FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 22-50314

              Plaintiff-Appellee,           D.C. No.
 v.                                      3:22-cr-01581-
                                             GPC-2
JESUS PEREZ-GARCIA,

              Defendant-Appellant.          OPINION

      Appeal from the United States District Court
        for the Southern District of California
      Gonzalo P. Curiel, District Judge, Presiding

UNITED STATES OF AMERICA,                 No. 22-50316

              Plaintiff-Appellee,           D.C. No.
                                         3:21-cr-03101-
 v.                                          JLS-1

JOHN THOMAS FENCL,

              Defendant-Appellant.

       Appeal from the United States District Court
          for the Southern District of California
      Janis L. Sammartino, District Judge, Presiding
2                      USA V. PEREZ-GARCIA


           Argued and Submitted January 26, 2023
                 San Francisco, California

                      Filed March 18, 2024

    Before: Kim McLane Wardlaw, Richard R. Clifton, and
             Gabriel P. Sanchez, Circuit Judges.

                   Opinion by Judge Sanchez


                          SUMMARY *


                         Criminal Law

    In consolidated appeals from district court orders
subjecting two defendants (Appellants) to a condition of
pretrial release that temporarily barred them from possessing
firearms pending trial, the panel denied Appellants’ motion
to dismiss the appeals as moot, and provided its full rationale
for its previous order affirming the district court’s orders.
    The panel declined to dismiss the appeal as moot for four
reasons: the case is not moot in the jurisdictional sense, the
opinion is not advisory, equity weighs in favor of denying
the motion, and dismissal would likely force later panels to
duplicate the panel’s efforts while confronting the exact
same issues.



*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    USA V. PEREZ-GARCIA                   3


    Appellants contended that the pretrial firearm condition
violates their Second Amendment rights under New York
State Rifle & Pistol Ass’n, Inc. v. Bruen, 

(2022). Disagreeing, the panel held that the Bail Reform Act
of 1984’s firearm condition on pretrial release is
constitutional as applied to Appellants. The panel explained
that its holding is consistent with how courts have long
balanced the constitutional rights of pretrial detainees and
releasees with legitimate public safety and logistical
considerations, and is consistent with our nation’s long
history of temporarily disarming criminal defendants facing
serious charges and those deemed dangerous or unwilling to
follow the law.


                       COUNSEL

Zachary Howe (argued), Daniel E. Zipp, and Patrick C.
Swan, Assistant United States Attorneys, United States
Attorney’s Office, San Diego, California, for Plaintiff-
Appellee.
Katherine M. Hurrelbrink (argued), Assistant Federal Public
Defender, Federal Defenders of San Diego Inc., San Diego,
California, for Defendant-Appellant.
Daniel L. Kaplan, Assistant Federal Public Defender; John
M. Sands, Federal Public Defender, District of Arizona;
Federal Public Defender’s Office, Phoenix, Arizona;
Carmen Smarandoiu, Appellate Chief; Jodi Linker, Federal
Public Defender, Northern District of California; Federal
Public Defender’s Office, San Francisco, California; for
Amici Curiae Ninth Circuit Federal Public and Community
Defenders.
4                   USA V. PEREZ-GARCIA


Ellora T. Israni and Ryan Downer, Civil Rights Corps,
Washington, D.C., for Amicus Curiae Civil Rights Corps.
Adam Kraut, Second Amendment Foundation, Bellevue,
Washington; Joseph G.S. Greenlee, FPC Action Foundation,
Las Vegas, Nevada; C.D. Michel, Michel & Associates P.C.,
Long Beach, California; John W. Whitehead, The
Rutherford Institute, Charlottesville, Virginia; for Amici
Curiae Firearms Policy Coalition, FPC Action Foundation,
Second Amendment Law Center, California Rifle & Pistol
Association, Second Amendment Foundation, Rutherford
Institute, and Cato Institute.

OPINION

SANCHEZ, Circuit Judge:

    John Thomas Fencl was arrested after police officers
found more than 110 guns in his house, including 10
unregistered and untraceable “ghost guns,” 4 silencers, and
3 short-barreled rifles. Officers also uncovered thousands of
rounds of ammunition, including armor-piercing and
incendiary rounds and a tear-gas grenade. Jesus Perez-
Garcia was arrested following a customs inspection at the
United States-Mexico border. He was the passenger in a car
in which officers found approximately eleven kilograms of
methamphetamine and half a kilogram of fentanyl. Both
men were charged with multiple felony offenses.
    Consistent with the Bail Reform Act of 1984, two
magistrate judges released Fencl and Perez-Garcia pending
their trials but subjected them to a condition of pretrial
release that temporarily barred them from possessing
                     USA V. PEREZ-GARCIA                     5


firearms pending trial. See 18 U.S.C § 3142 (c)(1)(B)(viii).
The magistrate judges concluded that the firearm condition
was the least restrictive way to assure the safety of the
community and the defendants’ appearances in court. Id.
§ 3142(c)(1)(B). Two district court judges agreed.
    In these consolidated appeals, Appellants Fencl and
Perez-Garcia contend that the pretrial firearm condition
violates their Second Amendment rights under New York
State Rifle & Pistol Ass’n, Inc. v. Bruen, 

 (2022).
We disagree. We conclude that the Government has met its
burden of showing that Appellants’ temporary disarmament
is consistent with our nation’s historical tradition of firearm
regulation. We previously affirmed the district courts’
orders on that basis, see Order Dated January 26, 2023, and
we now provide our full rationale.
                             I.
    John Fencl was arrested in June 2021 after officers found
more than 110 guns in his house. Discovered in the search
were 10 “ghost guns,” 4 silencers, 3 short-barreled rifles, and
thousands of rounds of ammunition, including armor-
piercing and incendiary rounds and a tear-gas grenade. This
was not Fencl’s first transgression for unlawful gun
possession. He pleaded guilty to a misdemeanor firearm
offense in 2019 after officers arrested him for unlawful
possession of a concealed firearm without a license. He was
arrested again in April 2021 for possession of a concealed
firearm, a privately made ghost gun, while he was on
probation. A few months after his June 2021 arrest, Fencl
was charged with felony unlawful possession of three
unlicensed short-barreled rifles and four unlicensed silencers
in violation of 

(d). If convicted on all seven
counts, he faces up to 70 years in prison. See 

 § 5871.
6                       USA V. PEREZ-GARCIA


    Fencl sought pretrial release, which the magistrate judge
granted at a bond hearing. His release was subject to various
conditions, including the following: “The defendant must
not possess or attempt to possess a firearm, destructive
device, or other dangerous weapon” and “must legally
transfer all firearms, as directed by Pretrial Services.” 1 The
firearm condition effectively barred Fencl from possessing
any firearms pending his trial. Shortly after the Supreme
Court decided Bruen, Fencl filed a motion challenging the
constitutionality of the firearm condition. He sought to
remove the condition so that he could carry guns when he
traveled out of state for work and to protect his home. The
magistrate judge denied his motion, and the district court
affirmed.
    In June 2022, Perez-Garcia was arrested following a
customs inspection at the United States-Mexico border. He
was the passenger in a car in which officers found
approximately eleven kilograms of methamphetamine and
half a kilogram of fentanyl. The Government charged him
with two counts of importing controlled substances in
violation of 

, 960. At his bond hearing,
Perez-Garcia was granted pretrial release subject to various
conditions, including a substantially similar firearm
condition as the one imposed on Fencl. Shortly after Bruen
was issued, Perez-Garcia filed a motion to modify his
conditions of pretrial release to remove the firearm
condition. He wanted access to firearms so that he could
pursue employment as an armed security officer and to
protect his family. The magistrate judge denied his motion,
and the district court affirmed.

1
  The magistrate judge modified the firearm condition to prohibit Fencl
from possessing gun parts as well.
                        USA V. PEREZ-GARCIA                            7


    These consolidated appeals followed.              We have
jurisdiction pursuant to 

(c) and 

. We review de novo the constitutionality of pretrial
release conditions under the Bail Reform Act. See United
States v. Townsend, 

 (9th Cir. 1990). We
may affirm the order on any ground supported by the record,
even if it differs from the rationale of the district court. See
Opara v. Yellen, 

 (9th Cir. 2023).
                                  II.
    Before reaching the merits of Appellants’ claims, we
address Appellants’ motion to dismiss their consolidated
appeals on the basis of mootness. The Government opposes
the motion. We decline to dismiss the appeals for the
reasons explained below.
    In December 2022, Perez-Garcia and Fencl filed appeals
of the denials of their respective motions to modify their
conditions of pretrial release under Federal Rule of
Appellate Procedure 9(a). 2 The parties fully briefed and
argued the appeals in the following weeks. On January 26,
2023, we ruled against Fencl and Perez-Garcia in a
consolidated, dispositive order stating, “We affirm the
district court’s orders. An opinion explaining this disposition
will follow.” It is not uncommon for appellate courts to
resolve urgent motions by filing an expedited and summary
order, later to be followed by an opinion that provides the
reasoning underlying the order. See, e.g., Friends of the Inyo
v. U.S. Forest Serv., No. 23-15492, 

