UNITED STATES COURT OF APPEALS
                       FOR THE EIGHTH CIRCUIT

                                     No: 22-2870

                              United States of America

                                               Appellee

                                          v.

                                    Edell Jackson

                                               Appellant

______________________________________________________________________________

           Appeal from U.S. District Court for the District of Minnesota
                            (0:21-cr-00051-DWF-1)
______________________________________________________________________________

ORDER

       The petition for en banc rehearing is denied. The petition for panel rehearing
is also denied. Judges Erickson, Grasz, Stras, and Kobes would grant the petition for
rehearing en banc.

COLLOTON, Circuit Judge, concurring in the denial of rehearing.

       The dissent from denial of rehearing en banc asserts as its central premise that
the panel opinion supposedly failed to grasp a basic point of New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 

 (2022), that the government bears the
burden to show that the felon-in-possession statute is constitutional. (The petition
for rehearing properly does not make this argument.) To the contrary, the panel was
well aware of Bruen, and concluded that the historical evidence shows that the
statute “is consistent with the Nation’s historical tradition of firearm regulation.” 69
F.4th at 502 (quoting Bruen, 

). The dissent misconstrues a trailing
footnote whose only purpose was to note that it was unnecessary to address the
defendant’s particular conduct at the time he possessed a firearm. There will be
debates about the historical evidence, but the panel opinion faithfully applied the
Bruen framework and the Supreme Court’s assurance that nothing in its originalist
opinion recognizing an individual right under the Second Amendment “should be
taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons.” District of Columbia v. Heller, 

 (2008); accord McDonald
v. City of Chicago, 

 (2010) (plurality opinion) (“We repeat those
assurances here.”).

STRAS, Circuit Judge, with whom ERICKSON, GRASZ, and KOBES, Circuit
Judges, join, dissenting from the denial of rehearing en banc.

       By cutting off as-applied challenges to the federal felon-in-possession statute,
see 

(g)(1), Jackson and Cunningham give “second-class” treatment
to the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 

 (2022) (quoting McDonald v. City of Chicago, 

 (2010)
(plurality opinion)). Even worse, they create a group of second-class citizens: felons
who, for the rest of their lives, cannot touch a firearm, no matter the crime they
committed or how long ago it happened. See United States v. Cunningham, 

 (8th Cir. 2023); United States v. Jackson, 

, 501–02 (8th Cir.
2023). I dissent from the decision to deny rehearing en banc.

                                          I.

        Jackson, the first of the two opinions, fails to get the basics right. The
Supreme Court told us last year that the burden is on “the government [to]
demonstrate that the regulation”—here, the ban on possessing a firearm as a felon—
“is consistent with this Nation’s historical tradition of firearms regulation.” Bruen,

 (emphasis added). Yet Jackson does not put the government to
its task of establishing an “historical analogue.” 

 (emphasis omitted); see
Jackson, 

.

                                          -2-
       Worse yet, Jackson actually flips the burden. It says that the defendant, not
the government, must “show . . . that his prior felony conviction is insufficient to
justify the” stripping of Second Amendment rights. Jackson, 

 n.4
(citation omitted). How can that be? Apparently one of our pre-Bruen cases says
so. See United States v. Adams, 

 (8th Cir. 2019). It should go
without saying that we have to follow what the Supreme Court says, even if we said
something different before.

       Other courts have done so. See Range v. Att’y Gen. United States, 

 (3d Cir. 2023) (en banc) (holding that “the Government did not carry its
burden” in a similar case (emphasis added)); 

 (Ambro, J., concurring)
(recognizing “the Government’s failure to carry its burden” (emphasis added)); 

 (Schwartz, J., dissenting) (disagreeing with the majority because “the
Government has presented sufficient historical analogues” (emphasis added));
United States v. Daniels, — F.4th —, 

, at *5 (5th Cir. Aug. 9,
2023) (“[T]he government has the burden to find and explicate the historical sources
that support . . . constitutionality . . . .” (emphasis added)); Atkinson v. Garland, 

 (7th Cir. 2023) (“[T]he government bear[s] the burden of
‘affirmatively prov[ing] that its firearms regulation is part of the historical tradition
that delimits the outer bounds of the right to keep and bear arms.’” (emphasis added)
(quoting Bruen, 141 S. Ct. at 2127)); see also United States v. Rahimi, 

 (5th Cir. 2023), cert. granted, 

 (2023). Correcting a basic and
fundamental error like this one was reason enough to grant rehearing.

