Bruen Step One Is Textual; Surety-Law Tradition Permits Temporary Disarmament of Felony Indictees: United States v. Jackson (4th Cir. 2025)

Introduction

In United States v. Brandon Glen Jackson, the Fourth Circuit upheld a conviction under 18 U.S.C. § 922(n), which makes it unlawful for a person under felony indictment to ship, transport, or receive a firearm in interstate commerce. The panel (Chief Judge Diaz, joined by Judges Wynn and Thacker) addressed whether applying § 922(n) to Jackson—who traveled across state lines with a handgun while under an Arizona felony indictment for possessing a prohibited short-barreled rifle—violated the Second Amendment.

The case presents two central questions under the Supreme Court’s text-and-history framework from New York State Rifle & Pistol Association v. Bruen: (1) whether Jackson’s conduct is covered by the Second Amendment’s plain text; and if so, (2) whether § 922(n), as applied to him, is consistent with the Nation’s historical tradition of firearm regulation. The court answered “yes” to the first and “yes” to the second—though on a narrower track than other circuits that have sustained § 922(n) by relying on founding-era bail practices. The Fourth Circuit instead anchored its holding in the surety-law tradition (as reconfirmed in United States v. Rahimi) and in its own recent “dangerous persons” precedents (United States v. Hunt; United States v. Gould).

Summary of the Opinion

Step One (Text): The court held that Jackson’s conduct—traveling with his handgun across state lines—falls within the Second Amendment’s plain text. By retaining the firearm “in his custody” while traveling, Jackson “kept” arms in the constitutional sense. The court declined the government’s invitation to treat “shipping/transporting” as categorically outside the “keep and bear” rights; as-applied challenges focus on the actual course of conduct.
Step Two (History): The government bore the burden to justify § 922(n) as consistent with historical tradition. The court evaluated three proposed analogies:
- Pretrial detention/bail: Not relied upon here; the record did not sufficiently show that founding-era detention was designed to prevent future crimes in the manner § 922(n) is.
- Surety laws: A strong match. Like historical surety regimes, § 922(n) imposes temporary, process-based, and targeted restraints to prevent harm—in particular where a person is accused of possessing dangerous weapons.
- Dangerous-persons tradition: Fourth Circuit precedent (Hunt, reaffirmed in Gould) recognizes legislative authority to disarm categories of persons based on proxies of dangerousness. “Felony indictment” is such a proxy; § 922(n) is also narrower and more temporary than the lifetime felon-in-possession ban.
Holding: The conviction is affirmed. Jackson’s conduct is protected by the Second Amendment, but § 922(n) is constitutional as applied to him under historical analogues, especially surety laws, and under the Fourth Circuit’s “dangerous persons” jurisprudence.