, at *1
(9th Cir. Aug. 25, 2023) (issuing an order because “an


2
  Federal Rule of Appellate Procedure 9(a) requires the courts of appeals
to “promptly determine” such appeals, and they were referred to a
motions panel of the court.
8                       USA V. PEREZ-GARCIA


immediate ruling is warranted” and noting that “[a]n opinion
will follow in due course”). 3
    Fencl and Perez-Garcia moved to dismiss their appeals
as moot after we ruled against them but before we provided
our reasoning. In the time since we filed our dispositive
order on January 26, 2023, Fencl was convicted at trial and
Perez-Garcia’s bond was revoked for repeatedly failing to
appear for hearings. 4 Because neither Fencl nor Perez-
Garcia remain on pretrial release, they contend that we now
lack jurisdiction to explain our dispositive order because
their challenges to their pretrial release conditions are moot.
     We have explained that “[t]here is a significant
difference between a request to dismiss a case or proceeding
for mootness prior to the time an appellate court has rendered
its decision on the merits and a request made after that time.”
Armster v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 

 (9th Cir. 1986). The former scenario implicates
limitations on our constitutional power because Article III
does not give federal courts constitutional authority to decide
moot cases. See 

 But when mootness arises after a “valid
decision” has already been rendered, “we are not precluded
from exercising [A]rticle III power.” 

 Rather, we may
exercise our discretion to determine whether the case should

3
  See also Where Do We Go Berkeley v. Cal. Dep’t of Transp., No. 21-
16790, 

, at *1 (9th Cir. Apr. 19, 2022); United States
v. Gainza, 

 (9th Cir. 2020); All. for Wild Rockies v.
Cottrell, 

 (9th Cir. 2010); Santiago v. Rumsfeld,

 (9th Cir. 2005).
4
 Fencl’s case went to trial and he was convicted on October 27, 2023.
Perez-Garcia failed to appear for district court hearings on February 21,
2023, and March 6, 2023. As a result, the district court issued an arrest
warrant and granted the Government’s oral motion to revoke his bond.
Perez-Garcia’s bond was forfeited in May 2023.
                        USA V. PEREZ-GARCIA                            9


be dismissed based on equitable and pragmatic
considerations. See United States v. Payton, 

 (9th Cir. 2010); Indep. Living Ctr. of S. Cal., Inc. v.
Maxwell-Jolly, 

 (9th Cir. 2009). 5
    We deny Appellants’ motion to dismiss for four reasons.
First, the case is not moot, at least in the jurisdictional sense.
We already heard and conclusively resolved the merits of
Appellants’ appeal in a dispositive order, and no party
disputes that we had jurisdiction when we decided this case.
An event occurring “after our decision had been rendered
does not deprive this court of jurisdiction retroactively.”
Dickens v. Ryan, 

 (9th Cir. 2014) (en
banc) (alterations adopted and internal quotation marks
omitted); see also Humphreys v. Drug Enf’t Admin., 

 (3d Cir. 1996) (denying motion to dismiss
appeal where the court “heard and determined the merits of
the appeal” when “there was indisputably a live controversy
between the parties”).
    Second, this opinion is not advisory because it addresses
“properly presented questions concerning . . . specific
constitutional rights.” Armster, 

. By
publishing the reasoning underlying our prior order, we
merely explain the basis for our decision and do not take
further action on the merits of Appellants’ claims. We are

5
 Appellants’ motion to dismiss the appeal as moot is effectively a motion
to vacate a prior decision issued while there was a live case or
controversy. See Armster, 

. When Appellants filed their
motions to dismiss, we had already issued our order on January 26, 2023,
which conclusively resolved the merits of their pending appeals.
Appellants do not dispute that this court had jurisdiction when we issued
that “valid decision.” 

 Were we to dismiss this case as moot now, we
would in effect be “vacat[ing] a decision we have already issued.” See

10                      USA V. PEREZ-GARCIA


not the only appellate court to follow this practice. See, e.g.,
Romeu v. Cohen, 

 (2d Cir. 2001)
(explaining a prior order that denied a Puerto Rico resident’s
request for a New York absentee ballot even though the
election took place months before the opinion issued);
United States v. Int’l Bhd. of Teamsters, 

(2d Cir. 1992) (publishing opinion promised in prior order
despite termination of dispute following issuance of the
order); Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch.
Dist. No. 1, 

, 1299–1301 & n.1 (8th Cir.)
(explaining a prior order that permitted an election to
proceed months after the election took place), cert. denied,

 (1988).
    The Second Circuit has explained that this appellate
practice of bifurcating an expedited order with its reasoning
is common, often necessary, and constitutional. See
Hassoun v. Searls, 

, 129 & n.4, 130 (2d Cir.
2020) (“Because the court’s opinion explained its previous
order—which addressed a live case or controversy—the
opinion was not advisory.”); In re Grand Jury Investigation,

, 528 n.1 (2d Cir. 2005). We agree. Our
decision to publish this opinion to explain a prior order that
fully adjudicated the merits of Appellants’ claims does not
render the opinion advisory. 6

6
  Appellants contend that our decision in Environmental Protection
Information Center, Inc. v. Pacific Lumber Co., 

 (9th Cir.
2001), requires us to dismiss their appeals as moot. We do not find that
case controlling. In that case, Pacific Lumber Company asked us to
vacate statements made by the district court in its opinion granting
Pacific Lumber’s motion to dismiss the case as moot in which the district
court outlined reasons for previously granting a preliminary injunction
against Pacific Lumber. 

. The question before us was whether
                        USA V. PEREZ-GARCIA                           11


    Third, equity weighs in favor of denying Appellants’
motion. Were we to dismiss Appellants’ appeals and not
issue this opinion, we would deprive the legal community as
a whole of “the benefit of an appellate court decision that
adjudicated properly presented questions concerning . . .
specific constitutional rights.” Armster, 

;
accord Dickens, 

. That is especially true
here since Appellants are challenging the common,
statutorily authorized practice of imposing firearm
restrictions as a condition of pretrial release.
    We are also mindful that dismissal at this stage could
incentivize parties to strategically prevent the publication of
a decision adverse to their interests. Here, Appellants seek
dismissal only “[a]fter seeing the proverbial writing on the
wall” in our previously filed expedited order. Naruto v.
Slater, 

, 421 n.3 (9th Cir. 2018). Allowing
parties to file appeals “seek[ing] the benefits of a favorable
judicial decision”—and using considerable public resources
in the process—only to later obtain dismissal to “escape
some of the more significant adverse consequences of an
unfavorable judgment,” would not serve the interests of
justice or judicial economy. Armster, 

; see
also Albers v. Eli Lilly & Co., 

 (7th Cir.
2004) (per curiam) (“One good reason to exercise discretion
against dismissal is to curtail strategic behavior.”).


Pacific Lumber was an “aggrieved” party with standing to request an
appellate court to vacate statements made by the lower court after it had
rendered judgment in Pacific Lumber’s favor. 

 We answered in the
affirmative and remanded to the lower court to vacate its statements on
the merits made after it entered judgment dismissing the case as moot.
Id. at 1077. We said nothing about an appellate court’s discretionary
authority after rendering a decision on the merits but before a mandate
issues. See Armster, 

.
12                  USA V. PEREZ-GARCIA


    Fourth, and finally, dismissal would not be pragmatic
because it would likely force later panels to duplicate our
efforts while confronting the exact same issues. In light of
the extensive and complicated historical analysis the Second
Amendment now demands, cases involving Second
Amendment challenges to temporary pretrial conditions
could resolve before an appellate court has the opportunity
to issue a thorough opinion. See Bruen, 

(Breyer, J., dissenting) (explaining how the difficulties
attendant to extensive historical analysis are “especially
acute” in the lower courts, which have fewer research
resources, less assistance from amici historians, and higher
caseloads). If we do not resolve this issue now, we might
preclude efficient judicial review of a likely recurring
constitutional challenge to application of the Bail Reform
Act. See Armster, 

; Int’l Bhd. of Teamsters,

 (declining to dismiss appeal and publishing
explanatory opinion in moot case because the issues
presented were “of general and recurring applicability”).
We decline to do so. We exercise our discretion to deny
Appellants’ opposed motion to dismiss their own appeals,
and we proceed to the merits.
                            III.
    The district courts’ authority to impose conditions on
Appellants’ pretrial release stems from the Bail Reform Act
of 1984. See 18 U.S.C. §§ 3141–3156. Congress passed that
law to respond to “the alarming problem of crimes
committed by persons on release.” United States v. Salerno,

 (1987) (citation omitted). The purpose of
the statute was to give courts authority to make release
decisions that recognize “the danger a person may pose to
others if released.” 

 (citation omitted).
                         USA V. PEREZ-GARCIA                             13


    The Bail Reform Act authorizes federal courts to release
defendants awaiting trial subject to specific conditions that
“protect the community from the risk of crimes [they] might
commit while on bail.” United States v. Scott, 

 (9th Cir. 2006). Courts have discretion to choose which
conditions will best keep the community safe. 