       The rest of Jackson shows why. From all appearances, it took the burden
seriously, despite getting it backwards. Rather than conduct a probing examination
of “historical[ly] analog[ous]” laws, Bruen, 

 (emphasis omitted),
it identified a few examples from a now-vacated Third Circuit decision and
concluded that felons seem enough like Native Americans, slaves, Catholics, and
Loyalists for Congress to disarm them too. See Jackson, 69 F.4th at 502–04
(“[H]istory supports the authority of Congress to prohibit possession of firearms by
persons who have demonstrated disrespect for legal norms of society.” (relying on

                                           -3-
Range v. Att’y Gen. United States, 

 (3d Cir. 2022), vacated and reheard
en banc, 

 (3d Cir. 2023)). It never really tells us why, perhaps because
it thought it was the defendant’s job to connect the dots.

       Consider what flipping the burden does. When no one makes much of an
effort to present historical evidence about a law’s constitutionality, the government
will always win. All sorts of firearms regulations will now be presumptively
constitutional, with the burden falling on the regulated, not the regulator, to establish
they are not. This error will affect our consideration of all types of laws, from age
restrictions, see Worth v. Harrington, — F.Supp.3d —, 

, at *1 (D.
Minn. March 31, 2023), and magazine-capacity limits, see Or. Firearms Fed’n v.
Kotek Or. All. for Gun Safety, — F.Supp.3d —, 

, at *1 (D. Or.
July 14, 2023), to permit requirements, see 

 It is, in other words, “exceptionally
importan[t]” to fix. Fed. R. App. P. 35(a)(2).

                                           II.

         Reversing the burden also lets Jackson avoid the sort of probing historical
analysis Bruen requires. In particular, it makes no effort to draw the necessary
connections between colonial-era laws and the felon-in-possession statute. Why
were these particular groups targeted? What, if anything, does their disarmament
have to do with felons? What lessons can we draw from the history? It is not as
simple as saying some groups lost their arms, so felons should lose them too. After
all, it goes without saying that we would not allow Congress to indiscriminately strip
Catholics and Native Americans, two groups targeted by colonial-era disarmament
laws, of their guns today.


       There is, unsurprisingly, more to the story. Early laws were about lessening
the danger posed by armed rebellion or insurrection. See Kanter v. Barr, 

 (7th Cir. 2019) (Barrett, J., dissenting); Adam Winkler, Gunfight 115–16
(2011). Slave revolts, for example, were a constant threat in the decades leading up
to the Revolution. See Herbert Aptheker, American Negro Slave Revolts 18–19 (5th
                                           -4-
ed. 1987) (citing the “nearly unanimous agreement” among scholars that there was
“widespread fear of servile rebellion” throughout the 18th century (footnote
omitted)); 

 at 162–208 (describing attempted slave revolts from 1672 through
1791). Violent confrontations with Native Americans were also a concern,
especially in frontier states like Pennsylvania and Virginia. See Kanter, 

 (Barrett, J., dissenting) (“Native Americans . . . were thought to pose more
immediate threats to public safety and stability and were disarmed as a matter of
course.”). Disarmament laws targeted these two groups, in other words, because
they were dangerous. See Atkinson, 

 n.2 (Wood, J., dissenting)
(cataloging laws disarming Native Americans).

       The same goes for Catholics. Catholic men could possess firearms for most
of the colonial era, yet Pennsylvania, Maryland, and Virginia took them away for
about a decade. See Act of January 1757, reprinted in 5 The Statutes at Large of
Pennsylvania from 1682 to 1801, at 608–09 (James T. Mitchell & Henry Flanders
eds., n.p., WM Stanley Ray 1898); Act of May 1756, reprinted in 52 Archives of
Maryland: Proceedings and Acts of the General Assembly of Maryland, 1755-1756
(24), at 454 (J. Hall Pleasants ed., 1935); Act of March 1756, reprinted in 7 The
Statutes at Large; Being a Collection of All the Laws of Virginia From the First
Session of the Legislature in the Year 1619, at 35–39 (William Waller Hening ed.,
Richmond, Franklin Press 1820). All-important context makes clear that the goal
was, once again, to prevent armed “rebellion” and “social upheaval[].” Folajtar v.
Att’y Gen. of the United States, 

 (3d Cir. 2020) (Bibas, J.,
dissenting) (citation omitted); see NRA v. Bureau of Alcohol, Tobacco, Firearms,
and Explosives, 

 (5th Cir. 2012) (observing that the colonies
implemented these restrictions for “public[-]safety reasons”); Daniels, 

, at *11, 13.

