Introduction

This published decision from the U.S. Court of Appeals for the Tenth Circuit addresses a core post-Bruen question: can the government temporarily restrict an indicted person from receiving a firearm without an individualized judicial finding of dangerousness? The court answers yes. Anchoring its analysis in founding-era practices surrounding pretrial detention and bail, the court holds that 18 U.S.C. § 922(n)—which prohibits individuals under indictment for crimes punishable by more than one year from receiving, shipping, or transporting firearms—is facially constitutional under the Second Amendment.

The case involves Alexander Jon Ogilvie, who was federally indicted after several firearm-related incidents in Utah. He moved to dismiss the federal indictment on Second Amendment grounds, arguing § 922(n) is inconsistent with the nation’s historical tradition as required by New York State Rifle & Pistol Association v. Bruen. The district court denied the motion. Ogilvie pleaded guilty conditionally to preserve the issue for appeal. The Tenth Circuit affirms, aligning with the Fifth and Sixth Circuits, and clarifies that individualized determinations are not constitutionally required in this context because categorical pretrial disarmament of accused persons has a robust founding-era pedigree.

Summary of the Judgment

• Holding: Section 922(n) is facially constitutional. It is consistent with the nation’s historical tradition of firearm regulation because founding-era pretrial detention and bail regimes temporarily disarmed accused persons, often categorically for serious or capital offenses.
• Bruen Framework: The court assumes without deciding that the Second Amendment’s text covers an indicted individual’s receipt of a firearm (step one). At step two, the government meets its burden by identifying a “well-established and representative historical analogue”—pretrial detention and bail—that is relevantly similar in both burden (“how”) and justification (“why”).
• Burden Comparison (“how”): Section 922(n) imposes a temporary and limited restriction (only between indictment and trial; only on receipt, shipping, and transporting). Founding-era pretrial detention imposed a greater burden—total loss of liberty and complete disarmament—often categorically.
• Justification Comparison (“why”): Section 922(n) addresses public safety risks uniquely acute post-indictment (e.g., witness intimidation, evidence tampering). Founding-era detention and bail likewise served public safety objectives alongside ensuring appearance.
• Individualized Findings Not Required: Contrary to defendant’s reading of United States v. Rahimi, the court explains that Bruen/Rahimi do not impose a universal, across-the-board requirement for individualized dangerousness findings before disarmament. The pretrial detention analogue supported categorical disarmament of accused persons for serious offenses at the founding.
• Facial vs. As-Applied: Because this is a facial challenge, the statute survives if it is constitutional in some applications. The concurrence underscores that as-applied challenges may refine the doctrine further (e.g., what counts as a “serious” offense).

Background

Factual Background

Ogilvie, adjudicated delinquent at age sixteen for shooting in the direction of a person (rendering him a Category I “restricted person” under Utah law), continued to possess and use firearms. In 2022, despite his restricted status, he was found with a Glock 19 and, on the day of arraignment, purchased a Taurus handgun. In October 2022, after reports of gunfire, police found him with the Taurus; he admitted firing approximately six shots toward a group.

Procedural Posture

A federal grand jury indicted him under § 922(n) based on his receipt of the Taurus handgun while under state felony indictment (for possession of a weapon by a restricted person). He moved to dismiss the federal indictment under the Second Amendment. The district court denied the motion, finding § 922(n) consistent with historical tradition (citing dangerousness disarmament laws and surety laws). He entered a conditional guilty plea, preserving the constitutional issue for appeal. The district court imposed a 21-month sentence. He appealed.

Standard of Review

• Denial of a motion to dismiss an indictment: abuse of discretion (legal error is per se abuse).
• Constitutionality of a federal statute: de novo review.
• Facial challenge standard: the statute stands if constitutional in some applications; the challenger must show no set of circumstances in which the statute is valid (Rahimi).

Analysis

Bruen Step One: Assumed Coverage

The court assumes without deciding that the Second Amendment’s plain text covers an indicted person’s receipt of a firearm, noting the government did not contest step one on appeal. This approach mirrors other circuits (e.g., Sixth Circuit in United States v. Gore and Williams) that treat “the people” to include even felons, leading a fortiori to coverage of indictees. The Tenth Circuit does not resolve that question, choosing to affirm at step two.