Analysis

1) Precedents and Authorities Cited and How They Matter

District of Columbia v. Heller (2008): Defines “keep” as possess and “bear” as carry for confrontation. The court uses these definitions to conclude that traveling with a firearm is covered conduct; Jackson “kept” his gun by retaining custody during travel.
New York State Rifle & Pistol Ass’n v. Bruen (2022): Establishes the text-and-history test and clarifies that if the plain text covers the conduct, the government must justify the regulation by historical tradition. The court underscores Bruen’s emphasis that at step two, courts look to “why and how” a regulation burdens the right.
United States v. Rahimi (2024): Reaffirms analogical reasoning, focusing on “why and how,” upholding disarmament of individuals under domestic-violence restraining orders. The Fourth Circuit relies heavily on Rahimi’s treatment of surety laws—time-limited, preventive regimes triggered by reasonable cause—to analogize § 922(n) to established historical practice.
United States v. Price (4th Cir. en banc 2024): Articulates the step-one inquiry as asking whether (a) the challenger is one of “the people,” (b) the weapon is in common use for lawful purposes, and (c) the proposed course of conduct is covered by “keep” or “bear.” The court applies this structure and finds step one satisfied.
Bianchi v. Brown (4th Cir. en banc 2024): Emphasizes careful attention to the historical scope of the right. Jackson reconciles this by placing historically grounded limitations where Bruen places them—at step two—not by importing free-floating historical constraints into the threshold textual inquiry.
Md. Shall Issue, Inc. v. Moore (4th Cir. en banc 2024): Confirms that at step two the government carries the burden to justify the regulation by historical tradition.
United States v. Hunt (4th Cir. 2024) and United States v. Gould (4th Cir. 2025): Sustain status-based disarmament (felon-in-possession) under historical traditions allowing legislatures to disarm categories deemed potentially dangerous. Jackson leverages Hunt/Gould to uphold § 922(n) as an even narrower, time-limited proxy for dangerousness.
United States v. Quiroz (5th Cir. 2025) and United States v. Gore (6th Cir. 2024): Both uphold § 922(n), heavily relying on the bail/pretrial detention tradition. Jackson diverges by declining to rest the holding on bail history (given the record), instead grounding the result in surety laws and dangerous-persons precedent.
Founding-era and early-American sources on bail and surety: United States v. Hamilton (1795); the Aaron Burr trial (1807); People v. Tinder (Cal. 1862); State v. Mills (N.C. 1830); and treatises (Coke, Highmore, Chitty, Petersdorff). These are canvassed to show (i) that post-indictment detention in capital cases was common but (ii) often oriented to evidence of guilt, not forward-looking dangerousness—weakening the bail-as-analogue argument here.
B & L Products v. Newsom (9th Cir. 2024): Mentioned for the “ancillary rights” concept; Jackson does not resolve whether the Second Amendment protects such rights beyond keeping and bearing.
Range v. Attorney General (3d Cir. en banc 2024): Cited in discussing differences between historic capital crimes and modern felonies; the Fourth Circuit expressly does not resolve that analogy.

2) The Court’s Legal Reasoning

Step One: A Purely Textual Threshold

The Fourth Circuit took a disciplined approach to Bruen step one. It refused to let historical limitations overwhelm the threshold textual inquiry. The question is whether Jackson’s specific conduct falls within “keep” or “bear.” The answer: yes. He placed his own handgun in his car and retained it while crossing state lines; that is “keeping” under Heller. The government’s attempt to reframe the conduct as the abstract “shipping/transporting” of a firearm fails because step one is as-applied and conduct-specific.

Notably, the court cautions against importing “a free-floating inquiry into the historical scope of firearms rights” at step one. Historical limits matter, but they belong at step two where the government bears the burden. This clarification maintains the structure and allocation of proof Bruen mandates.

Step Two: Historical Analogues—“Why and How” Are Central

Bruen and Rahimi instruct courts to compare “why and how” the modern law burdens the Second Amendment with the “why and how” of historical regulations targeting similar problems.

Section 922(n)’s burden (“how”): Temporary disarmament (on pain of criminal sanction) of indicted persons in a narrow way—prohibiting shipping, transporting, or receiving firearms/ammunition in interstate commerce—while allowing continued possession of preexisting arms and intrastate carry (subject to state law).
Section 922(n)’s rationale (“why”): Preventive—keeping firearms out of the hands of those credibly suspected (by grand jury indictment) of serious wrongdoing, and especially those who might misuse them. The legislative history from 1938 forward consistently reflects a purpose to reduce violent crime by restricting firearms access for persons posing heightened risk.

(a) Bail/Pretrial Detention Tradition — Not the Basis of the Holding Here

Two circuits (Fifth and Sixth) have analogized § 922(n) to founding-era practices of mandatory post-indictment detention in capital cases. The Fourth Circuit canvassed the landscape of “common-law” and “dissenter” bail models and the evolution of post-indictment constraints. It acknowledged that the “how” (detention) is undoubtedly a greater restraint than § 922(n)’s temporary disarmament. But on this record, the court was unpersuaded that the “why” matched—i.e., that founding-era detention was embraced primarily to prevent future crimes rather than as a corollary of the strength of the evidence of guilt and to secure appearance.