      Why were Catholics a concern? The answer is the French and Indian War,
which took place from 1754 to 1763. It was an extension of the Seven Years War
between Protestant England and Catholic France. See Nicholas J. Johnson, et al.,
Firearms Law and the Second Amendment: Regulation, Rights, and Policy 115–16

                                         -5-
(1st ed. 2012). Protestant colonial governments feared that loyalty to the Pope would
cause Catholics to take up arms for France. As one prominent Presbyterian pastor
put it, the colonies would suffer from “the horrid arts of . . . popish torture” if the
Catholics kept their arms. Samuel Davies, Religion and Patriotism the Constituents
of a Good Soldier: A Sermon Preached to Captain Overton’s Independent Company
of Volunteers, Raised in Hanover County, Virginia, August 17, 1755, at 2
(Philadelphia, James Chattin 1755).

       The fear was nothing new. Following the toppling of a Catholic monarch in
England, King James II, many feared that Catholics might try to rebel against
William and Mary, the country’s new Protestant monarchs. See An Act for the
Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. &
M., Sess. 1, ch. 15 (Eng. 1688); see also Johnson, et al., supra, at 90–91 (explaining
the long history of Protestant and Catholic discontent in England). These suspicions
materialized in repeated and often bloody Jacobite rebellions against the English
Crown. See Geoffrey Plank, Rebellion and Savagery: The Jacobite Rising of 1745
and the British Empire 4–5 (2006). The disarming of Catholics in England and
Ireland became routine throughout the 18th century because of the risk of guerrilla
violence and the lingering threat of a Catholic restoration. See Johnson et al., supra,
at 240.

       Religious tension in the colonies was not nearly as intense as in Europe, but
as the prospect of war rose, so did anti-Catholic sentiment. Maryland’s Committee
of Grievance and Courts of Justice, for example, alleged in 1753 that Catholics had
plotted “towards carrying on the Rebellion against King George,” among other acts
of treachery. 50 Archives of Maryland, supra, at 201. This report, along with an
accompanying wave of anti-Catholic bias, led the Maryland Legislature to pass a
law stripping them of their arms in 1756. See 52 Archives of Maryland, supra, at
454.

      Pennsylvania and Virginia disarmed Catholics around the same time.
“[A]ctual war with the French King and his subjects” and the possibility of “intestine

                                          -6-
commotions, rebellions, or insurrections” led both states down this path. 5 The
Statutes at Large of Pennsylvania, supra, at 609; see 7 The Statutes at Large; Being
a Collection of All the Laws of Virginia, supra, at 35 (explaining that “it is dangerous
at this time to permit Papists to be armed”). In fact, the Pennsylvania disarmament
statute tied the “papist” prohibition to the war effort: it allowed the “colonel of the
regiment within whose district the arms [were] found” to take them for “public use.”
5 The Statutes at Large of Pennsylvania, supra, at 627. Confiscated arms were then
redeployed in the fight against France.

       A similar pattern emerged with the Loyalists during the Revolutionary War.
States like Virginia and Pennsylvania required men above a certain age to swear a
“loyalty oath” to the revolutionary cause. See Act of June 13, 1777, § 1, reprinted
in 9 The Statutes at Large of Pennsylvania, supra, at 110–11. Refusal to do so would
result in the loss of arms. See id. at 111–13 (explaining that those who fail to take
the oath “renounc[ing] and refus[ing] all allegiance to King George . . . shall be
disarmed”).

       Loyalists, just like the other groups discussed above, posed a danger. People
who could not pledge allegiance were likely to aid the British, or possibly even join
their ranks. See Mark Mayo Boatner III, Encyclopedia of the American Revolution
663 (1st ed. 1966) (discussing the nearly 50,000 colonists who fought for the
British). And then they could use their arms to kill others, including their fellow
citizens. See Kanter, 

 (explaining that people who failed to take an
oath were a “potential threat” to the revolutionary cause (citation omitted)); Daniels,

, at *13. Oaths were meant to reduce the danger before the threat
materialized into something more.

       Practices shortly after the Founding are consistent with the dangerousness
rationale. See Bruen, 142 S. Ct. at 2136–37 (discussing the concept of
“liquidation”). Of the states that protected the right to keep and bear arms, none
disarmed non-dangerous felons. Cf. Handbook on the National Conference of
Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual

                                          -7-
Meeting 862–63 (1925) (cataloging the earliest felon-in-possession laws in the
states). You read that right, none.

