latitude to regulate who may possess ﬁre- arms, Rahimi, 602 U.S. at 702, what ﬁrearms they may possess, Heller, 554 U.S. at 625, and where they may possess them. Bruen, 597 U.S. at 30; see also Range v. Att’y Gen., 124 F.4th 218, 225 (3d Cir. 2024) (en banc) (listing the ways in which ﬁrearms are regulated). But like the constitutional right itself, the government’s power to regulate has its limits. The Supreme Court in Bruen set out the now-familiar test for evaluating whether a ﬁrearm restriction exceeds those limits. To begin, a court must inter- pret the Second Amendment’s plain text. When the text covers an individual and his conduct, “the Constitution pre- sumptively” oﬀers protection. Bruen, 597 U.S. at 24; United States v. Williams, 113 F.4th 637, 649–50 (6th Cir. 2024). The government may rebut that presumption, however, by persuading the court that the regulatory burden “is consistent with the Nation’s historical tradition of ﬁrearm reg- ulation.” Bruen, 597 U.S. at 24. This requires reasoning by analogy. A modern regulation with “relevantly similar” his- torical counterparts will survive scrutiny. Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29). The task does not demand identifying “historical twin[s]” or “dead ringer[s].” Bruen, 597 U.S. at 30 (emphasis omitted). The government must instead show only that its modern regulation conforms to “the prin- ciples that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. Courts rely on two metrics when assessing the strength of analogies. Bruen, 597 U.S. at 29. We compare “how” the challenged regulation burdens the right to bear arms to the way in which the historical precursors did. And 6 No. 24-1534

we consider whether the reasons for regulating are similar— that is, we ask “why” the government burdened the right now and then. The closer the ﬁt, the more likely the challenged law “fall[s] within a permissible category of regulations.” Rahimi, 602 U.S. at 692. A We begin with the Second Amendment’s text. Nobody dis- putes that Carbajal-Flores’s weapon, a .25 caliber semi-auto- matic pistol, is an arm. Heller, 554 U.S. at 581 (deﬁning “arms as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” (internal quotations omitted)). Rather, the parties argue about whether Carbajal-Flores, an illegal alien, is among “the people” that the Amendment protects. According to the government, he is not because that term covers only American citizens. The Supreme Court has not squarely addressed this tex- tual question. But it stated in Heller that “‘[t]he people’ seems to have been a term of art employed in select parts of the Con- stitution” to “refer[] to a class of persons who are part of a national community or who have otherwise developed suﬃ- cient connection with this country to be considered part of that community.” 554 U.S. at 580 (internal quotations omit- ted). The Court imported that deﬁnition from United States v. Verdugo-Urquidez, a Fourth Amendment decision. 494 U.S. 259, 265 (1990). To be sure, the Court cautioned that its “tex- tual exegesis” in Verdugo-Urquidez was “by no means conclusive.” Id. Nonetheless, this court relied in part on that deﬁnition in Meza-Rodriguez to conclude that some illegal al- iens are among “the people” presumptively entitled to Sec- ond Amendment protections. 798 F.3d at 670–72; see also United States v. Jimenez-Shilon, 34 F.4th 1042, 1044–45 (11th Cir. No. 24-1534 7

2022) (collecting Founding-era dictionary deﬁnitions that pro- vide some support for the Verdugo-Urquidez deﬁnition). This court’s holding in Meza-Rodriguez positions us as an outlier among our fellow circuits. Some courts of appeals have concluded that illegal aliens are categorically excluded from “the people.” United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam); see also United States v. Car- pio-Leon, 701 F.3d 974, 979 (4th Cir. 2012) (holding “that the Second Amendment right to bear arms does not extend to il- legal aliens”). Still others have assumed without deciding that illegal aliens fall within the scope of the Second Amendment’s protections. United States v. Perez, 6 F.4th 448, 453 (2d Cir. 2021); United States v. Torres, 911 F.3d 1253, 1261 (9th Cir. 2019); United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012); Jimenez-Shilon, 34 F.4th at 1045–46. Meza-Rodriguez predates the Supreme Court’s decisions in Bruen and Rahimi, which are part of a sea change in Second Amendment jurisprudence. Portions of this court’s decision were no doubt abrogated by the intervening precedent—spe- ciﬁcally, those portions in which we engaged in an interest balancing inquiry to uphold § 922(g)(5)(A), as opposed to re- lying solely on text and history. Meza-Rodriguez, 798 F.3d at 672–73. But the Supreme Court in Bruen said “nothing about who may lawfully possess a ﬁrearm.” 597 U.S. at 72 (Alito, J., concurring). And in Rahimi it all but passed over the threshold textual inquiry—perhaps because nobody really disputed that the Second Amendment presumptively covered the indi- vidual and conduct at issue there. See 602 U.S. at 751–52 (Thomas, J., dissenting). So, no intervening Supreme Court precedent requires us to reassess here whether some illegal 8 No. 24-1534