(c)(1)(B). 7 Some conditions necessary to keep the
community safe nevertheless burden constitutional rights.
For example, the Bail Reform Act explicitly authorizes
release conditions that restrict a defendant’s constitutional
right to personal association, travel, speech directed at a
victim or witness, or, at issue here, the possession of
firearms. See 

 § 3142 (c)(1)(B)(i)-(xiv).
    The Bail Reform Act balances the burdens imposed on
criminal defendants’ rights with safeguards designed to
ensure that any restrictions imposed are narrowly tailored.
Any condition imposed on a criminal defendant must be “the
least restrictive” way to “reasonably assure the appearance
of the person as required and the safety of any other person
and the community.” Id. § 3142(c)(1)(B). And any such
condition must be justified by a showing that the defendant
poses a “heightened risk of misbehaving while [released] on
bail” pending trial. Scott, 

. In sum, the Bail
Reform Act offers pretrial detainees freedom pending trial
in exchange for abiding by a number of conditions designed


7
  To determine which conditions should be imposed, the Bail Reform
Act directs a judicial officer to consider the following: (1) the nature and
circumstances of the offense charged, (2) the weight of the evidence
against the person, (3) the history and characteristics of the person, and
(4) the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release. 

(g)(1)-(4).
14                  USA V. PEREZ-GARCIA


to protect the public and secure the attendance of the accused
at trial. See 

 (Bybee, J., dissenting).
                             IV.
    Appellants contend that the Bail Reform Act’s firearm
condition violates their Second Amendment rights because
it prohibits them from possessing guns while they are
released pending trial. As we explain in more detail below,
the Supreme Court recently clarified in Bruen that the
government bears the burden of showing that any regulation
infringing on Second Amendment rights is consistent with
this nation’s historical tradition of firearm regulation. 

. The Supreme Court specifically rejected the use
of interest-balancing and means-end scrutiny and instead
held that the Second Amendment’s text, history, and
tradition are the “[o]nly” avenues to justify a firearm
regulation. 

    The Government argues that the Bail Reform Act’s
restriction on Appellants’ firearm possession is justified not
by the Second Amendment’s text, history, or tradition, but
by the Government’s own “regulatory interest in community
safety.” In its view, the Supreme Court’s decision in
Salerno—not Bruen—controls and therefore forecloses
Appellants’ Second Amendment challenge.                   The
Government’s position, however, relies on a misreading of
Salerno and cannot be squared with Bruen.
    In Salerno, the Supreme Court concluded that the Bail
Reform Act’s provisions authorizing pretrial detention did
not, on their face, violate the Constitution’s Due Process and
Excessive Bail Clauses. See 

.
Consistent with the Court’s due process jurisprudence,
Salerno rejected the due process challenge by balancing the
accused’s fundamental interest in liberty against the
                     USA V. PEREZ-GARCIA                     15


government’s interest in preventing danger and flight. 

; see also 

 (“We have repeatedly held that
the Government’s regulatory interest in community safety
can, in appropriate circumstances, outweigh an individual’s
liberty interest.”). Salerno then rejected the argument that
the Eighth Amendment only allows the government to
restrict bail solely based on the defendant’s risk of flight.
See 

. Salerno “intimate[d] no view on the
validity of any [other] aspects of the Act.” 

 at 745 n.3.
     The Government argues that because Salerno already
held that the Government’s regulatory interest in community
safety authorizes pretrial detention—which is a total
deprivation of liberty—it follows that any lesser
deprivations of liberty, such as the firearm pretrial release
condition at issue here, must also pass constitutional muster
if reasonably necessary to prevent danger to the community.
Just as an indictment can justify restrictions on Fourth, Fifth,
and Sixth Amendment rights, the Government contends,
“then [it] can also justify the restriction of a defendant’s
Second Amendment rights as a temporary and judicially
authorized condition of pretrial release.”             As the
Government sees it, Bruen did not alter the balance Salerno
already struck nor require that courts accord Second
Amendment rights special consideration. The Government
invites us to “uphold the challenged condition without
proceeding further” under a Bruen analysis.
    The Government reads too much from Salerno. In
upholding the Bail Reform Act’s pretrial detention
provisions from facial challenge on Fifth and Eighth
Amendment grounds, the Supreme Court did not conclude
nor imply that criminal defendants released pending trial
lose their right to challenge the constitutionality of pretrial
release conditions simply because detention might otherwise
16                  USA V. PEREZ-GARCIA


be permitted under an interest-balancing analysis. Nor does
Salerno’s due process analysis impose a one-size-fits-all
model of constitutional inquiry on all challenges to
conditions of pretrial detention or release under the Bail
Reform Act.
    For example, when a criminal defendant in Scott
challenged their pretrial release condition authorizing
suspicionless searches or drug testing, we applied traditional
Fourth Amendment analysis to assess whether these
conditions were unreasonable searches or seizures. See, e.g.,
Scott, 

. Similarly, when a class of pretrial
detainees challenged a pretrial detention condition requiring
them to expose their body cavities as a part of a strip search
in Bell, the Supreme Court applied traditional Fourth
Amendment analysis to these claims. See Bell v. Wolfish,

 (1979). In Bell, the Supreme Court also
applied First Amendment analysis to a different claim
involving a pretrial detention condition prohibiting detainees
from receiving hardback books. See 

.
    On the other hand, when a class of undocumented
pretrial detainees raised a substantive due process challenge
to an Arizona law that categorically forbade them from
obtaining any form of bail or pretrial release, we applied
Salerno’s interest-balancing substantive due process
framework to assess whether the law comported with the
Due Process Clause of the Fourteenth Amendment. See
Lopez-Valenzuela v. Arpaio, 

 (9th Cir.
2014). The point is that federal courts have not analyzed
every constitutional challenge to a condition of pretrial
detention or release under the Bail Reform Act by applying
the same interest-balancing approach the Supreme Court
applied in Salerno. We see no reason to apply the
Government’s one-size-fits-all approach here.
                    USA V. PEREZ-GARCIA                    17


    After all, Appellants contend that the Bail Reform Act’s
firearm condition violates their Second Amendment rights,
not their due process protection against punishment before
conviction or their Eighth Amendment protection against
excessive bail. And Bruen makes clear that text, history, and
tradition are the “[o]nly” ways the Government can justify a
regulation that implicates Second Amendment rights. 

. We therefore analyze Appellants’ Second
Amendment challenges under the Bruen framework. Doing
so does not elevate the Second Amendment above other
constitutional rights. Rather, our approach “accords with
how we protect other constitutional rights.” 

.
                             V.
    Fencl and Perez-Garcia challenge the Bail Reform Act’s
firearm condition as applied to them, which means they
contend only that the law violates their Second Amendment
rights based on the facts of their particular cases. See In re
Nat’l Sec. Letter, 

, 1070 (9th Cir. 2022) (as
amended). We therefore assess only whether the Bail
Reform Act’s firearm condition violates the Second
Amendment as applied to Fencl and Perez-Garcia. See
United States v. Chovan, 

 (9th Cir.
2013), abrogated on other grounds by Bruen, 

.
    The Second Amendment reads: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. In District of Columbia
v. Heller, 

 (2008), and McDonald v. Chicago,

 (2010), the Supreme Court held that the
Second and Fourteenth Amendments protect the right of an
ordinary, law-abiding citizen to possess a handgun in the
home for self-defense. In Bruen, the Supreme Court
18                  USA V. PEREZ-GARCIA


recognized that ordinary, law-abiding citizens have a similar
right to carry handguns publicly for their self-defense. 

.
    The Supreme Court has repeatedly emphasized,
however, that “the right secured by the Second Amendment
is not unlimited.” Heller, 

; see also Bruen,

; McDonald, 

. The Court has
recognized, for example, that legislatures may ban
“dangerous and unusual weapons” because the Second
Amendment does not guarantee an unlimited right to possess
every kind of weapon. Heller, 

. Similarly,
legislatures may ban weapons in “sensitive places” because
the Amendment does not guarantee an unlimited right to
carry weapons in every kind of place. 

; Bruen, 

.
    So too may legislatures regulate who may possess
weapons in the first place. In particular, the Court has
recognized a historical tradition of disarming individuals
who are not “law-abiding, responsible citizens.” Heller, 

. To that end, Heller specifically identified
“longstanding prohibitions on the possession of firearms by
felons and the mentally ill” as non-exhaustive “examples” of
“presumptively lawful regulatory measures.” 

, 627
n.26. A plurality in McDonald similarly observed that the
Second Amendment protects “the safety of . . . law-abiding
members of the community.” 

. And it
“repeat[ed] [Heller’s] assurances” that the Second
Amendment presumptively allows Congress to disarm those
who are not law-abiding and responsible enough to have
weapons, such as felons and individuals with mental
illnesses. 