Bruen Step Two: A “Relevantly Similar” Historical Analogue

Under Bruen and Rahimi, the government must identify a “well-established and representative historical analogue,” focusing on two metrics of similarity: how the law burdens the right and why it does so. The Tenth Circuit identifies founding-era pretrial detention and bail practices as the analogue supporting § 922(n).

How: Comparable Burden

• Section 922(n)’s burden: Temporary and limited. It applies only between indictment and trial and only prohibits receiving, shipping, or transporting firearms in interstate or foreign commerce. It does not prohibit mere possession of firearms already lawfully possessed before indictment (subject to other applicable laws or conditions of release).
• Founding-era pretrial detention: Imposed total deprivation of liberty and complete disarmament of accused persons. Importantly, many jurisdictions applied this categorically for “serious” or “capital” offenses and, in practice, the lack of sureties meant many defendants could not access bail and were jailed (and thus disarmed).
• Bottom line: The founding-era burden was greater. Under Bruen/Rahimi, a modern regulation may permissibly impose a lesser burden than its historical analogue and still be consistent with tradition.

Why: Comparable Justification

• Section 922(n)’s purpose: Public safety in the sensitive post-indictment interval, including risks of witness tampering, intimidation, destruction of evidence, and enabling further crimes.
• Founding-era justification: Pretrial detention and bail were designed not only to ensure appearance but also to protect the community; “good behavior” and “keeping the peace” were standard bail conditions. Historically, preventive detention and restraint played a central role in pretrial proceedings at the founding.

Response to Defense Arguments

• Individualized dangerousness findings: The court rejects the argument that Rahimi imposes a universal requirement for individualized judicial dangerousness determinations prior to disarmament. Rahimi dealt with § 922(g)(8), surety laws, and going-armed laws; it also expressly disclaimed reading the Second Amendment to bar categorical disarmament of groups deemed dangerous by legislatures. The pretrial detention analogue itself was often categorical.
• Comparisons to modern Bail Reform Act conditions: Ogilvie’s reliance on 18 U.S.C. § 3142 is misplaced; Bruen instructs courts to look to founding-era tradition, not contemporary statutes, to calibrate the analogue. The Ninth Circuit’s Perez-Garcia, addressing firearm conditions under § 3142, is thus of limited relevance.

Precedents and Authorities Cited and Their Influence

• District of Columbia v. Heller (2008): Recognized an individual right to keep and bear arms; underscored that the right has limits and repeatedly refers to “law-abiding” citizens.
• New York State Rifle & Pistol Ass’n v. Bruen (2022): Established the current two-step test—textual coverage and historical tradition—and the “relevantly similar” analysis focusing on “how” and “why.” Emphasized analogues need not be historical twins.
• United States v. Rahimi (2024): Upheld § 922(g)(8) and clarified that modern regulations may track founding-era justifications without mirroring them. Crucially, Rahimi disavowed a per se ban on categorical disarmament by legislatures.
• United States v. Gore (6th Cir. 2024) and United States v. Quiroz (5th Cir. 2025): Sister-circuit decisions holding § 922(n) facially constitutional on similar reasoning; the Tenth Circuit’s analysis closely tracks these rulings.
• United States v. Holden (7th Cir. 2023): Dicta suggesting a facial challenge to § 922(n) would likely fail; not dispositive but consonant with the trend.
• Vincent v. Bondi (10th Cir. 2025): The Tenth Circuit reaffirmed § 922(g)(1) under circuit precedent (McCane), illustrating a pragmatic, precedent-aware approach post-Bruen/Rahimi even as other circuits re-ran the Bruen analysis.
• Founding-era sources: Treatises (Blackstone; Chitty), state cases (e.g., Mills, Tinder, Buzzard), and historical scholarship (Funk & Mayson’s Bail at the Founding) establish the ubiquity and public-safety orientation of pretrial detention/bail and the practical reality of categorical detention (and disarmament) for serious crimes.

Concurring Opinion: Guardrails and Future Litigation

Judge Tymkovich concurs to emphasize the modesty of the holding and the nature of a facial challenge. The decisive historical principle is that the founding generation accepted categorical, pretrial, complete disarmament for accused persons charged with “serious crimes.” Because § 922(n) is less burdensome and the challenge is facial, the statute survives. Questions about what counts as “serious,” how the analogy may fail at the margins, or whether certain applications raise different concerns are reserved for future as-applied challenges.