aliens are among “the people.” See United States v. Medina- Cantu, 113 F.4th 537, 539 (5th Cir. 2024) (per curiam) (conclud- ing that neither Bruen nor Rahimi “unequivocally abrogate[d]” that court’s earlier holding that illegal aliens were not among “the people”), cert. denied, 145 S. Ct. 1318 (2025); United States v. Sitladeen, 64 F.4th 978, 985 (8th Cir. 2023) (same but only post-Bruen). In any event, doing so would not alter the outcome here. Even if the plain text of the Second Amendment presump- tively protects Carbajal-Flores because he falls within “the people,” a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign. We turn to that issue now. B Whether § 922(g)(5)(A) is consistent with the Second Amendment depends on whether the law adheres to “our regulatory tradition.” Rahimi, 602 U.S. at 692. Courts must proceed with caution when examining historical evidence, as “not all history is created equal.” Bruen, 597 U.S. at 34. The strongest evidence that a modern federal law accords with the historical understanding of permissible ﬁrearm regulations comes from around the time of the Second Amendment’s adoption in 1791. Id. That said, the Amend- ment “codiﬁed a pre-existing right” to bear arms, so the Eng- lish common-law tradition informs our analysis. Heller, 554 U.S. at 592 (emphasis omitted); see also Rahimi, 602 U.S. at 693– 94 (examining common-law sources); Bruen, 597 U.S. at 35 (cautioning that “[a] long, unbroken line of common-law precedent … is far more likely to be part of our law than a short-lived, 14th-century English practice”). Post-ratiﬁcation No. 24-1534 9

history may help illuminate the scope of the government’s au- thority to regulate ﬁrearms as well. Heller, 554 U.S. at 605. The most compelling evidence, though, will be that of a consistent regulatory practice from ratiﬁcation onward. Bruen, 597 U.S. at 35–36; see also Vidal v. Elster, 602 U.S. 286, 323 (2024) (Barrett, J., concurring in part) (“A course of deliberate practice might liquidate ambiguous constitutional provisions.”); William Baude, Constitutional Liquidation, 71 STAN. L. REV. 1, 16–21 (2019) (same). We therefore consider whether common-law, Founding- era, and, to a lesser extent, post-ratiﬁcation sources support § 922(g)(5)(A)’s ban on illegal aliens possessing ﬁrearms. 1 In the English tradition, one’s alien status carried with it a smaller basket of rights. Blackstone, “who exerted considera- ble inﬂuence on the Founders,” Reid v. Covert, 354 U.S. 1, 26 (1957) (plurality opinion), distinguished between “aliens and natural-born subjects.” 1 WILLIAM BLACKSTONE, COMMENTARIES *354. Natural-born subjects, as the label im- plies, were those “born within the dominions of the crown of England” and thus had an allegiance to the sovereign as a con- sequence of birth. Id. A natural-born subject’s allegiance bound him to the King, and he received the sovereign’s pro- tection in exchange. Id. at *354, *359. Importantly, this status also guaranteed “a great variety of rights.” Id. at *359; see also Jimenez-Shilon, 34 F.4th at 1047 (discussing the same). An alien, on the other hand, was born outside the domin- ions of the Crown. His status aﬀorded him fewer rights than those enjoyed by natural-born subjects. BLACKSTONE, supra, at *359. And an alien’s rights could be conditioned on his 10 No. 24-1534