The opinion carefully leaves room for a different record in a future case, but declines to rest this decision on bail history here. It also rejects a speculative “judicial process integrity” rationale not grounded in statute or legislative history.

(b) Surety Laws — A Strong Historical Analogue

Historically, surety regimes allowed magistrates—on reasonable cause—to require bonds (or, failing that, to jail) individuals suspected of threatening harm or misusing weapons. The court identifies four strong points of analogy:

Triggering conduct: Like historical “going armed” or dangerous weapon provisions, Jackson’s indictment alleged unlawful possession of a particularly dangerous weapon (a short-barreled rifle), and he then traveled with a handgun while under that felony indictment.
Process: Surety decisions often rested on ex parte probable cause before a neutral decisionmaker. Likewise, § 922(n) follows a grand jury’s probable cause finding. While some surety regimes contemplated later adversarial processes, the initial restraint could be imposed on the magistrate’s reasonable cause determination—which the grand jury analogue satisfies.
Time-boundedness: Historical surety restraints were time-limited (often six months); § 922(n) lasts only so long as the indictment is pending. Although Jackson was under indictment for roughly 30 months across two indictments, the court judges that duration comparable to the two-year period sustained in Rahimi and not excessive in principle.
Severity of burden: Surety laws and related “going armed” laws could lead to imprisonment for those unable to post bond or who breached the peace, a far harsher restraint than § 922(n)’s partial and temporary disarmament. By the greater-includes-the-lesser logic reaffirmed in Rahimi, § 922(n) comfortably fits within that tradition.

Given that both the “why” (prevention of harm) and the “how” (temporary, process-based restraints targeting individuals credibly suspected of misuse) align, the surety tradition suffices to uphold § 922(n) as applied to Jackson.

(c) Dangerous-Persons Tradition — Fourth Circuit Precedent as an Independent Ground

Separately, the court invokes Fourth Circuit precedent (Hunt, reaffirmed in Gould) recognizing historical authority to impose status-based disarmament on categories of persons deemed potentially dangerous, even using proxies and even when not every member of the category is in fact dangerous. If Congress may impose the lifetime felon-in-possession bar (§ 922(g)(1)) under this tradition, it may certainly impose the more modest, time-limited restriction of § 922(n) during the pendency of a felony indictment—an inferior proxy for dangerousness compared to a conviction but paired with a significantly lighter burden.

Jackson’s attempt to dismiss Hunt’s historical analysis as dicta fails. The court explains that Hunt’s historical holdings were true alternative holdings; as such, they are binding in this circuit.

3) The Opinion’s Doctrinal Contributions and Clarifications

Bruen Step One Clarified: In the Fourth Circuit, step one remains a textual inquiry into whether the challenger’s actual course of conduct falls within “keep and bear.” Historical limitations on the scope of who may exercise the right or under what circumstances are addressed at step two, where the government bears the burden.
Surety-Law Grounding for § 922(n): The court provides a detailed, structured analogical analysis—trigger, process, time, severity—that other courts can emulate for as-applied challenges involving indictees, especially those indicted for weapons-related offenses or offenses signaling risk of misuse.
Dangerous-Persons Precedent Reaffirmed: Hunt and Gould supply an independent basis to sustain temporary disarmament of indictees as a permissible, categorical proxy for dangerousness under historical tradition.

Impact

Immediate Effects in the Fourth Circuit

As-Applied Challenges to § 922(n): Defendants under indictment, particularly for weapons offenses or other crimes suggesting heightened risk of misuse, face an uphill battle. Jackson confirms that § 922(n) is constitutional as applied in such contexts.
Government’s Litigation Strategy: Within the Fourth Circuit, the government need not rely on bail/detention analogies to defend § 922(n). Surety-law tradition and the dangerous-persons line (Hunt/Gould) offer robust justifications. However, if the government does rely on bail history, it must substantiate the preventive rationale with historical evidence.
Step One Discipline: Litigants should frame the conduct precisely; courts will examine whether that conduct is “keeping” or “bearing” without front-loading historical constraints. This keeps the step-two burden squarely on the government.