Impact and Implications

Immediate Effects

• Enforcement of § 922(n) across the Tenth Circuit: Federal prosecutions may continue to charge indictees who receive, ship, or transport firearms post-indictment. The decision aligns the Tenth Circuit with the Fifth and Sixth Circuits, contributing to an emerging consensus.
• No constitutional requirement for individualized dangerousness findings: Legislatures may impose temporary, categorical disarmament tied to indictment for serious crimes without bespoke dangerousness determinations, consistent with founding-era practice.
• Scope of the restriction: The prohibition is temporary (indictment to trial) and limited (receipt, shipping, transporting). It does not itself criminalize continuing possession of pre-indictment firearms, though other laws (state restrictions, conditions of release under the Bail Reform Act, or other federal prohibitions) may apply.

Doctrinal Significance

• Validation of “pretrial detention” as a robust analogue: The decision confirms that founding-era detention and bail practices are a powerful analogue for modern, temporary disarmament measures, even when those measures are categorical.
• Bruen’s “how and why” test in action: The opinion shows how courts can uphold new regulations by demonstrating lesser burdens than historical comparators and analogous public-safety justifications.
• Rahimi’s bounds: The court clarifies that Rahimi’s reference to individualized processes in surety/going-armed contexts does not translate into a universal individualized-dangerousness mandate for all modern firearm restrictions.

Open Questions for Future Litigation

• What is a “serious crime”? Founding-era categories did not map neatly onto modern felony definitions. As-applied challenges may argue lack of a tight fit for specific offenses.
• Duration concerns: Extremely prolonged pretrial periods might alter the “how” calculus and invite as-applied challenges.
• Charging instruments: Section 922(n) covers indictments and informations; whether the analogue extends identically to both may be explored in future cases.
• Overlap with release conditions: While § 922(n) stands on its own footing, courts will continue to set firearm conditions under § 3142; interactions between statutory bans and bail conditions may be tested in edge cases.
• Step-one boundaries: The Tenth Circuit assumed coverage. Future cases may directly resolve whether and when indictees fall within “the people” for various Second Amendment questions.

Complex Concepts Simplified

• Facial vs. as-applied challenge: A facial challenge asks whether a law is unconstitutional in all its applications; it fails if the law is valid even in some circumstances. An as-applied challenge contests the law’s constitutionality as applied to a particular person or set of facts.
• Indictment and information: An “indictment” is a formal charge by a grand jury. Section 922(n) defines “indictment” to include an “information,” which is a formal prosecutorial charge without a grand jury.
• What § 922(n) prohibits: It forbids an indicted person from receiving, shipping, or transporting firearms or ammunition that have moved in interstate or foreign commerce. It does not, by its terms, ban mere possession of firearms already lawfully possessed prior to indictment, though other laws or court-ordered conditions may do so.
• Bruen’s “how and why” test: To justify a modern firearm regulation, the government must show a “relevantly similar” historical analogue by comparing (1) how the law burdens the right (the degree and nature of the restriction) and (2) why the law burdens the right (its justification, typically public safety or similar concerns).
• Historical analogue vs. historical twin: Courts look for comparable historical practices, not exact replicas. A modern law may be upheld if it is consistent with the principles underlying historical regulations, even if the mechanisms differ.
• Pretrial detention and sureties at the founding: Many jurisdictions categorically detained those accused of serious or capital crimes; others permitted bail but often required sureties and “good behavior” commitments, effectively disarming the accused during the pretrial period.

Conclusion

United States v. Ogilvie marks a significant post-Bruen development in Second Amendment jurisprudence. The Tenth Circuit joins the Fifth and Sixth Circuits in holding that § 922(n)’s temporary, limited bar on receiving, shipping, and transporting firearms by indicted persons is facially constitutional because it is “relevantly similar” to founding-era practices of pretrial detention and bail that routinely resulted in pretrial disarmament—often categorically for serious offenses.

The court’s opinion clarifies that Rahimi does not impose a universal individualized-dangerousness requirement across all firearm restrictions, especially where founding-era analogues reflect categorical pretrial disarmament. At the same time, the concurrence prudently signals that as-applied challenges will continue to refine the doctrine’s boundaries—particularly regarding what counts as a “serious” crime, the duration of restrictions, and fit with modern charging practices.

The decision’s broader significance lies in its disciplined application of Bruen’s “how and why” framework and its careful use of historical sources, including contemporary scholarship, to find harmony—not conflict—between modern public-safety regulations and the original understanding of the right to keep and bear arms.