“allegiance to the laws and government.” Patrick J. Charles, Representation Without Documentation?: Unlawfully Present Al- iens, Apportionment, the Doctrine of Allegiance, and the Law, 25 BYU J. PUB. L. 35, 78 (2011). Early international law conﬁrms that sovereigns wielded authority to limit beneﬁts conferred upon foreigners. 1 M. DE VATTEL, THE LAW OF NATIONS § 213, at 102 (1797); see also Jimenez-Shilon, 34 F.4th at 1047 (discuss- ing the same). Aliens’ rights were accordingly circumscribed in im- portant ways at English common law. They could not, for ex- ample, hold land. See, e.g., M’Ilvaine v. Coxe’s Lessee, 6 U.S. (2 Cranch) 280, 297 (1805) (explaining “[t]he rule of the common law [was] that all persons may hold lands, except aliens” (em- phasis omitted)). This prohibition on land ownership was indeed rooted in the doctrine of allegiance. As Blackstone ex- plained, “[i]f an alien could acquire a permanent property in lands,” he would “owe an allegiance, equally permanent with that property, to the king of England.” BLACKSTONE, supra, at *360. But such an allegiance “would probably be inconsistent with that[] which he owe[d] to his own” sovereign. Id. Relevant here, land and gun ownership were historically linked. “[T]he right to own guns in eighteenth-century Eng- land was statutorily restricted to the landed gentry.” Jimenez- Shilon, 34 F.4th at 1046 (citing PATRICK J. CHARLES, ARMED IN AMERICA 51, 58 (2018)). This provides early evidence, then, that concerns over an alien’s lack of allegiance to the Crown, which justiﬁed barring him from holding land, also war- ranted barring him from keeping arms. See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 217 n.54 (1983) (discussing No. 24-1534 11

the common-law tradition of disarming persons based on “al- ienage or untrustworthiness”). But an alien could overcome these impediments through naturalization. That process oﬀered aliens a path to securing largely the same basket of rights aﬀorded to natural-born sub- jects. See BLACKSTONE, supra, at *362; VATTEL, supra, § 214, at 102. Naturalization required an alien to “take[] the oaths of allegiance and supremacy in the presence of the parliament.” BLACKSTONE, supra, at *362 (footnote omitted). Once he pledged his allegiance to the sovereign, he would be placed in almost “exactly the same state as if he had been born in the” dominions of the Crown. Id.; see also Patrick J. Charles, The Ple- nary Power Doctrine and the Constitutionality of Ideological Ex- clusions: An Historical Perspective, 15 TEX. REV. L. & POL. 61, 73 (2010) (“The entire basis of England’s early immigration and naturalization laws were intertwined with the doctrine of al- legiance.”). So, like a natural-born subject, the naturalized al- ien could take an interest in land. James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 VA. L. REV. 359, 378–79 (2010). And with landownership came the right to keep arms. See, e.g., Cross-Bows, A NEW LAW- DICTIONARY (Giles Jacob ed., 8th ed. 1762) (“None shall shoot in, or keep any … Hand gun … but those who have Lands of” a certain value.). The disarmament of Catholics conﬁrms that the English tradition linked the right to bear arms with one’s allegiance to the sovereign. The Second Amendment’s predecessor, housed in the English Bill of Rights, guaranteed “the subjects which are Protestants” the right to “have arms for their defence, suit- able to their conditions, and as allowed by law.” 1 W. & M. c. 12 No. 24-1534