       Even violent felons, as a class, were not disarmed until the early 20th century,
nearly 150 years later. See Federal Firearms Act, ch. 850, §§ 1(6), 2(e), 2(f), 

, 1250–51 (1938). And it was only in 1961, just 62 years ago, that the federal
government finally abandoned dangerousness as the litmus test for disarmament in
enacting § 922(g)(1)’s predecessor. See An Act to Strengthen the Federal Firearms
Act, 

 Stat. 757 (1961); see also Range, 

. There
is nothing about felon-dispossession laws that is longstanding, unless six decades is
long enough to establish a “historical tradition” of the type contemplated by Bruen.
Spoiler alert: it is not. See Bruen, 

 (holding unconstitutional a
century-old licensing regime).

      In sum, the decades surrounding the ratification of the Second Amendment
showed a steady and consistent practice. People considered dangerous lost their
arms. But being a criminal had little to do with it.

                                          III.

       Jackson’s cursory historical analysis does not establish otherwise. I start with
a discussion of the so-called “virtue theory” of the Second Amendment, followed by
a deep dive into its ratification history.

                                          A.

       Jackson suggests that “citizens who are not ‘law-abiding’” permanently lose
their right to keep and bear arms, “whether or not they ha[ve] demonstrated a
propensity for violence.” Jackson, 

 (citation omitted); see 

(allowing the disarming of anyone who has “disrespect for the legal norms of
society”); see also Range, 

 (Krause, J., dissenting). The virtue theory
views bearing arms as a “civic right” for only the virtuous. Folajtar, 980 F.3d at

                                          -8-
914 (Bibas, J., dissenting) (debunking the scholarship that supports this position).
Felons, being felons, do not fall into that category, so they lose the right. 

       The problem is that nothing in the Second Amendment’s text supports such a
restrictive interpretation. The right to bear arms belongs to “the people”—the
virtuous, the non-virtuous, and everyone in between. U.S. Const. amend. II; District
of Columbia v. Heller, 

 (2008) (“‘[T]he people’ . . .
unambiguously refers to all members of the political community, not an unspecified
subset.”); Range, 69 F.4th at 101–02 (making this point).

      History is just as definitive on this point. Consider Catholics, who had long
been persecuted for their perceived lack of virtue. See, e.g., The Toleration Act of
1688, 1 W. & M., ch. 18. They did not suddenly lose their guns because society
viewed them as unvirtuous. Rather, the tipping point was an “actual war” with a
Catholic nation, which created a risk that Catholics would sympathize with the
French, our enemy, and engage in “rebellion[] or insurrection[].” 5 The Statutes at
Large of Pennsylvania, supra, at 609.

       The virtue theory also suffers from an even more glaring flaw. If felon
disarmament is so obviously constitutional, then why were there “no [Founding-era]
laws . . . denying the right [to keep and bear arms] to people convicted of crimes”?
Binderup v. Att’y Gen. United States, 

, 368–69 (3d Cir. 2016)
(Hardiman, J., concurring) (citation omitted). After all, Bruen tells us to find a
“historical analogue” and the most obvious one—disarming felons—did not exist in
the colonies or early American states. Jackson tries to explain why: the standard
penalty for felonies was death, and dead men don’t need guns. See Jackson, 

 (explaining that the “punishments . . . subsumed disarmament”); Medina v.
Whitaker, 

 (D.C. Cir. 2019) (making the same point).

       There are several flaws with this explanation, the first being that it rests on a
faulty assumption. Not all felonies were punishable by death, particularly the non-
dangerous ones. See An Act for the Punishment of Certain Crimes Against the

                                          -9-
United States, ch. 9, §§ 2, 6, 21, 

, 112–17 (1790) (creating various term-
of-years sentences for nonviolent felonies, such as “misprision” and “bribery”); 2
The Works of James Wilson 348 (James DeWitt Andrews ed., Chicago, Callaghan
and Company 1896) (explaining that felonies no longer required the death penalty
by the time of the Founding); 6 Nathan Dane, A General Abridgment and Digest of
American Law, With Occasional Notes and Comments 715 (Boston, Cummings,
Hilliard & Co. 1824) (noting that “but a very few” felonies were punishable by
death); see also Kanter, 919 F.3d at 458–62 (Barrett, J., dissenting) (discussing how
the concept of “civil death” did not apply after felons had served their sentence).
Even many first-time violent offenders escaped the death penalty through the
“benefit of clergy,” including the famous case of two British regulars who were
convicted of manslaughter for their role in the Boston Massacre. See Jeffrey Sawyer,
“Benefit of Clergy” in Maryland and Virginia, 

, 49–50
(1990). Jackson’s greater-includes-the-lesser argument cannot be right if the
greater—the widespread use of death as the punishment for a felony—was itself a
fiction.