.
                     USA V. PEREZ-GARCIA                     19


    In Bruen, the Supreme Court again reaffirmed Heller’s
and McDonald’s holding that the Second Amendment
protects “the right of an ordinary, law-abiding citizen to
possess a handgun in the home.” Bruen, 

.
The Bruen court agreed with the plaintiffs in that case that
“ordinary, law-abiding citizens have a similar right to carry
handguns publicly for their self-defense.” 

 At the same
time, Bruen clarified that text, history, and tradition are the
“[o]nly” avenues to justify a firearm regulation. 

.
The Supreme Court did so after we and other circuit courts—
following Heller and McDonald—coalesced around a two-
step framework for analyzing Second Amendment
challenges that combined historical analysis with means-end
scrutiny. See, e.g., Young v. Hawaii, 

(9th Cir. 2021) (en banc), vacated, 

 (2022).
     Bruen rejected this two-step approach and adopted a
two-step approach of its own. Rejecting the use of means-
end scrutiny, the Bruen court instead instructed us to apply
the following framework to Second Amendment claims: We
first consider whether the Second Amendment’s plain text
covers an individual’s proposed course of conduct. Bruen,

. If so, the Second Amendment presumptively
protects that conduct. 

 The Government then bears the
burden of justifying the challenged regulation by showing
that it is consistent with our nation’s “historical tradition of
firearm regulation.” 

 Only then may we conclude that the
regulation is constitutional. With this framework in mind,
we turn to Appellants’ claims.
                              A.
    The threshold question in a Second Amendment claim is
whether the Amendment presumptively protects the
individual’s conduct. 

 In Bruen, the Supreme Court
20                      USA V. PEREZ-GARCIA


approached this question by asking whether the petitioners
were among “the people” within the plain meaning of the
Second Amendment and then asking whether the plain text
of the Amendment encompasses the individuals’ “proposed
course of conduct.” 

. 8
    In concluding that Fencl and Perez-Garcia are among the
people who have Second Amendment rights, we pause to
highlight a lingering ambiguity in the caselaw. The text of
the Second Amendment refers to the right of “the people” to
keep and bear arms. U.S. Const. amend. II. In Heller, the
Court interpreted the phrase “the people” to “refer[] 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.” 

 (quoting United States v. Verdugo-Urquidez, 

 (1990)). In other words, the Court presumed
that “the people” refers to “all Americans.” Id. at 581. But
when the Supreme Court specifically analyzed
“limitation[s]” on the scope of the Second Amendment’s
protections, id. at 626-27, Heller described the Second
Amendment right as belonging to “law-abiding, responsible
citizens,” id. at 635. Bruen, in turn, used the term “law-
abiding, responsible citizens” and its variants more than a




8
  The Supreme Court in Bruen did not specify which party carries the
burden to demonstrate whether the Second Amendment presumptively
protects the proposed course of conduct of the party invoking the Second
Amendment’s protections. We need not decide that issue here because
our conclusion that the Second Amendment presumptively protects
Fencl and Perez-Garcia’s proposed course of conduct would stand
regardless of which party in this case carried the burden on this issue.
                         USA V. PEREZ-GARCIA                             21


dozen times when describing the Second Amendment’s
scope. 9 The concurrences reiterated the same point. 10
    As then-Judge Barrett explained while dissenting in
Kanter v. Barr, some courts read the Supreme Court’s
Second Amendment caselaw to mean that there are certain
groups of people—for example, violent felons or the
mentally ill—“who fall entirely outside the Second
Amendment’s scope,” meaning that they do not fall within
even the plain text of the Amendment. 

(7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen,

. 11 Other courts instead “maintain that all

9
  See Bruen, 

 (“law-abiding, adult citizens”); 

(“law-abiding, responsible citizens”) (quotation omitted); 

 (“a
law-abiding citizen’s right to armed self-defense”); 

 (“law-
abiding citizens”); 

 (“ordinary, law-abiding, adult citizens”); 

at 33 n.8 (“law-abiding citizens”); 

 (“law-abiding citizens”); 

at 38 n.9 (“law-abiding, responsible citizens” and “ordinary citizens”)
(quotations omitted); 

 (“the responsible”) (quotation omitted);

 (“responsible arms carrying”); 

 (“law-abiding citizens”);

 (“law-abiding, responsible citizens”); 

 (“law-abiding
citizens”).
10
    See Bruen, 

 (Alito, J., concurring) (“law-abiding
residents”); 

 (“law-abiding citizens” and “[o]rdinary citizens”);

 (“law-abiding person”); 

 (“right of law-abiding people,”
“law-abiding New Yorker,” and “ordinary person”); 

 (“ordinary
law-abiding Americans”); 

 (Kavanaugh, J., concurring)
(“ordinary, law-abiding citizens”) (quotation omitted).
11
  See, e.g., Medina v. Whitaker, 

 (D.C. Cir. 2019) (“On
balance, the historical evidence and the Supreme Court’s discussion of
felon disarmament laws leads us to reject the argument that non-
dangerous felons have a right to bear arms.”); Binderup v. Att’y Gen.,

 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in
part and concurring in the judgments) (“[T]he Founders understood that
not everyone possessed Second Amendment rights. These appeals
22                        USA V. PEREZ-GARCIA


people have the right to keep and bear arms but that history
and tradition support Congress’s power to strip certain
groups of that right.” 

 12
    In Fencl’s case, both the magistrate judge and the district
court followed the first approach and held that Fencl is not a
responsible, law-abiding citizen because he was “charged
with unlawful possession of firearms based on a finding of
probable cause.” Under this view, Fencl “falls outside the
scope” of the Second Amendment. Similarly, the magistrate
judge in Perez-Garcia’s case denied his request, in part, on
the ground that he is not a law-abiding citizen because there
is probable cause to believe that he committed a crime.
    Although Appellants are pretrial releasees, they remain
members of the national community—that is, they fall
within the plain meaning of “the people”—and they are
therefore not without the ability to invoke their constitutional
right. See Heller, 

. The Bail Reform Act’s
firearm prohibition is a condition of pretrial release, so it
only applies to those who have been charged but not yet
convicted. While we recognize that well-founded criminal
accusations can, pursuant to adequate procedural
protections, result in limitations on individual rights, see
Salerno, 

, it is quite another matter
to say that a criminal defendant loses his or her ability to
even challenge the condition itself under the Second


require us to decide who count among ‘the people’ entitled to keep and
bear arms.”), abrogated on other grounds by Bruen, 

.
12
   See, e.g., United States v. Rahimi, 

 (5th Cir.), cert.
granted, 

 (2023); Range v. Att’y Gen., 

(3d Cir. 2023) (en banc) (“[W]e reject the Government’s contention that
only ‘law-abiding, responsible citizens’ are counted among ‘the people’
protected by the Second Amendment.”).
                    USA V. PEREZ-GARCIA                   23


Amendment. After all, even convicted persons serving their
sentences enjoy freedoms of speech and religion under the
First and Fourteenth Amendments, as well as equal
protection and due process protection. See Bell, 

. In our view, to allow the government to exclude an
entire group of individuals from “the people” through mere
accusation would be, at minimum, inconsistent with the
presumption of innocence. See Scott, 

(“Defendant is, after all, constitutionally presumed to be
innocent pending trial, and innocence can only raise an
inference of innocence, not of guilt.”).
    As to Fencl, specifically, we cannot conclude that his
prior misdemeanor conviction or arrests should operate to
categorically exclude him from the national community.
While the Supreme Court has identified a longstanding
tradition of prohibiting convicted felons from possessing
guns, it has never suggested that felons are not among “the
people” within the plain meaning of the Second
Amendment, nor has it said anything at all about the rights
of misdemeanants or arrestees. See McDonald, 

 (“We made it clear in Heller that our holding did not
cast doubt on such longstanding regulatory measures as
‘prohibitions on the possession of firearms by felons.’”
(emphasis added) (quoting Heller, 

)). We
have already held that at least one group of
misdemeanants—specifically,          domestic        violence
misdemeanants—is “entitled to some measure of Second
Amendment protection.” Chovan, 

 (citation
omitted), abrogated on other grounds by Bruen, 

; see also United States v. Chester, 

 (4th
Cir. 2010) (assuming that a domestic violence
misdemeanant’s “Second Amendment rights are intact”),
abrogated on other grounds by Bruen, 

. We
24                  USA V. PEREZ-GARCIA


therefore conclude that Fencl and Perez-Garcia are among
“the people” within the meaning of the Second
Amendment’s “bare text.” Bruen, 

 n.11.
    We next ask whether the Second Amendment
presumptively protects Appellants’ proposed course of
conduct. It does. Fencl wanted to carry guns to protect his
home and for self-defense when he traveled out of state for
work. Perez-Garcia wanted to carry guns so that he could
pursue employment as an armed security officer and protect
his family. Their requests track the core constitutional right
to possess a handgun for self-defense inside and outside the
home, as defined by Heller and Bruen, respectively. See
Bruen, 

.
    The Second Amendment may not protect Fencl’s right to
bear or keep “dangerous and unusual weapons,” which
might include ghost guns or silencers or armor-piercing
ammunition. Heller, 

 (citation omitted).
Heller made clear—and Bruen affirmed—that the
presumptive protections of the Second Amendment may be
rebutted as to arms not “‘in common use’ today for self-
defense.” Bruen, 

 (quoting Heller, 

). But we need not decide this issue because the
challenged condition restricts Fencl’s ability to bear or keep
any firearm—even those he would lawfully store at home for
self-defense—and therefore unquestionably implicates his
Second Amendment rights. Accordingly, we conclude that
the Second Amendment presumptively protects Appellants’
proposed course of conduct.
                             B.
    Because we conclude that the Second Amendment
presumptively protects Appellants’ proposed course of
conduct while awaiting trial for their criminal charges, the
                     USA V. PEREZ-GARCIA                    25


Government bears the burden of proving that application of
the Bail Reform Act’s firearm condition to them is consistent
with our nation’s “historical tradition of firearm regulation.”
Bruen, 

.
    At the second prong of the Bruen framework, the central
question is whether the modern regulation is “relevantly
similar” to historical laws and traditions, 

 (citation
omitted), so as to “evince[] a comparable tradition of
regulation,” 

. Bruen emphasized that we must
uphold a modern regulation if the government identifies a
“well-established and representative historical analogue.”