2, § 7 (1689). Because the right was limited to Protestants, Par- liament was free to bar English Catholics from possessing ﬁre- arms. And it did. Id. c. 15, § 3 (disarming “Papist[s] or reputed Papist[s]”); see also Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting) (discussing the same). Catholics were perceived as resident enemy aliens because they owed an allegiance to a foreign sovereign, the Pope. C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 HARV. J.L. & PUB. POL’Y 695, 722–23 (2009). That “they acknowledge[d] a foreign power, superior to the sovereignty of the kingdom,” meant Catholics were not entitled to bear arms as “good subjects” were. Id. at 722 (internal quotation omitted). But that restriction could be removed by pledging allegiance to the Crown. After swearing the requisite oath, a Catholic could be trusted to possess ﬁrearms. Id. at 723. All told, the English tradition establishes a historical pat- tern of disarming persons who lacked allegiance to the sover- eign. Importantly, though, an individual could overcome that limitation by swearing an oath to the sovereign. 2 The English tradition continued through the colonial and Founding eras. On this side of the Atlantic, too, “it was well understood that the right to bear arms ‘did not extend to all New World residents.’” Jimenez-Shilon, 34 F.4th at 1047 (quot- ing JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 140 (1994)). To begin, bans and other constraints on slaves and Native Americans possessing ﬁrearms were, regrettably, common- place. See, e.g., id.; Joseph G.S. Greenlee, The Historical Justiﬁ- cation for Prohibiting Dangerous Persons from Possessing Arms, No. 24-1534 13

20 WYO. L. REV. 249, 250 (2020). The colonists did not consider either group to be citizens that possessed rights commensu- rate with English subjects. Perez, 6 F.4th at 462 (Menashi, J., concurring in the judgment); MALCOM, supra, at 140–41. So, like aliens in England, slaves and Native Americans faced gun restrictions “‘on the ground of alienage’ or lack of allegiance to the” English sovereign. Jimenez-Shilon, 34 F.4th at 1047 (cit- ing Kates, supra, at 217 n.54). As an example, the New York Colony made it unlawful for “Indian[s]” and “Slave[s] to have or use any Gun or Pistoll.” An Act for Preventing Suppressing and Punishing the Con- spiracy and Insurrection of Negroes and Other Slaves (Dec. 10, 1712), reprinted in 1 THE COLONIAL LAWS OF NEW YORK 761, 766–67 (1894). And the Colony of Connecticut banned the sale of ﬁrearms and other “Instrument[s] of warre” “to the Inde- ans.” An Act of October 25, 1644, reprinted in THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 111, 113–14 (J. Hammond Trumbull ed., 1850). So did the Colony of Virginia. An Act of March 2, 1642, reprinted in 1 A COLLECTION OF ALL THE LAWS OF VIRGINIA 238, 255 (William Waller Hening ed., 1823); see also United States v. Duarte, 137 F.4th 743, 765 nn.3–4 (9th Cir. 2025) (en banc) (Collins, J., concurring in the judg- ment) (collecting additional colonial statutes). These discriminatory laws would unquestionably fail to overcome constitutional scrutiny today. See Kanter, 919 F.3d at 458 n.7 (Barrett, J., dissenting). But they nonetheless illuminate a his- torical throughline of disarming people based on their alle- giances—or lack thereof. Disarmament was not, however, strictly tied to race. The colonies also prohibited white men who refused to swear an oath to the English sovereign from possessing ﬁrearms. 14 No. 24-1534

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Sec- ond Amendment, 25 L. & HIST. REV. 139, 158 (2007); ADAM WINKLER, GUN FIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 116 (2011). Further in line with the English tradition, some colonies restricted Catholics’ ability to keep arms. An Act for Disarm- ing Papists, and Reputed Papists, Refusing to Take the Oaths to the Government (Mar. 1756), reprinted in 7 A COLLECTION OF ALL THE LAWS OF VIRGINIA 35, 35–39 (William Waller Hen- ing ed., 1820); see also WINKLER, supra, at 116 (citing a similar practice in Maryland). Here again, the prohibitions were premised on fears a person of that faith owed allegiance to the Pope. But “those Catholics willing to swear undivided alle- giance to the sovereign enjoyed a right to keep arms” like any other English subject. Churchill, supra, at 157. Concerns over one’s loyalty to the Crown and the polity thus continued to drive ﬁrearm regulations. See Clayton E. Cramer, Colonial Firearm Regulation, 16 J. ON FIREARMS & PUB. POL’Y 1, 21 (2004); see also Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (explaining that the “conﬁscation of guns” helped “deal with the potential threat coming from armed citizens who remained loyal to another sovereign” (internal quotation omitted)). Still, relief was often possible as long as a person precluded from keeping arms was prepared to pledge an oath to the King. British control over the colonies eventually gave way to revolutionary forces. Yet disarming people based on the doc- trine of allegiance endured. Revolutionaries demanded that anyone who did not support the rebellion surrender his weapons. WINKLER, supra, at 116. Indeed, the Continental No. 24-1534 15

