3. Analysis: Precedents Cited
A. The governing Second Amendment framework
N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen
N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022), supplies the controlling methodology. Once the Second Amendment’s text covers the conduct, the government must demonstrate consistency with the nation’s historical tradition of firearm regulation. A modern law need not have an identical historical predecessor; a representative and sufficiently analogous tradition can suffice.
Bost organizes that inquiry around why and how the restriction burdens the right. Public safety explains why physically dangerous people may be disarmed. The harder question concerns how that objective may be pursued: through what adjudication, using what evidence, and for how long. This framework prevents a general appeal to public safety from becoming an independent substitute for historical justification.
United States v. Rahimi, 602 U.S. 680 (2024), is the principal substantive analogue. It upheld disarmament under § 922(g)(8)(C)(i), which applies when a qualifying protective order includes a judicial finding that its subject poses a credible threat to an intimate partner’s or child’s physical safety.
The Bost majority derives from United States v. Rahimi a historical principle permitting disarmament of people who pose a risk of physical violence. It then treats a qualifying violent conviction as an existing judicial determination capable of supplying that foundation without a new dangerousness hearing at the indictment stage.
The separate opinions dispute the breadth of that inference. Judge Mascott emphasizes that United States v. Rahimi approved temporary disarmament during a protective order based on a present threat. Judge Phipps likewise stresses duration, arguing that temporary historical measures cannot justify presumptively permanent disarmament after punishment has ended. Thus, the disagreement concerns not the permissibility of disarming threatening individuals, but whether an old conviction alone sufficiently establishes the relevant threat and permissible duration.
District of Columbia v. Heller and McDonald v. City of Chicago
District of Columbia v. Heller, 554 U.S. 570 (2008), recognized the individual Second Amendment right while stating that its decision should not cast doubt on longstanding prohibitions on firearm possession by felons. McDonald v. City of Chicago, 561 U.S. 742 (2010), repeated that assurance.
Judge Shwartz treats these statements, reiterated in later Supreme Court opinions, as strong support for the constitutionality of the entire statutory category. By contrast, the narrower approaches distinguish assurances of presumptive legality from a holding resolving every application, particularly permanent restrictions on people who have completed their sentences. Judge Mascott also invokes the principle that Second Amendment rights are not second-class rights to question why their post-conviction treatment should differ fundamentally from other individual liberties.
The majority cites United States v. Hemani for the possibility that prosecutors may need evidence of a special risk of firearm misuse or danger to the individual or others. The separate writings use different portions of that decision: Judge Shwartz cites Justice Alito’s reiteration of felon prohibitions’ presumptive legality, while the dissent emphasizes the need for a genuinely comparable historical mechanism.
Wolford v. Lopez appears in the separate opinions as additional support for historically grounded Second Amendment analysis and the connection between “the people” and the national political community. Neither decision is treated in Bost as conclusively resolving permanent, conviction-based disarmament.
B. Third Circuit decisions defining the conviction-based inquiry
Range v. Att'y Gen.
Range v. Att'y Gen., 124 F.4th 218 (3d Cir. 2024) (en banc), is the essential circuit precedent. It held § 922(g)(1) unconstitutional as applied to a person convicted of food-stamp fraud and established that people with qualifying convictions remain among “the people” protected by the amendment.
Bost draws particular significance from the absence in Range of evidence of violence or a crime closely associated with physical danger. Read together, the decisions reject two opposing propositions: that every qualifying conviction automatically removes Second Amendment protection, and that no conviction can independently justify disarmament.
The separate opinions also revisit earlier Range decisions. Judge Shwartz relies on her dissent in Range v. Att'y Gen., 69 F.4th 96 (3d Cir. 2023), and Judge Krause’s later concurrence to support broader legislative authority. Judge Mascott quotes Range v. Att'y Gen. (Range I), 53 F.4th 262 (3d Cir. 2022), for its condemnation of discriminatory historical classifications. These references explain the competing interpretive positions; they do not displace the operative 2024 en banc decision.