       The second problem is that the argument only works if the greater and the
lesser were both punishments for committing a crime. It turns out, however, that
disarmament was never one. Death, peace bonds, whippings, hard labor, and prison
time were among the punishments available, but conspicuously missing was any
dispossession of firearms, much less a lifetime ban on owning them. See, e.g., Act
of March 18, 1796, reprinted in Laws of the State of New-Jersey; Revised and
Published under the Authority of the Legislature 245 (Trenton, Joseph Justice 1821)
(punishing manslaughter with a fine or imprisonment and hard labor); Paul Lermack,
Peace Bonds and Criminal Justice in Colonial Philadelphia, 1976 Pa. Mag. of Hist.
& Biography 173, 187 (cataloging the use of peace bonds for felonies).

       Third, to the extent Jackson characterizes forfeiture of arms as a common non-
capital punishment, it only covered firearms used in the actual commission of a
crime. The most common examples were non-violent hunting offenses. See, e.g.,
Act of Apr. 20, 1745, reprinted in 23 The State Records of North Carolina 218–19

                                        -10-
(Walter Clark ed. 1904); Act of Oct. 9, 1652, reprinted in E. B. O’Callaghan, Laws
and Ordinances of New Netherland 1638–1694, at 138 (Albany, Weed, Parsons and
Company, 1868). Another was “Terror of the People”—an ancient offense
prohibiting the use of a weapon to terrorize others. George Webb, The Office of
Authority of a Justice of the Peace 92–93 (Williamsburg, William Parks 1736)
(discussing Virginia law); see An Act for the Punishing of Criminal Offenders, ch.
11, § 6 (1692), reprinted in The Charters and General Laws of the Colony and
Province of Massachusetts Bay 237, 240 (Boston, T.B. Wait & Co. 1814); Statute
of Northampton, 

, c. 3 (1328) (requiring forfeiture, among other
punishments).

       The fact that the state took away a specific firearm does not, as Jackson
suggests, support the constitutionality of a blanket ban. Cf. Range, 

.
Nothing prevented individual offenders, even those who had forfeited a gun, from
buying another. 1 As Bruen reminds us, “if earlier generations addressed [a] societal
problem, but did so through materially different means, that also could be evidence
that a modern regulation is unconstitutional.” 

. The forfeiture of
a specific gun certainly qualifies as a “materially different means” than stripping a
person of the right to keep and bear arms for a lifetime. 

       The fourth and final point takes us right back to the start: if Jackson is right,
then the government can presumably strip felons of other core constitutional rights
too. See Range, 69 F.4th at 101–02. Dead men do not speak, assemble, or require
protection from unreasonable searches and seizures, so those must be rights
belonging to the “people” that anyone who “demonstrate[s] disrespect for legal
norms of society,” Jackson, 

, can forfeit too. See U.S. Const. amends.
I, IV; Range, 69 F.4th at 101–02; cf. Bruen, 

 (explaining that courts
should treat the Second Amendment like other enumerated rights). Or perhaps we

      1
        Forfeiture has a longstanding pedigree in English and American law. See
Austin v. United States, 

, 613–14 (1993) (discussing the history). But
it never extended to every firearm a person owned.

                                         -11-
can try felonies without a jury because they were once punishable by death. See U.S
Const. amend. V; Kanter, 919 F.3d at 462–63 (Barrett, J., dissenting) (highlighting
the absurdity of this position); Folajtar, 980 F.3d at 920–21 (Bibas, J., dissenting)
(same).

       It is true that early American legislatures did take away some “civic” rights
from felons. Chief among them were voting, sitting on a jury, and holding office.
See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in
the United States, 62–63 & tbl. A.7 (2000). But they did so explicitly, sometimes
even by constitutionalizing the restrictions. See 

 (listing which states
disenfranchised felons in the decades after the Founding). One would expect to see
similar laws stripping criminals of the right to bear arms. Cf. An Act for the
Punishment of Certain Crimes Against the United States, Ch. 9, § 21, 

(1790) (proclaiming that a person convicted of bribery “shall forever be disqualified
to hold any office of honour, trust or profit under the United States”). Yet there were
none, a conspicuous absence for a supposedly “longstanding” government power.
Jackson, 

.

                                          B.