Congress recommended that each colonial legislature disarm all those “within their respective colonies, who are notori- ously disaﬀected to the cause of America.” 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 205 (Worthington Chauncey Ford ed., 1906). And the colonies quickly acted on that recommendation. See Churchill, supra, at 159 n.49 (collect- ing resolutions). But consistent with earlier practices, those willing to pledge allegiance to the Revolution could retain their arms. WINKLER, supra, at 116. In time, the Founders declared total independence from the Crown. At that point, “the shift of allegiance was com- plete,” and the newly minted states began adopting the em- bedded practice of conditioning the right to bear arms on one’s loyalty to the sovereign—now, each respective state. Churchill, supra, at 159; see also Perez, 6 F.4th at 462 (Menashi, J., concurring in the judgment) (“Those refusing to swear al- legiance to their states … lacked the right to keep and bear arms.”). The Commonwealth of Pennsylvania, for example, passed the Test Act while the ink was still drying on the Dec- laration of Independence. That law “disarmed” any man over the age of eighteen who would not swear “allegiance to the Common-Wealth of Pennsylvania.” An Act, Obliging the Male White Inhabitants of This State to Give Assurance of Al- legiance to the Same (June 13, 1777), reprinted in THE ACTS OF THE GENERAL ASSEMBLY OF THE COMMON-WEALTH OF PENNSYLVANIA 36, 36–37 (1779). North Carolina passed a sim- ilar law. An Act to Amend an Act For Declaring What Crimes and Practices Against the State Shall Be Treason, and What Shall Be Misprision of Treason, and Providing Punishments Adequate to Crimes of Both Classes, and for Preventing the Dangers Which May Arise from Persons Disaﬀected to the State (1777), reprinted in THE ACTS OF ASSEMBLY OF THE STATE 16 No. 24-1534

OF NORTH CAROLINA 41, 43 (1778). So too did New Jersey. An Act for Constituting a Council of Safety (Sep. 20, 1777), re- printed in ACTS OF THE GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY 84, 90 (1777). In fact, shortly after the Nation’s birth, “[a]t least six states enacted such laws” disarming non- associators. Duarte, 137 F.4th at 794 & n.10 (VanDyke, J., concurring in the judgment in part and dissenting in part) (collecting additional laws). And they did so based on the same underlying principle of allegiance. Churchill, supra, at 159–60. The unfortunate practice of disarming slaves and Native Americans survived the Revolutionary War, conﬁrming the Founders adhered to the tradition of barring groups deemed outside the polity from keeping arms. Kanter, 919 F.3d at 458 (Barrett, J., dissenting). But again, disarmament was not solely based on race. Aliens of all backgrounds, despite being free to “exercise sundry other civil rights” at the time, could not ex- ercise “the right to bear arms.” AKHIL AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 48 (1998). Some of the ﬁrst state constitutions, moreover, extended arms-bearing protections only to “citizens.” See, e.g., PA. CONST. of 1790, art. IX, § 21; KY. CONST. of 1792, art. XII, § 23; Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208–09 (2006). From the colonies to—most critically—the early Republic, governments consistently conditioned the ability to possess ﬁrearms on one’s loyalty to the sovereign. People outside the polity were regularly disarmed unless and until they swore an oath of allegiance. This provides strong historical evidence that the Founders would have considered such regulations compatible with the Second Amendment. No. 24-1534 17