 (emphasis omitted). The government does not have
to identify “a historical twin.” 

 (emphasis omitted). “So
even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to
pass constitutional muster.” 

    The “central” consideration in this analysis is whether,
when compared to a modern regulation, the historical
precedent imposed a “comparable burden” on the right of
armed self-defense and was “comparably justified.” 

 (emphasis omitted and citation omitted). In other words,
both the modern regulation and the historical precedent must
align as to “how and why [they] burden a law-abiding
citizen’s right to armed self-defense.” 

    Here, the Government contends that the Bail Reform
Act’s firearm condition, as applied to Fencl and Perez-
Garcia, is consistent with how and why our nation has
historically disarmed criminal defendants facing serious
charges while awaiting trial and, more generally, those who
are not law-abiding, responsible citizens. We agree for the
reasons provided below.
26                       USA V. PEREZ-GARCIA


                                    1.
    We begin with how and why the Bail Reform Act’s
firearm condition burdens Appellants’ Second Amendment
rights. The firearm condition imposes a heavy burden on
Appellants’ rights to bear arms because it prohibits them
from possessing or attempting to possess any firearm. On
the other hand, the firearm condition is a temporary one,
lasting only through the pendency of trial, see 

(a), and the condition is imposed only upon
individualized consideration by a judicial officer. 

 13 So
in Bruen’s terms, “how” the regulation burdens Appellants'
Second Amendment rights is through a complete, albeit
temporary and individually tailored, prohibition on the right
to bear arms.
    As to the “why,” we can readily discern the purpose
behind the firearm condition based on the plain text of the
Bail Reform Act. The Act authorizes imposition of a firearm
condition only if it is among the least restrictive ways to
“reasonably assure the appearance of the person as required
and the safety of any other person and the community.” 

§ 3142(c)(1)(B). Public safety is the foremost consideration

13
   Appellants dispute that the Bail Reform Act’s firearm condition is
narrowly applied in the Southern District of California at large. They
claim that judges in the district “virtually never strike the condition” and
say their “review of over 150 release orders identified just one, a Social
Security fraud misdemeanor, without the condition.” But Appellants
contend only that the firearm condition is unconstitutional as applied to
them and therefore seek only a modification of their pretrial release
conditions. We do not take up the question whether the firearm condition
may theoretically be applied to others because “[a]n as-applied challenge
does not implicate the enforcement of the law against third parties.” Foti
v. City of Menlo Park, 

 (9th Cir. 1998). And
Appellants do not dispute that their firearm conditions were imposed
only after individualized review.
                     USA V. PEREZ-GARCIA                     27


behind such a condition, but it is not difficult to imagine that
risk of flight could also play a role in its imposition. See
Salerno, 

. Having understood how and why
the Bail Reform Act’s firearm condition burdens Fencl’s and
Perez-Garcia’s Second Amendment rights, we next move to
the Government’s proffered historical precedent.
                              2.
    The Government first contends that application of the
Bail Reform Act’s firearm condition on Appellants is
justified by our nation’s history of disarming criminal
defendants facing serious charges pending trial. Based on
our historical review, we agree that our society has
traditionally subjected criminal defendants to temporary
restrictions on their liberty—including restrictions that
affect their ability to keep and bear arms—to protect public
safety and to ensure defendants’ attendance at trial. As we
explain below, the combination of separate but related
founding era practices supports this conclusion: (1) most
serious crimes were eligible for capital charges; (2) the
government had the power to detain, and usually did detain,
defendants indicted on capital charges; and (3) once
detained, criminal defendants were completely disarmed.
The Bail Reform Act’s firearm condition as applied to Fencl
and Perez-Garcia fits within this historical tradition of
firearm regulation.
    The goal of Bruen’s analogical exercise is to use history
to “delimit[] the outer bounds of the right to keep and bear
arms.” 

. For that purpose, Bruen explained,
“not all history is created equal.” 

. Emphasizing
that the right codified in the Second Amendment was a “pre-
existing right,” the Court saw particular relevance in
“English history dating from the late 1600s, along with
28                       USA V. PEREZ-GARCIA


American colonial views leading up to the founding.” 

 (emphasis omitted) (quoting Heller, 

).
The Bruen court also found post-ratification practices from
the late 18th and early 19th centuries as bearing on this
question. See id. at 35-36. We focus on sources from those
same historical time periods.
     Since the Founding, the government has been
empowered to detain criminal defendants while they await
trial. See U.S. Const. amend. V (providing that a person may
be “held to answer for a capital, or otherwise infamous
crime . . . on a presentment or indictment of a Grand Jury”);
Act of Sep. 24, 1789, ch. XX § 33, 

, 91 (“[F]or any
crime or offence against the United States, the offender
may . . . be arrested, and imprisoned.”). 14 Pretrial detention
in the founding era involved total disarmament. As one 19th
century state Supreme Court justice observed, “[p]ersons
accused of a crime, upon their arrest, have constantly been
divested of their arms, without the legality of the act having
ever been questioned.” State v. Buzzard, 

(1842) (opinion of Ringo, C.J.); see also United States v.
Rahimi, 

 (5th Cir.) (Ho, J., concurring)
(“Arrest and incarceration naturally entail the loss of a wide
range of liberties—including the loss of access to
weapons.”), cert. granted, 

 (2023); Don B.
Kates, Jr., Handgun Prohibition and the Original Meaning
of the Second Amendment, 

, 266 (1983)
(“We may presume that persons confined in gaols awaiting



14
  Indeed, detention pending trial, in the basic form it exists today, dates
to the Assize of Clarendon issued by King Henry II in 1166. See
generally William F. Duker, The Right to Bail: A Historical Inquiry, 

, 44-45 (1977).
                     USA V. PEREZ-GARCIA                     29


trial on criminal charges were . . . debarred from the
possession of arms.”).
     Not everyone facing criminal charges was subject to
pretrial detention, to be sure. Bail, or pretrial release, also
has deep historical roots. But pretrial release was far rarer
in the founding era than it is today because the founding
generation generally did not allow defendants facing capital
charges to be released pending trial, and most serious
criminal acts and felonies constituted capital offenses. The
first Congress, for example, made bail available in all
criminal cases “except where the punishment may be death.”
See Act of Sep. 24, 1789, ch. XX, § 33, 

, 91. Many
early state constitutions similarly provided an affirmative
right to pretrial release except for those accused of “capital”
crimes. See, e.g., Pa. Const. ch. ii, § 28 (1776) (“All
prisoners shall be bailable by sufficient sureties, unless for
capital offences, when proof is evident, or presumption
great.”); N.C. Const. Art. XXXIX (1776); Vt. Const. ch. II,
§ 25 (1777); An Ordinance for the Government of the
Territory of the United States Northwest of the River Ohio
(1787) § 14, art. 2, 2 Laws of the United States of America
559, 564 (1797); cf. 4 William Blackstone, Commentaries
*294 (“[I]n felonies, and other offences of a capital nature,
no bail can be a security equivalent to the actual custody of
the person.”).
    As early state court decisions show, this practice
continued after the Second Amendment was ratified. See
State v. Hill, 

, 246 (S.C. Const. App. 1812)
(opinion of Smith, J.) (“The general rule is, not to admit to
bail after bill found, in capital cases.”); People v. Tinder, 

 (1862) (“An indictment for a capital offense
furnishes of itself a presumption of the guilt of the defendant
too great to entitle him to bail as matter of right under the
30                   USA V. PEREZ-GARCIA


Constitution, or as matter of discretion under the legislation
of the State.”).
    Importantly, “capital crimes” in the founding era
encompassed a broad set of offenses. Most serious crimes
and felonies were eligible for capital charges because “death
was the standard penalty for all serious crimes at the time of
the founding.” Bucklew v. Precythe, 