       Jackson has no more success drawing from the Second Amendment’s
ratification history than it does in its search for an “historical analogue.” See
Jackson, 

. Five proposals on the right to bear arms came out of state
ratifying conventions. 1 Debates in the Several State Conventions on the Adoption
of the Federal Constitution 326, 328, 335 (Jonathan Elliot ed., 2d ed. Washington,
D.C., 1836) (New Hampshire, New York, and Rhode Island); 2 Bernard Schwartz,
The Bill of Rights: A Documentary History 665, 681 (1971) (Massachusetts and
Pennsylvania). Two do not address criminality at all, so they provide no support for
the virtue theory. See 1 Debates in the Several State Conventions, supra, at 328, 335
(identifying New York and Rhode Island as proposing “[t]hat the people have a right
to keep and bear arms”). Only the other three are remotely relevant. See Kanter,

 (Barrett, J., dissenting); see also Folajtar, 

, 919–20

                                         -12-
(Bibas, J., dissenting) (referencing the Pennsylvania proposal as the “only piece of
historical evidence that comes close to endorsing a ban of all former felons”).

       The most famous of the three, and the only one Jackson cites, is the “Dissent
of the Minority,” a proposal from a group of Pennsylvania Anti-Federalists. 2
Schwartz, supra, at 662, 665. It would have guaranteed, among other things, the
right to keep and bear arms “unless for crimes committed, or real danger of public
injury from individuals.” Id. Of course, being a dissent published by a “Minority,”
it does not reflect what was ultimately ratified, a point Jackson seems to miss.
Indeed, it did not even garner a majority of the votes of the Pennsylvania delegation,
much less the country as a whole.

       Indeed, the Second Amendment bears little resemblance to what the
Pennsylvania Anti-Federalists wanted it to say. Compare U.S. Const. amend. II (“A
well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”), with 2 Schwartz, supra, at
665 (“[T]he people have a right to bear arms for the defence of themselves . . . and
no law shall be passed for disarming the people or any of them unless for crimes
committed, or real danger of public injury from individuals . . . .”); see also United
States v. Skoien, 

 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)
(emphasizing the textual differences). The most obvious difference is the absence
of any language saying who can lose the right. 

 In fact, the absence of anything
on that point, over the dissent of one “influential” faction, suggests that any mention
of criminality was intentionally left out. Heller, 

; see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107–11
(2012) (describing the negative-implication canon).

      The last two proposed amendments tell us even less. The Massachusetts
proposal, advanced by Samuel Adams, would have restricted the power of the
government to strip “the people of the United States, who are peaceable citizens,
from keeping their own arms.” 2 Schwartz, supra, at 675, 681. Like the Dissent of
the Minority, however, it failed to win a majority vote of the state’s delegates. And

                                          -13-
even if it had, “peaceable” is just a synonym for non-dangerous, which suggests that,
like the Pennsylvanians who wanted to add “real danger,” the Massachusetts
delegates understood that dangerousness was what mattered. Kanter, 919 F.3d at
455–56 (Barrett, J., dissenting) (analyzing early dictionary definitions to conclude
that “peaceable citizens” were “not violent . . . bloody . . . quarrelsome . . . [or]
turbulent” (brackets and citations omitted)).

       The only somewhat-relevant ratifying proposal that carried a majority at a
state convention was from New Hampshire. Its focus was on the dangerousness
posed by rebellion: “Congress shall never disarm any citizen, unless such as are or
have been in actual rebellion.” 1 The Debates in the Several States, supra, at 326.
Making no mention of other crimes, it simply reinforces the importance of
dangerousness.

                                   *     *      *

       Disarmament is about dangerousness, not virtue. We know that because
colonial and post-ratification gun laws targeted rebellion and insurrection, not
criminality. There have always been criminals, but there is no suggestion in any
“historical analogue” that criminality alone, unaccompanied by dangerousness, was
reason enough to disarm someone. Bruen, 

 (emphasis omitted).
And history certainly does not support Jackson’s unbending rule that felons can
never win an as-applied challenge, no matter how non-violent their crimes may be
or how long ago they happened.

                                        IV.

       Perhaps recognizing the weakness of the virtue theory, Jackson suggests that
§ 922(g)(1) passes constitutional muster anyway “as an effort to address a risk of
dangerousness.” Jackson, 

. But early American legislatures did not
arbitrarily classify a group of people as dangerous and then offer no way to prove
otherwise. See Range, 

; Kanter, 

 (Barrett, J.,

                                        -14-
dissenting) (“The government could quickly swallow the right if it had broad power
to designate any group as dangerous and thereby disqualify its members from having
a gun.”).

       Rather than disarm everyone who might aid the enemy in wartime, the
colonists devised a way to determine who was dangerous and who was not: loyalty
oaths. Suspected Catholic insurgents in Virginia, for example, could keep their guns
if they “sw[ore] undivided allegiance to the sovereign.” See Kanter, 

(Barrett, J., dissenting) (citation omitted). The same went for suspected Loyalists
during the Revolutionary War. See Daniels, 

, at *11 n.30; Range,
69 F.4th at 124–26 (Krause, J., dissenting). Loyalty oaths were a way to tell who
might start a rebellion or raise arms against others. They also gave individuals a
way to show they were not as dangerous as the government thought.