3 Post-ratiﬁcation understandings on the scope of the right to bear arms conﬁrm the same. See Heller, 554 U.S. at 605 (an- alyzing 19th-century sources). Our discussion here is brief, though, as courts must beware of “giving postenactment his- tory more weight than it can rightly bear.” Bruen, 597 U.S. at 35. Tellingly, early-19th-century American legal scholarship described the relationship between one’s alien status and his accompanying rights as consistent with the common-law tradition in important ways. St. George Tucker explained that aliens in the United States were either aliens by birth or by election. 2 WILLIAM BLACKSTONE & ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA app. 101 (1803). “Aliens by birth” included “all per- sons born out of the dominions of the United States, since the fourth day of July, 1776.” Id. “Aliens by election,” on the other hand, included “naturalized subjects of the crown of Great- Britain” that had not “since become actual citizens of the United States.” Id. at app. 102. Relevant here, aliens by birth were “generally subject to all the incapacities to which aliens [were] subject by the rules of the common law.” Id. As explained already, that included the incapacity to keep and bear arms. But the Constitution vested Congress with authority to create uniform naturalization rules. U.S. CONST. art. I, § 8, cl. 4. So, it was understood that an alien could secure the rights of citizenship—including the right to bear arms—after making “the requisite declarations of his intention to become a citizen, and to renounce for ever 18 No. 24-1534

all allegiance and ﬁdelity to any foreign prince[] or state.” BLACKSTONE & TUCKER, supra, at app. 100; see also Bruen, 597 U.S. at 70 (explaining the Second Amendment protects “all Americans” (internal quotation omitted)). Other notable thinkers at the time spoke of the right to bear arms as belonging to citizens. Jimenez-Shilon, 34 F.4th at 1048 (citing 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1890, at 746 (1833)). Consistent with that view, additional states adopted constitu- tions well into the 19th century that protected the right only for those people. See, e.g., MISS. CONST. of 1817, art. I, § 23; TENN. CONST. of 1870, art. I, § 26; Volokh, supra, at 209–13; see also Heller, 554 U.S. at 600–01 (accounting for post-ratiﬁcation state constitutions). All this provides additional evidence that a long tradition existed of linking the right to bear arms with one’s allegiance to the sovereign. And the tradition extended to the period fol- lowing the Second Amendment’s adoption. See Bruen, 597 U.S. at 35–36 (explaining post-ratiﬁcation practices have more persuasive value when they are consistent with longstanding practices). 4 That brings us back to the criminal law here, 18 U.S.C. § 922(g)(5)(A), and the question of whether it conforms to our Nation’s regulatory tradition. Congress, in passing the law, decided to prohibit any “alien” who “is illegally or unlawfully in the United States” from possessing a ﬁrearm. Id. We con- clude that the provision sits comfortably alongside the line of ﬁrearm regulations that came before it. To see how, consider the two metrics courts use for assessing “whether the No. 24-1534 19

challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. We begin with “why” aliens have been precluded from possessing ﬁrearms then and now. As explained, govern- ments have consistently conditioned the right to bear arms on one’s allegiance to the sovereign. Allegiance serves as a mark of trustworthiness. See Kanter, 919 F.3d at 457–58 (Barrett, J., dissenting). And it shows one’s willingness to accede to the terms of social order in exchange for the full beneﬁts of citi- zenship. Aliens, as a matter of their status, have not yet af- ﬁrmed their allegiance to the sovereign. That has uniformly served as the basis for disarming them. It serves as the basis for § 922(g)(5)(A)’s prohibition, too. Compare also “how” governments have traditionally reg- ulated ﬁrearms to how Congress has chosen to do so today. From the common law onward, aliens have historically been disarmed unless and until they swore an oath of allegiance to the sovereign. The way § 922(g)(5)(A) operates maps onto that tradition. The law precludes only illegal aliens—those who have necessarily forgone the naturalization process—from possessing ﬁrearms. But an alien who obtains citizenship by taking the oath of renunciation and allegiance, 8 U.S.C. § 1448, is entitled to keep and bear arms like every other law-abiding American. In other words, the same relief—pledging alle- giance—exists today that has existed throughout history. Section 922(g)(5)(A) is thus suﬃciently analogous to many earlier ﬁrearm regulations. Because the law “comport[s] with the principles underlying the Second Amendment,” we hold that it overcomes Carbajal-Flores’s facial challenge. Rahimi, 602 U.S. at 692–93 (explaining such a challenge “requires a 20 No. 24-1534