(2019) (internal quotation marks omitted). In the pre-
Revolutionary era, Blackstone explained the English
practice this way: “[t]he idea of felony is indeed so generally
connected with that of capital punishment, that we find it
hard to separate them.”              4 William Blackstone,
Commentaries *98.
    The Founders shared a similar understanding. At the
time of the Second Amendment’s ratification, for example,
nonviolent crimes such as forgery and horse theft were
capital offenses. See Medina v. Whitaker, 

(D.C. Cir. 2019) (citing Stuart Banner, The Death Penalty:
An American History 23 (2002) (describing the escape
attempts of men condemned to die for forgery and horse theft
in Georgia between 1790 and 1805)). The First Congress
imposed capital punishment for crimes such as “forgery of
United States securities” and “running away with a ship or
vessel, or any goods or merchandise to the value of fifty
dollars.” Harmelin v. Michigan, 

(1991) (opinion of Scalia, J.) (quoting An Act for the
Punishment of Certain Crimes Against the United States,
Chap. IX, § 8, 

, 114 (1790)) (cleaned up). In sum,
the historical record evinces a historical tradition of
complete disarmament of criminal defendants facing serious
or felony charges pending trial.
                    USA V. PEREZ-GARCIA                   31


    Bruen next requires us to consider whether our nation’s
history and tradition of disarming criminal defendants facing
serious charges pending trial is “relevantly similar” to the
Bail Reform Act’s pretrial release firearm condition as
applied to Appellants. Bruen, 

 (citation
omitted). Again, both regulations must align as to “how and
why [they] burden a law-abiding citizen’s right to armed
self-defense.” 

    We conclude that the Bail Reform Act’s pretrial release
firearm condition as applied to Appellants is “relevantly
similar” to the founding era tradition of disarming criminal
defendants facing serious crimes so as to “evince[] a
comparable tradition of regulation.” 

 (citation
omitted).      First, the historical tradition of pretrial
disarmament imposed “a comparable burden” on
defendants’ Second Amendment rights as the Bail Reform
Act’s firearm condition imposes on Appellants today. 

. Both the modern restriction and its historical precursor
allow for complete but temporary disarmament on a narrow
subset of the population: criminal defendants awaiting trial
for their alleged, serious crimes. Second, both the modern
and historical regulations are “comparably justified.” 

Like the Bail Reform Act’s firearm condition, the historical
justifications for pretrial detention and disarmament have
long included protecting the public from future criminal acts
of the accused defendant. Compare A. Highmore, A Digest
of the Doctrine of Bail: In Civil and Criminal Cases, vii
(1783) (explaining that pretrial detention in the late 18th
century ensured that “the safety of the people should be
preserved against the lawless depredations of atrocious
offenders”), with Salerno, 

 (noting that the
purpose of the Bail Reform Act was to respond to “the
alarming problem of crimes committed by persons on
32                   USA V. PEREZ-GARCIA


release,” and holding that the Government has a
“compelling” and “heightened” interest in preventing crime
and arrestees from presenting a “demonstrable danger to the
community” (citation omitted)). Both the “how” and the
“why” match.
    Appellants disagree. They do not dispute the well-
established historical tradition of pretrial detention, nor that
detained individuals accused of serious crimes were
completely disarmed in the founding era. They argue instead
that the “institution of pretrial detention” fails to provide the
appropriate analogy here because they were granted pretrial
release. In their view, the Government must provide
examples of pre-20th century “courts or legislatures
restricting pretrial releasees’ arms rights” and has failed to
do so.
     Appellants’ arguments fail to persuade for two reasons.
First, they assume that because they were granted pretrial
release today, they would have been released pending their
trials in the founding era. The historical evidence before us
does not support that assumption. As we have explained,
defendants in the founding era who faced serious charges
were not released because those indicted on capital charges
were not offered bail, and most felonies were capital
offenses. See Baze v. Rees, 

 (2008) (Thomas,
J., concurring) (highlighting the “ubiquity of the death
penalty in the founding era” and noting that it was “the
standard penalty for all serious crimes” in the late 18th
century (quoting Banner, supra, at 23)). Appellants have not
pointed to any evidence in the historical record to rebut the
Government’s showing that criminal defendants facing
capital or otherwise serious crimes were not eligible for
pretrial release and were therefore detained and disarmed.
See Territory v. Benoit, 

 (Orleans
                         USA V. PEREZ-GARCIA                           33


1810) (“Bail is never allowed in offences punishable by
death, when the proof is evident or the presumption
great. . . . We recollect no case in which it was done.”).
    Appellants undoubtedly were charged with serious
crimes. Fencl was charged with seven felony counts, each
punishable by up to ten years’ imprisonment. See 

. Perez-Garcia was charged with two felony
counts of importing approximately eleven kilograms of
methamphetamine and half a kilogram of fentanyl in
violation of 

, 960. Each of those counts is
punishable by up to ten years’ imprisonment. See 

(b)(1). Felonies in the founding era “were—and
remain—the most serious category of crime deemed by the
legislature.” Medina, 

. Because Appellants
faced serious felony charges, the premise that they would
have been released in the founding era is belied by the
historical record. See Tennessee v. Garner, 

(1985) (explaining that in the founding era “virtually all
felonies were punishable by death”).
    Today, of course, pretrial release is far more common.
That is mainly because of successful reforms beginning in
the 1960s that resulted in a dramatic decrease in the
percentage of defendants detained before trial. See Timothy
R. Schnacke et al., The History of Bail and Pretrial Release,
Pretrial J. Inst. 11-16 (2010). 15 And we no longer subject
people to capital punishment for, say, horse theft. See
Medina, 

 (describing how penalties for many

15
    See also John S. Goldkamp, Danger and Detention: A Second
Generation of Bail Reform, 

, 12 (1985).
In 1962, for example, only about half of felony defendants across 20
cities secured pretrial release; by 1971, the percentage had risen to two-
thirds. See Wayne H. Thomas, Bail Reform in America 32, 37-38 (1976).
34                  USA V. PEREZ-GARCIA


felony offenses became less severe in the decades following
American independence). That Appellants are eligible for
pretrial release today, however, does not undermine the
historical evidence that similarly situated criminal
defendants in the founding era would not have been released
and would have instead been disarmed. As an initial matter,
then, Appellants’ reasoning fails on its own terms.
    Second, and more fundamentally, Appellants’ mode of
historical analysis rests on a flawed premise. They presume
that if the Government cannot identify a historical regulation
under which Perez-Garcia and Fencl, specifically, would
have been disarmed pending pretrial release in the 18th
century, then the Second Amendment forbids such
regulation today. They are mistaken. The Second
Amendment does not require the Government to identify an
18th century law that is a “dead ringer” for the modern
pretrial release regime that materialized in the 1960s. Bruen,

. Rather, analogical reasoning under Bruen
“requires only that the government identify a well-
established and representative historical analogue, not a
historical twin.” 

 (emphasis in original). Having
established that the firearm condition as applied to
Appellants is consistent with our nation’s tradition of
disarming criminal defendants charged with serious crimes
pending trial, the Government need not go further and dig up
an 18th century law under which Fencl and Perez-Garcia,
specifically, would have been disarmed while awaiting trial
for crimes like unlawful possession of unlicensed silencers
or importing methamphetamine and fentanyl.
   Bruen repeatedly made this point. For example, the
Court surveyed the historical record and found “relatively
few 18th- and 19th-century ‘sensitive places’ where
weapons were altogether prohibited,” like legislative
                    USA V. PEREZ-GARCIA                   35


assemblies, polling places, and courthouses. 

 But modern
legislatures are not limited to regulating guns in only those
sensitive places. Instead, the Second Amendment allows
“modern regulations prohibiting the carry of firearms in new
and analogous sensitive places.” 

 (emphasis in original).
Similarly, the Supreme Court has maintained that the Second
Amendment “presumptively” allows Congress to disarm
persons convicted of felony offenses, see Heller, 

 & n.26; McDonald, 

, even though the
first federal law disarming felons dates to 1938, see Federal
Firearms Act, 

ch. 850, § 2(d)-(f ), 

, 1251 (1938). And while legislatures may prohibit
“dangerous and unusual weapons,” in applying that principle
courts must analyze whether particular weapons are
dangerous and unusual today, not whether they were
widespread in the founding era. See Bruen, 

(“Whatever the likelihood that handguns were considered
‘dangerous and unusual’ during the colonial period, they are
indisputably in ‘common use’ for self-defense today.”).
    The common-sense principle underscored by the
Supreme Court is that the Constitution does not impose a
“regulatory straightjacket” on our modern society. 