Broader Doctrinal and Practical Implications

Convergence with Rahimi: Jackson operationalizes Rahimi’s “why/how” analogical method and endorses surety-law reasoning for modern, time-limited firearm disabilities tied to credible risk assessments (indictments, restraining orders).
Limits and Open Questions:
- Facial Challenges to § 922(n) remain undecided. The court notes some conduct captured by § 922(n) (e.g., mailing a crated gun) may fall outside “keep” or “bear,” but Jackson pressed only an as-applied challenge.
- Ancillary Rights: Whether the Second Amendment protects ancillary rights necessary to keeping/bearing (e.g., certain types of interim transport) is left open.
- Bail History: On a fuller record, bail/detention might, in some contexts, support § 922(n). Jackson simply declines to rely on that thread here.
- Indictment Duration: The court accepts multi-year indictments as still “time-limited” when compared to Rahimi and historical practice. How far that can extend remains case-specific.
Practical Compliance: Individuals under indictment can generally continue to possess pre-indictment firearms intrastate but may not ship, transport across state lines, or receive firearms/ammunition. State laws (e.g., licensing and carry restrictions) remain independently enforceable.

Complex Concepts Simplified

As-Applied vs. Facial Challenges:
- As-applied: The law is challenged as unconstitutional in the specific circumstances of the defendant’s conduct. Jackson is such a challenge.
- Facial: The law is unconstitutional in all or most applications. Jackson did not bring a facial challenge.
Bruen’s Two Steps:
- Step One: Is the conduct within the plain text of “keep and bear arms”?
- Step Two: If so, does the government show a historical tradition of similar regulations—focusing on why and how the burden is imposed?
Surety Laws: Historical mechanisms allowing magistrates, upon reasonable cause, to require individuals suspected of threatening harm to post a bond for good behavior; failure to post could mean jail. Often used to prevent violence, including misuse of firearms; typically time-limited.
“Dangerous Persons” Tradition: Historical practice of disarming categories of people deemed to pose risks (as a class), even if not every member is actually dangerous. Modern analogues include status-based bans (like § 922(g)(1) for felons), which Fourth Circuit precedent sustains.
Grand Jury Indictment: A finding of probable cause by a body of citizens that a person committed a felony. In Jackson, this functioned as a procedural predicate for temporary, targeted disarmament under § 922(n).
“Why and How” Analysis: A method of analogical reasoning asking (a) why the regulation exists (its purpose) and (b) how it burdens the right (its mechanisms and severity) compared to historical precedents.

Conclusion

United States v. Jackson provides two notable holdings for Second Amendment jurisprudence in the Fourth Circuit. First, it clarifies that Bruen’s step-one inquiry is textual and conduct-specific: traveling with one’s own gun across state lines constitutes “keeping” arms. Historical constraints on the right are evaluated at step two, preserving Bruen’s allocation of the burden to the government. Second, on step two, the court grounds the constitutionality of § 922(n) as applied to Jackson in the surety-law tradition (as explained in Rahimi) and in the dangerous-persons doctrine reaffirmed by Fourth Circuit precedent (Hunt and Gould). In doing so, Jackson offers a careful and replicable analytical framework—examining the trigger, process, duration, and severity of the burden—that will shape future as-applied Second Amendment challenges in the circuit.

Key takeaway: Temporary, targeted disarmament of felony indictees, especially those credibly accused of unlawful possession of dangerous weapons, is consistent with the Nation’s historical tradition of firearm regulation and does not violate the Second Amendment as applied. The Fourth Circuit’s emphasis on a textual step-one and rigorous, purpose-and-means analogies at step two will guide courts and litigants navigating the post-Bruen landscape.