Pitsilides v. Barr, 128 F.4th 203 (3d Cir. 2025), concerned a professional gambler and contemplated additional discovery concerning dangerousness. Bost expressly revisits the relevant inquiry en banc and states that Pitsilides is no longer its touchstone.
The important change is the emphasis on the predicate conviction at the indictment stage. Bost limits an open-ended investigation into a defendant’s life where the underlying offense does not itself establish the necessary risk. The opinion should not, however, be read as overruling every aspect of Pitsilides or resolving every evidentiary question in civil restoration litigation.
Williams v. Att'y Gen.
Judge Mascott discusses Williams v. Att'y Gen., No. 24-1091, decided the same day, as a companion illustration involving an old driving-while-intoxicated conviction. Her account places Bost within a developing distinction between convictions that independently demonstrate the relevant risk and those that do not. Because the companion opinion is not reproduced, its broader rule should not be inferred beyond the description supplied here.
Williams v. Garland is cited separately for that litigation’s procedural history, illustrating how long rights-restoration disputes can remain unresolved rather than supplying Bost’s substantive constitutional standard.
United States v. Moore and related sentencing authorities
The dissent invokes United States v. Moore, 111 F.4th 266 (3d Cir. 2024), which upheld disarmament during supervised release. That case supports a distinction between restrictions imposed during an ongoing criminal sentence and restrictions on an otherwise free person after the sentence ends.
Esteras v. United States, quoting Mont v. United States, similarly describes supervised release as conditional liberty. These authorities support Judge Phipps’s proposed boundary: historically justified controls during confinement or supervision do not necessarily justify indefinite restrictions afterward.
C. Historical analogues and categorical dangerousness
Sir John Knight's Case
Through United States v. Rahimi, the court cites Sir John Knight's Case, 87 Eng. Rep. 75 (K.B. 1686), as part of the tradition of going-armed laws. Those laws addressed armed conduct that terrorized the public or threatened the peace. Their importance lies in linking disarmament to adjudicated threatening conduct, rather than merely to a disfavored identity.
The majority analogizes that concern to Bost’s conviction for intentionally terrorizing another through threatened violence. The dissent disputes the analogy’s duration, noting that forfeiture of particular weapons or imprisonment did not necessarily prohibit acquiring arms after punishment ended.
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), appears primarily through then-Judge Barrett’s dissent. Its historical discussion informs the treatment of disloyalty-based restrictions, while its distinction between civic and individual rights informs Judge Mascott’s analysis of whether felon disenfranchisement can justify firearm restrictions.
The cited dissent is persuasive reasoning, not the Seventh Circuit’s holding. Its importance here is conceptual: dangerousness may provide a stronger foundation for disarmament than generalized judgments about virtue or civic membership, while voting restrictions may not be interchangeable with restrictions on individual self-defense rights.
United States v. Jackson
Two distinct Jackson authorities must be separated. The majority cites Judge Stras’s dissent from denial of rehearing in United States v. Jackson, 85 F.4th 468 (8th Cir. 2023), for historical sources and the practical competence of judges to assess violence risks.
Judge Shwartz relies on United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024), for the broader position that legislatures may disarm categories of people who have demonstrated disregard for legal norms. The two citations therefore support competing approaches rather than one uniform Jackson rule.
United States v. Williams
United States v. Williams, 113 F.4th 637 (6th Cir. 2024), provides historical examples of categorical restrictions with opportunities for individualized relief. Judge Montgomery-Reeves uses its discussion of Loyalists to identify less constitutionally troubling comparators than racial or religious restrictions. Judge Mascott cites it for the proposition that legislatures may identify dangerous groups while leaving individuals an opportunity to show that they are not dangerous.
That Sixth Circuit framework helps explain the attraction of rebuttable presumptions. Bost nevertheless leaves its own later-stage rebuttal procedure unresolved.
State v. Hogan and Lara v. Comm'r, Pa. State Police
Section II.B cites State v. Hogan, 58 N.E. 572 (Ohio 1900), concerning restrictions on “tramps” or vagrants. The plurality treats these examples as limited assistance: they are late, entwined with exclusion from the political community, and insufficient to establish a broad founding-era power to disarm all felons.