.
In this case, history shows that we have a tradition of
disarming criminal defendants facing serious charges
pending trial.       The historical tradition of pretrial
disarmament allows legislatures to disarm people who are
facing serious charges today, regardless of whether laws
disarming those same exact persons happened to exist in the
founding era. The Government has proven that Fencl’s and
Perez-Garcia’s temporary disarmament is justified by that
historical tradition. That is all that the Second Amendment
requires.
36                  USA V. PEREZ-GARCIA


                              3.
     The Government also contends that the Bail Reform
Act’s firearm condition is further justified by our nation’s
history of barring people or groups deemed dangerous or
unlikely to respect the sovereign’s authority from possessing
firearms. Our review of the historical record similarly
reveals a lengthy and extensive Anglo-American tradition of
disarming individuals who are not law-abiding, responsible
citizens. In particular, the historical record reflects that
legislatures have long disarmed groups or individuals whose
possession of firearms would pose an unusual danger,
beyond the ordinary citizen, to themselves or others. This
historical tradition provides a separate ground in support of
the Government’s position.
    As Bruen requires, we begin by analyzing the
Government’s proffered historical tradition. And because
the Second Amendment “codified a right ‘inherited from our
English ancestors,’” we start in 17th century England.
Heller, 

 (citation omitted). Parliament first
recognized a legal right to possess arms in the 1688-89
English Bill of Rights, which guaranteed rights to keep and
bear arms “as allowed by Law.” An Act Declaring the
Rights and Liberties of the Subject and Settling the
Succession of the Crowne (“1688-89 English Bill of
Rights”), 1 W. & M., Sess. 2, ch. 2, § 7, in 6 Statutes of the
Realm 142-45 (Eng. 1688) (emphasis added). The Bill
recited that King James II, who had been deposed in the
Glorious Revolution, had disarmed “severall good subjects
being Protestants.” Id. While the Bill of Rights condemned
the disarming of “good subjects,” it allowed the disarming
of irresponsible ones. It did not displace the Militia Act of
1662, which authorized local officials to disarm individuals
they judged “dangerous to the Peace of the Kingdom.”
                      USA V. PEREZ-GARCIA                        37


Militia Act 1662, 13 & 14 Car. 2, c. 3, § 13. Use of the
Militia Act provisions allowing search and seizure of
weapons from disaffected persons “continued unabated”
after the adoption of the 1688-89 English Bill of Rights. See
Diarmuid F. O’Scannlain, Glorious Revolution to American
Revolution: The English Origin of the Right to Keep and
Bear Arms, 

, 405 (2019).
    Importantly, this English tradition of lawful
disarmament coexisted with the fundamental right to keep
and bear arms. Although the English Bill of Rights secured
a right to possess arms, the government could—and did—
disarm those who could not be trusted to use arms lawfully
and responsibly. Because the English right “has long been
understood to be the predecessor to our Second
Amendment,” Heller, 

, this background
supports the view that the Second Amendment also
empowers Congress to authorize the disarming of
individuals who are not law-abiding, responsible citizens.
    Similar laws and restrictions appeared in the American
colonies, adapted to our own contemporary fears and
perceived threats. For example, Catholics in the Maryland,
Virginia, and Pennsylvania colonies were disarmed because
of perceived disloyalty to the government and disrespect for
the sovereign’s laws. See Joseph G.S. Greenlee, The
Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 

, 263 (2020). 16
As the Revolutionary War approached, Connecticut,
Massachusetts, Pennsylvania, New Jersey, Virginia, and

16
  “Virginia exempted from disarmament anyone willing to take an oath
of allegiance to King George III,” and its disarmament excepted
“necessary weapons . . . for the defence of . . . house or person.”
Greenlee, supra, at 263 (citation omitted).
38                  USA V. PEREZ-GARCIA


North Carolina all enacted disarmament laws targeting the
disloyal and those that could not be trusted to respect the
sovereign’s authority. Id. at 263-65. “The justification was
always that those being disarmed were dangerous.” Id. at
265; see also NRA v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 

 (5th Cir. 2012) (“American
legislators had determined that permitting [those who
refused to swear an oath of allegiance] to keep and bear arms
posed a potential danger.”), abrogated by Bruen, 

.
    Other early American laws, meanwhile, called for case-
by-case judgments and disarmed individuals for particular
types of conduct. Inspired by England’s 1328 Statute of
Northampton, Massachusetts Bay in 1692, New Hampshire
in 1759, and Massachusetts in 1795 forbade carrying arms
in an aggressive and terrifying manner. Greenlee, supra, at
262. For example, “[c]olonial Massachusetts and New
Hampshire both authorized justices of the peace to arrest all
Affrayers, Rioters, Disturbers, or Breakers of the Peace, and
such as shall ride or go armed Offensively . . . by Night or
by Day, in Fear or Affray of Their Majesties Liege People.”
See Bruen, 

 (quoting 1692 Mass. Acts and
Laws no. 6, pp. 11-12 and 1699 N.H. Acts and Laws ch. 1).
Similarly, “[a] 1736 Virginia legal manual allowed for
confiscation of arms, providing that a constable ‘may take
away Arms from such who ride, or go, offensively armed, in
Terror of the People’ and may bring the person and their
arms before a Justice of the Peace.” Greenlee, supra, at 262
(quoting George Webb, The Office of Authority of a Justice
of Peace 92-93 (1736)). A New Jersey law empowered
officials to “take from such Persons as they shall judge
disaffected and dangerous to the present Government, all the
Arms, Accoutrements and Ammunition which they own or
                    USA V. PEREZ-GARCIA                   39


possess.” Act for Constituting a Council of Safety, ch. 40,
§ 20, 

.
     Precursors to the Second Amendment proposed in state
ratifying conventions also suggest that the founding
generation believed legislatures could disarm individuals
deemed dangerous or unlikely to follow the sovereign’s
laws. At the Massachusetts ratifying convention, Samuel
Adams, who opposed ratifying the Constitution without a
declaration of rights, proposed providing that Congress may
not “prevent the people of the United States, who are
peaceable citizens, from keeping their own arms.” 2
Bernard Schwartz, The Bill of Rights: A Documentary
History 675, 681 (1971) (emphasis added). “Adams’s
proposal was celebrated by his supporters as ultimately
becoming the Second Amendment.” Greenlee, supra, at
266. “For example, an editorial in the Boston Independent
Chronicle called for the paper to republish Adams’s
proposed amendments alongside Madison’s proposed Bill of
Rights, ‘in order that they may be compared together,’ to
show that every one of Adams’s intended alterations but one
. . . was adopted.” Id. (alterations adopted) (quoting
Editorial, Boston Independent Chronicle, Aug. 20, 1789, at
2, col. 2)).
    In Pennsylvania, Anti-Federalist delegates—who were
adamant supporters of a declaration of fundamental rights—
proposed that the people should have a right to bear arms
“unless for crimes committed, or real danger of public injury
from individuals.” Schwartz, supra, at 665 (emphasis
added). As Justice Scalia noted in Heller, this was a “highly
influential” proposal. 

. While neither
proposal was adopted exactly as written, they reflect an
expansive understanding in the founding era of the scope of
legislatures’ power to disarm, particularly among those who
40                  USA V. PEREZ-GARCIA


most strongly favored enshrining the right to armed self-
defense in the Constitution.
    Post-ratification practice points in the same direction.
Antebellum commentators shared the founding generation’s
understanding of the Second Amendment’s scope. John
Holmes, a legal scholar from Maine, interpreted the Second
Amendment and its state counterpart to mean that a “free
citizen, if he demeans himself peaceably, is not to be
disarmed.” John Holmes, The Statesman, or Principles of
Legislation and Law 186 (1840) (emphasis added). “Thus
are the rights of self defence guarded and secured,” he added,
“to every one who entitles himself by his demeanor to the
protection of his country.” 

 (emphasis added). And a state
convention in Rhode Island resolved that the Second
Amendment forbade “taking from peaceable citizens their
arms.” State Convention of the Suffrage men of Rhode
Island, Vermont Gazette, Dec. 13, 1842, at 1.
    As the Supreme Court explained in Bruen, many states
also enacted surety statutes in the mid-19th century requiring
“those threatening to do harm” to “post bond before carrying
weapons in public.” Bruen, 

; see, e.g., Mass.
Rev. Stat. ch. 134, § 16, 750 (1836); Me. Rev. Stat. ch. 169,
§ 16, 709 (1840); Mich. Rev. Stat. ch. 162, § 16, 692 (1846).
These statutes demonstrate that individuals who were
“reasonably accused of intending to injure another or breach
the peace” could properly be subject to moderate firearm
restrictions that did not apply to others. Bruen, 

.
    In sum, the Anglo-American right to keep and bear arms
for self-defense has always coexisted with legislative
authority to disarm groups or individuals whose possession
of firearms would pose an unusual danger, beyond the
                         USA V. PEREZ-GARCIA                            41


ordinary citizen, to themselves or others. Or, as now-Justice
Barrett put it, “founding-era legislatures categorically
disarmed groups whom they judged to be a threat to the
public safety.” Kanter, 

 (Barrett, J.,
dissenting). 17
   We conclude that the Bail Reform Act’s firearm
condition as applied to Fencl and Perez-Garcia fits within the
Government’s proffered historical tradition of disarming
people whose possession of firearms would pose an unusual
danger, beyond the ordinary citizen, to themselves or others.
See Bruen, 

.
    First, the Bail Reform Act’s firearm condition is a clear
exercise of Congress’ historical legislative power to disarm
those who are “judged to be a threat to the public safety.”
Kanter, 

 (Barrett, J., dissenting). As
discussed, Congress passed the Bail Reform Act to respond
to “the alarming problem of crimes committed by persons on
release.” Salerno, 

 (citation omitted). The
purpose of the statute was to give courts authority to make
release decisions that recognize “the danger a person may
pose to others if released.” 