defendant to establish that no set of circumstances exists un- der which the Act would be valid” (internal quotation omit- ted)). III Carbajal-Flores argues that even if § 922(g)(5)(A) is facially constitutional, as we have now concluded, the law still oper- ates in an unconstitutional manner as applied to him. In his view, our Nation’s regulatory tradition supports disarming only dangerous and untrustworthy aliens. And because he is neither, he should be able to possess a pistol notwithstanding the general prohibition on aliens keeping arms. Recall that the district court agreed with Carbajal-Flores and dismissed the indictment. After Bruen, our circuit has not yet decided whether a de- fendant can lodge an as-applied challenge to any subsection of § 922(g). In United States v. Gay, we “assume[d] for the sake of argument that there [was] some room for as-applied chal- lenges” to § 922(g)(1)’s ban on felons possessing ﬁrearms. 98 F.4th 843, 846 (7th Cir. 2024). And other courts have enter- tained such challenges. See, e.g., Range, 124 F.4th at 224. Several circuits have upheld § 922(g)(1) on the ground that a long tradition exists of “disarm[ing] groups … deemed to be dangerous.” See, e.g., Williams, 113 F.4th at 657. But because not all felons are inherently dangerous, some courts have left open the possibility of allowing non-violent felons to chal- lenge the constitutionality of that provision as applied to them. Range, 124 F.4th at 232 (holding § 922(g)(1) unconstitu- tional as applied to food-stamp fraudster); see also Duarte, 137 F.4th at 748 (collecting cases); but see id. at 747–48 (surveying circuits that have rejected as-applied challenges). In other No. 24-1534 21

words, the class of persons disarmed under § 922(g)(1) is po- tentially overinclusive: The historical justiﬁcation for disarm- ing some felons may not support disarming all felons. Section 922(g)(5)(A) does not present the same potential overinclusion problem. As discussed, our Nation’s regulatory tradition supports disarming aliens who have not sworn an oath of allegiance to the sovereign. The challenged statute ex- tends no further than disarming people “illegally or unlaw- fully in the United States.” 18 U.S.C. § 922(g)(5)(A). That is, people who have not naturalized and taken the oath of renun- ciation and allegiance. See 8 U.S.C. § 1448. We express no views on whether criminal defendants may lodge as-applied challenges to other provisions contained in § 922(g)’s various subsections. But district courts need not conduct individualized assessments of illegal aliens for pur- poses of § 922(g)(5)(A). The district court here accordingly erred in holding the statute unconstitutional as applied to Carbajal-Flores. †

† Carbajal-Flores alternatively requests that we summarily affirm dis-

missal of the indictment based on the government’s alleged failures to comply with Circuit Rule 30, which sets out the required contents of the appendix to an appellant’s brief. See United States v. Matthews, 140 F.4th 893, 899 (7th Cir. 2025). He first faults the government for failing to include two of the district court’s orders denying his earlier motions to dismiss the indictment. See id. (“Circuit Rule 30(b)(1) requires appellants to include in the appendices to their briefs copies of all opinions, orders, or oral rulings in the case that address the issues sought to be raised.” (internal quotation omitted)). But the government included in its appendix the one order on which it seeks reversal. So, although it may have been helpful for the government to in- clude the other orders, it can hardly be said to have “blatant[ly] and un- justifi[ably]” disregarded Circuit Rule 30. Jaworski v. Master Hand 22 No. 24-1534

* * * The Second Amendment secures for the people a funda- mental right. The government thus bears the substantial bur- den of proving that a law limiting the right ﬁts within our Nation’s regulatory tradition. That burden has been carried here. The district court’s decision to dismiss the indictment against Carbajal-Flores is REVERSED and the case is REMANDED for proceedings consistent with this opinion.

Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018). Summary affirmance is therefore inappropriate. Carbajal-Flores also faults the government for including in its appen- dix historical sources that it did not submit to the district court. But the government did provide that court with many of the same sources it included in its appendix. To the extent it offered additional materials on appeal, their inclusion did not alter the outcome of this case. Summary affirmance therefore remains inappropriate. Carbajal-Flores’s additional arguments pertaining to Circuit Rule 30 do not merit discussion.