Lara v. Comm'r, Pa. State Police, 125 F.4th 428 (3d Cir. 2025), supports caution about using post-founding laws to establish the amendment’s original meaning. Together, these authorities constrain reliance on later categorical restrictions.
Authorities supporting broader legislative classifications
Judge Shwartz identifies a substantial contrary line of circuit authority:
- Zherka v. Bondi supports § 922(g)(1) without requiring a violent or dangerous predicate.
- United States v. Hunt recognizes legislative authority to disarm people convicted of sufficiently serious offenses.
- Vincent v. Bondi rejects a constitutional exemption for nonviolent offenders.
- United States v. Jackson, 110 F.4th 1120, supports categorical disarmament based on disregard for legal norms.
These decisions demonstrate that Bost’s conviction-sensitive approach is not nationally uniform. United States v. Bullock, cited by Judge Mascott, supplies a related but distinct proposition: historical disarmament authority belongs to legislatures acting against dangerous people. United States v. Aleman-Lozano is cited by Judge Shwartz for the potentially enduring effect of allegiance-based restrictions.
D. Procedure, proof, and identification of the predicate
United States v. Bergrin
United States v. Bergrin, 650 F.3d 257 (3d Cir. 2011), performs two functions. It establishes de novo review where denial of dismissal rests entirely on legal conclusions, and it defines indictment review as a narrow inquiry designed to prevent legally deficient charges from reaching a jury.
This procedural limitation is crucial. Bost does not require the government to prove guilt or litigate every aspect of dangerousness on a motion to dismiss. It asks whether the identified predicate legally supports the prosecution under the historical framework.
Shepard v. United States
Shepard v. United States, 544 U.S. 13 (2005), supports the use of specified conviction records to identify the statutory subsection underlying Bost’s plea. Those records confirmed conviction under Pennsylvania’s provision requiring threatened violence with intent to terrorize.
The citation does not establish that Bost adopted a mandatory elements-only categorical approach for every future Second Amendment case. The court expressly reserved whether elements are necessary and whether admitted facts, jury findings, or other sufficiently supported evidence might also be considered.
United States v. Bean, 537 U.S. 71 (2002), documents the longstanding funding restrictions that disabled the § 925(c) administrative-relief process. Alongside the Sixth Circuit’s United States v. Williams, it explains why administrative restoration historically offered little practical assistance.
Bost’s independent holding is broader than that practical obstacle: a criminal defendant need not first secure administrative permission to present a constitutional defense. Although the separate opinions describe recent restoration efforts differently, none of those descriptions creates an exhaustion requirement in this prosecution.
E. Facial challenges, notice, commerce, and stolen property
United States v. Salerno
Under United States v. Salerno, 481 U.S. 739 (1987), Bost had to establish that no set of circumstances existed in which the statute could validly operate. Because the majority found § 922(g)(1) valid as applied to him, his facial challenge necessarily failed. United States v. Rahimi supplied the Second Amendment application of that demanding standard.
Even Judge Phipps rejected facial invalidity, although for a different reason: disarming people serving life imprisonment without parole supplies at least one historically justified application.
United States v. Williams and Hill v. Colorado
United States v. Williams, 553 U.S. 285 (2008), citing Hill v. Colorado, 530 U.S. 703 (2000), supplies the vagueness standard: a law must provide fair notice and avoid arbitrary enforcement. This Supreme Court Williams decision is distinct from the Sixth Circuit decision discussed above.
The majority concludes that § 922(g)(1)’s statutory prohibition is clear even if its constitutional applications require adjudication. Judge Shwartz responds that uncertainty about the judicially recognized exception still creates serious notice problems.
Her supporting authorities include Grayned v. City of Rockford, addressing fair notice, and separate writings in Binderup v. Att'y Gen. and the Range litigation. She also invokes Rehaif v. United States to identify possible knowledge-related complications. Bost does not, however, hold that knowledge of constitutional disarmability is a newly required statutory element.
United States v. Singletary
United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), forecloses Bost’s Commerce Clause objection. The court declines to disturb that precedent; it does not undertake a new analysis of Congress’s commerce power.