 (citation omitted). And the


17
   To the extent that “courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth Amendment
was ratified in 1868,” we note that post-Civil War practice reinforced
this historical understanding. Bruen, 

. In 1866, for
example, a federal Reconstruction order applicable to South Carolina
provided that “[t]he constitutional rights of all loyal and well-disposed
inhabitants to bear arms will not be infringed,” but that “no disorderly
person, vagrant, or disturber of the peace, shall be allowed to bear arms.”
Cong. Globe, 39th Cong., 1st Sess. 908-09 (1866). The Freedman’s
Bureau issued a circular around the same time that explained that a
person “may be disarmed if convicted of making an improper or
dangerous use of weapons.” Bruen, 

 (quotation omitted).
42                   USA V. PEREZ-GARCIA


Act authorizes federal courts to release defendants awaiting
trial subject to specific conditions that “protect the
community from the risk of crimes [they] might commit
while on bail.” Scott, 

. Moreover, the plain
text of the Bail Reform Act provides that the firearm
condition may be imposed only if it is among the least
restrictive ways to “reasonably assure the appearance of the
person as required and the safety of any other person and the
community.” 

(c)(1)(B). The Bail Reform
Act’s firearm condition is thus specifically designed to
disarm those whose possession of firearms would pose an
unusual danger to the community.
    Second, the Bail Reform Act’s firearm condition does
not broadly prevent law-abiding citizens with ordinary self-
defense needs from exercising their right to keep and bear
arms. Cf. Bruen, 

. It instead concerns only
the rights of a narrow segment of the population arrested and
charged with federal crimes. 

(a)-(b).
Congress today, like the founding era legislatures described
above, retains the power to disarm narrow segments of the
population whom it deems a threat to public safety. See
Kanter, 

 (Barrett, J., dissenting).
    Relatedly and importantly, the firearm condition at issue
here is individually tailored and applied only after
consideration by a judicial officer. 

(a).
Local officials have long disarmed those whose conduct
revealed their unfitness to access firearms. For example,
many 18th century justice-of-the-peace manuals recognized
that the Militia Act authorized local officials to disarm those
they “judge[d] dangerous.” See, e.g., Robert Gardiner, The
                       USA V. PEREZ-GARCIA                       43


Compleat Constable 68 (3d ed. 1708). 18              Similarly,
American justices of the peace have long been empowered
to confiscate the arms of persons who carried them in a
manner that spread fear or terror in the community. See
Greenlee, supra, at 262 (collecting colonial era sources
authorizing the confiscation of arms by local officials for
reasons of public safety). Surety statutes also empowered
local officials to temporarily disarm specific individuals who
“threaten[ed] to do harm” or were “reasonably accused of
intending to injure another or breach the peace.” Bruen, 

. In short, regulations that authorize
disarmament only after individualized findings of
dangerousness by public officials are within the heartland of
legislative power to disarm those who are not law-abiding,
responsible citizens.
    The Government in this case acted in accordance with
this historical tradition. The Government established an
individualized need for applying the firearm condition
against each Appellant in adversarial proceedings before two
sets of neutral judicial officers. Those neutral judicial
officers determined based on the evidence presented that
Appellants posed a risk while on bail and that the firearm
condition was the least restrictive way to assure the safety of
the community as well as their appearances in court.
    The record amply supports the judicial officers’
decisions to temporarily disarm Appellants. As to Fencl,
officers found more than 100 firearms in his house, including

18
   See also Giles Jacob, The Modern Justice 338 (2d ed. 1717); W.
Nelson, The Office and Authority of a Justice of Peace 9-10 (7th ed.
1721); G. Jacob, Lex Constitutionis 331 (1719); Theodore Barlow, The
Justice of Peace 367 (1745); 2 Joseph Shaw, The Practical Justice of
Peace, and Parish and Ward Officer 231 (6th ed. 1756).
44                  USA V. PEREZ-GARCIA


“ghost guns,” thousands of rounds of ammunition, armor-
piercing bullets, incendiary rounds, and even a tear-gas
grenade. Fencl had previously been convicted for unlawful
possession of a concealed gun without a license and arrested
for possession of a privately made ghost gun. The district
court appropriately reviewed Fencl’s stockpile and his
propensity to violate gun laws and deemed him dangerous
enough to temporarily bar him from possessing firearms
pending his trial. As for Perez-Garcia, the district court
found that the “nature of the charges and weight of the
evidence supports a conclusion that Defendant is a danger to
others” because he was apprehended in a vehicle containing
approximately eleven kilograms of methamphetamine and
half a kilogram of fentanyl when it arrived at the port of
entry. The district court’s “equation of [wide-scale] drug
trafficking with dangerousness to the community” in this
particular case has “a reasonable basis in common
experience.” See United States v. Strong, 

(3d Cir. 1985) (as amended). By disarming both Fencl and
Perez-Garcia after individualized findings of dangerousness,
the Government acted consistent with its traditional
regulatory authority.
    Finally, we note that the firearm condition only
temporarily infringed on Fencl’s and Perez-Garcia’s right to
keep and bear arms. Temporary disarmaments are well-
precedented. Parliament, for example, allowed Catholics
who “repeated and subscribed” to the necessary oath to
rearm. 1 W. & M., Sess. 1, ch. 15, § 3, in 6 Statutes of the
Realm 71-73 (Eng. 1688). Virginia gave Catholics the same
choice. See Nicholas J. Johnson et al., Firearms Law and
the Second Amendment: Regulation, Rights, and Policy 174
(3d ed. 2022). Nineteenth century surety statutes also show
that individuals who were “reasonably accused of intending
                    USA V. PEREZ-GARCIA                    45


to injure another or breach the peace” could properly be
subject to temporary firearm restrictions that did not apply
to others. Bruen, 

. Similarly here, both Fencl
and Perez-Garcia were temporarily disarmed pending trial
for their serious charges.
    Appellants reject the Government’s proffered historical
tradition. They note that the “loyalty oath” statutes were
primarily adopted at the height of the American Revolution
and argue that “[r]egulations limited to times of ‘turmoil’
and ‘rebellion’ shed little light on the Second Amendment.”
They find the affray statutes prohibiting bearing arms in a
way that spreads fear or terror in the community inapt
because those statutes did not encroach on the right to keep
arms at home. And they claim the surety statutes “were too
few and too late to constitute a founding-era ‘tradition.’”
    Appellants’ divide-and-conquer approach to the
historical evidence misses the forest for the trees. In
applying the Second Amendment, we do not isolate each
historical precursor and ask if it differs from the challenged
regulation in some way. We emphasize again: Bruen does
not require the Government to identify a “historical twin” or
an 18th century “dead ringer” for the Bail Reform Act’s
firearm condition. 

 (emphasis omitted). We
instead examine the historical evidence as a whole,
determining whether it establishes a tradition of permissible
regulation (such as “dangerous and unusual weapons” or
“sensitive places”), and whether the historical precedent and
the modern regulation are “relevantly similar,” Bruen, 

 (citation omitted), so as to “evince[] a comparable
tradition of regulation,” 

.
   Moreover, although traditional firearm regulations are an
important form of historical evidence, they are not the only
46                  USA V. PEREZ-GARCIA


one. In assessing the Second Amendment’s original
meaning, we must consult “a variety of legal and other
sources,” Heller, 

, including English history,

; analogous provisions in state constitutions,

; Second Amendment precursors, 

;
commentary, 

; case law, 

;
and legislative debates, 

.
     Here, the historical evidence, when considered as a
whole, shows a long and broad history of legislatures
exercising authority to disarm people whose possession of
firearms would pose an unusual danger, beyond the ordinary
citizen, to themselves or others. See Kanter, 

(Barrett, J., dissenting). The temporary disarmament of
Fencl and Perez-Garcia as a means reasonably necessary to
protect public safety falls within that historical tradition.
                            ***
    We therefore hold that the Bail Reform Act’s firearm
condition on pretrial release is constitutional as applied to
Fencl and Perez-Garcia. Our holding is consistent with how
we have long balanced the constitutional rights of pretrial
detainees and releasees with legitimate public safety and
logistical considerations. See, e.g., Bell, 551 U.S. at 546-48
(upholding restrictions on the First, Fifth, and Fourteenth
Amendment rights of a class of pretrial detainees); Albright
v. Oliver, 

 (1994) (Ginsburg, J.,
concurring) (noting that a pretrial releasee must “seek formal
permission from the court . . . before exercising what would
otherwise be his unquestioned right to travel outside the
jurisdiction”). And our holding is consistent with our
nation’s long history of temporarily disarming criminal
defendants facing serious charges and those deemed
dangerous or unwilling to follow the law.
                  USA V. PEREZ-GARCIA               47


  As held in our order dated January 26, 2023, we
AFFIRM. Appellants’ motion to dismiss these appeals is
DENIED.