       They were not perfect. Sometimes they were underinclusive. Benedict
Arnold’s loyalty oath, for example, did not reveal his treachery. See Benedict
Arnold’s Oath of Allegiance (May 30, 1778) (on file with the National Archives).
Other times they were overinclusive. A Pennsylvania law allegedly swept up non-
dangerous pacifists like the Quakers, whose religion prohibited both violence and
oath taking.2 See Jackson, 

 (arguing that some people who refused



      2
        It is unclear whether many Quakers were actually disarmed in Pennsylvania
or other loyalty-oath states. They were only forbidden from taking oaths, after all,
and many of the relevant laws, including one of the statutes Jackson cites, allowed
people to “affirm” or “declare” their loyalty instead. Act of June 13, 1777, ch. 756,
§ 1, reprinted in 9 The Statutes at Large of Pennsylvania from 1682–1801, supra, at
110–111; Act of June 1776, reprinted in 7 Records of the Colony of Rhode Island
and Providence Plantations in New England 566–67 (John Russell Bartlett ed.,
Providence, A. Crawford Greene 1862). Other states expressly exempted Quakers
from their loyalty-oath requirements. See Act of May 1, 1776, ch. 21, § 8, reprinted
in 5 The Acts and Resolves, Public and Private, of the Province of the Massachusetts
Bay 483 (Boston, Wright & Potter Prtg. Co. 1886).

                                        -15-
the oath were not dangerous); Range, 

 (Krause, J., dissenting); cf.
Heller, 

 (“Quakers opposed the use of arms not just for militia
service, but for any violent purpose whatsoever . . . .”); 4 Journals of the Continental
Congress, 1774-1789, at 205 (Worthington Chauncey Ford ed., 1906).

       As imperfect as they were, loyalty oaths still identified dangerous people.
Whenever anyone refused to pledge their loyalty, particularly during wartime or
societal unrest, it raised the possibility that their sympathies laid elsewhere. See 5
The Acts and Resolves, supra, at 479–84 (disarming each man older than 16 who
refused to sign a loyalty oath and requiring the “strictest search” of his possessions).
And the risk was that they would pose a danger by raising arms against the
government or their fellow citizens.

       Felons, on the other hand, are different. Murderers are almost always
dangerous. But people who utter obscenities on the radio, read another person’s
email, or open a bottle of ketchup in the store and “put[] it back on the shelf,” not so
much. See Folajtar, 

 (Bibas, J., dissenting). Yet § 922(g)(1) does
not discriminate. And now, under Jackson, there is no recourse—not a loyalty oath
or a challenge in court—to prove they pose no danger.

       In the end, the argument for blanket disarmament of felons sounds like the
type of absolutist argument that the Supreme Court rejected in Bruen. Just like the
entire city of New York is not a “sensitive place,” neither is every felon “dangerous.”
Both classifications are “too broad[].” Bruen, 

. In Bruen, the
antidote was a court challenge. Here, Jackson puts even that cure out of reach. 69
F.4th at 502.

                                          V.

      Jackson is also wrong to think that Heller completely immunized felon-in-
possession laws. To be sure, it did not “cast doubt” on their “presumptive[]
lawful[ness].” 

, 627 n.26 (emphasis added). But Heller stopped

                                         -16-
short of saying they are always constitutional, no matter the felon. After all, a
measure can be presumptively constitutional and still have constitutionally
problematic applications. As-applied challenges exist for exactly this reason. See
Wash. State Grange v. Wash. State Republican Party, 

, 450–51, 457–
58 (2008); Atkinson, 

 (“Nothing allows us to sidestep Bruen in the
way the government invites.”).

      Besides, Heller itself had a different focus: it took on the centuries-old debate
about whether the Second Amendment creates an individual or collective right. 

. It did not adopt a test for Second Amendment challenges, much less
decide whether felon bans are constitutional. See Skoien, 

(explaining that Heller “left open” this issue). And if anything, it undermined the
case for the virtue theory by making clear that the right to keep and bear arms is an
“individual,” Heller, 

, rather than a “civic right,” Kanter, 

 n.6 (discussing the scholarship that supports a “civic[-]right” conception of
the Second Amendment). See Heller, 

 (“Nowhere else in the
Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an
individual right.” (quoting U.S. Const. amend. II)). The two are mutually exclusive.
See Binderup, 836 F.3d at 370–72 (Hardiman, J., concurring in part).

      Jackson also seeks refuge in the various separate opinions in Bruen. See
Jackson, 

 (citing Justice Alito’s concurrence, Justice Kavanaugh’s
concurrence, and Justice Breyer’s dissent as “assurances” that Bruen did not “cast
doubt” on longstanding felon bans); Cunningham, 

 (same). But just
as New York’s licensing regime was not before the Court in Heller, neither was
§ 922(g)(1) before the Court in Bruen. See Bruen, 

 (Alito, J.,
concurring) (“[T]oday’s decision therefore holds that a State may not enforce a law[]
like New York’s Sullivan Law . . . . That is all we decide.”). Reading the tea leaves
from dicta in three separate opinions is no substitute for faithful application of a
majority opinion that commanded six votes. See Oklahoma v. Castro-Huerta, 142




                                         -17-
S. Ct. 2486, 2498 (2022) (“[D]icta, even if repeated, does not constitute
precedent . . . .”).

                                         VI.

       Perhaps the driving force behind Jackson is prudence and practicality, not text
or history. The court is worried about what “felony-by-felony” litigation will look
like and whether the new post-Bruen world will be judicially manageable. Jackson,

 & n.2. But the biggest questions all have simple answers. What is
the standard? Dangerousness. When will it happen? When a defendant raises an
as-applied challenge. What will it look like? The parties will present evidence and
make arguments about whether the defendant is dangerous. The truth is that it will
look almost the same as other determinations we ask district courts to make every
day.

       It is not as if assessing dangerousness is foreign. District courts considering
whether to release a defendant before trial must consider whether it would “endanger
the safety of any other person or the community.” 

(b). And then
at sentencing, dangerousness comes up at least twice. The first is when balancing
the statutory sentencing factors, including the need “to protect the public.” 

§ 3553(a)(2)(C). The second is even a closer match: determining whether a
defendant must “refrain from possessing a firearm” while on probation or supervised
release. Id. § 3563(b)(8) (allowing a judge to impose numerous conditions on
probation, such as “refrain[ing] from possessing a firearm, destructive device, or
other dangerous weapon”); id. § 3583 (allowing a judge to impose, if “reasonably
related” to the sentencing factors, “any condition set forth as a discretionary
condition . . . in section 3563(b)”). It is not clear why making one more
determination along those same lines, perhaps even on the same facts, would be so
difficult.3

      3
       Besides, difficulty of administration is no excuse for failing to follow
Supreme Court precedent. See, e.g., Brown v. Bd. of Educ., 

(1955).
                                        -18-
       We also do not have to look far to learn that “felony-by-felony” litigation is
nothing to fear. Jackson, 

. Over a decade before Bruen, the Third
Circuit explained that a successful as-applied challenge to a § 922(g)(1) conviction
required the defendant to “present facts about himself and his background that
distinguish his circumstances from those of persons historically barred from Second
Amendment protections.” United States v. Barton, 

 (3d Cir. 2011).
Substitute the word “dangerousness” and shift the burden of proof to the
government, and Barton provides the template for what an as-applied challenge
looks like post-Bruen.

       It should come as no surprise that district courts around the Third Circuit had
no trouble handling the task. They considered basic facts in making the
determination, including a felon’s criminal history, behavior on probation, and
history of violence in evaluating whether gun possession posed a danger to the
community. Suarez v. Holder, 

, 585–89 (M.D. Pa. 2015);
Binderup v. Holder, 

, at *21–31 (E.D. Pa. Sept. 25, 2014), aff’d,

 (3d Cir. 2016). Exactly what they already do pretrial and at sentencing.
We just need to trust judges to do it one more time. See, e.g., United States v.
Banderas, 

 (8th Cir. 2017) (“The [district] court reasonably
concluded that [the defendant] was ‘potentially a very dangerous person . . . .’”).

                                        VII.

        These issues are “exceptional[ly] importan[t].” Fed. R. App. P. 35(a)(2).
Felon-in-possession cases are common in federal court. And Jackson’s holding
doing away with as-applied Second Amendment challenges is an outlier. See
Atkinson, 70 F.4th 1023–24; Range, 

. Even the case Jackson pinned
its historical analysis on, Range, has now gone the other way. Compare Range, 53




                                        -19-
F.4th 262, with Range, 

 (en banc). En-banc votes do not come much
easier than this one. I would grant.
                        ______________________________

                                                August 30, 2023




Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
___________________________________
            /s/ Michael E. Gans




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