United States v. Gore
United States v. Gore, 118 F.4th 808 (6th Cir. 2024), rejected a facial challenge to § 922(j). Bost relies on its historical observation that firearms were not exempt from ordinary prohibitions on receiving or retaining stolen goods. Colonial stolen-property laws reinforce the conclusion that the Second Amendment does not confer a right to possess stolen property.
F. Additional authorities shaping the separate opinions
Several additional cases inform the objections without supplying the court’s governing rule:
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Discriminatory history: Espinoza v. Mont. Dep't of Revenue supports the dissent’s warning against treating historically discriminatory practices as affirmative constitutional traditions. United States v. Vazquez-Ramirez is cited through a concurrence concerning allegiance-based restrictions and their termination.
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Modern breadth and historical timing: United States v. Barton supplies the enactment history of federal firearm restrictions. A concurrence in United States v. Luna illustrates how broadly modern felony classifications extend beyond violent conduct.
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Punishment versus post-sentence disability: Separate writings in United States v. Bonner and Folajtar v. Att'y Gen. support the dissent’s refusal to equate historical execution or imprisonment with firearm restrictions imposed on a free person after punishment ends.
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Other constitutional rights: United States v. Knights and Samson v. California recognize reduced privacy expectations during probation and parole. Judge Mascott uses them to ask what justifies continued restrictions after supervision ends, rather than to establish a direct Second Amendment rule.
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Voting and civic rights: Hawkins v. Youngkin, whose certiorari proceedings are identified as Hawkins v. Spanberger, and Richardson v. Ramirez concern permissible felon disenfranchisement. Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania helps distinguish civil from political rights. Judge Mascott treats the analogy between voting restrictions and firearm restrictions as contestable, not conclusive.
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Burdens of criminal litigation: Young v. U.S. ex rel. Vuitton et Fils S.A. describes the disruption caused by criminal investigation and adjudication. Nat'l Shooting Sports Found. v. Att'y Gen. of N.J., citing Susan B. Anthony List v. Driehaus, supports access to pre-enforcement review where its requirements are satisfied.
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Judicial power and statutory reconstruction: Separate writings in United States v. Arthrex, Inc. and Seila L. LLC v. Consumer Fin. Prot. Bureau, the latter discussing United States v. Booker, underpin Judge Mascott’s concern that courts should resolve individual constitutional applications rather than redesign statutory categories.
4. Legal Reasoning
A. A conviction can supply individualized adjudication without a new hearing
The majority’s central move reconciles an individualized historical tradition with a conviction-based modern statute. Historical going-armed and surety procedures required an adjudicated basis for fearing physical violence. A conviction for an offense containing violent or threatening elements already provides a judicially established foundation of that kind.
Accordingly, individualized adjudication does not necessarily require a separate present-dangerousness hearing before a § 922(g)(1) indictment can proceed. The prior conviction can do the relevant work, provided the offense itself establishes the necessary risk.
This does not mean that the predicate offense must have involved a firearm. The majority expressly includes unarmed forcible rape among potentially sufficient predicates. Its inference runs from demonstrated violence or threats to the risk of violence through firearm misuse, not from a requirement of previous gun misuse.
B. The government bears the initial justificatory burden
Because the Second Amendment covers the defendant and the possession at issue, the government must justify disarmament. It cannot satisfy that obligation simply by identifying a qualifying statutory conviction and assuming that every such conviction proves dangerousness.
For a sufficiently violent or threatening offense, however, the conviction itself meets the government’s burden at this preliminary stage. Bost’s applicable terroristic-threats provision did so because it necessarily involved threatened criminal violence intended to terrorize another person.
The court’s refusal to permit a “fishing expedition” is the corresponding protection for defendants whose predicates do not establish the necessary risk. Their obligation is not to prove general harmlessness merely because they have a qualifying conviction. The government must present a different historical analogy.
C. The offense spectrum is deliberately incomplete
The court identifies two relatively clear ends of a spectrum. Common-law murder, forcible rape, and common-law robbery illustrate qualifying violent conduct; Range’s food-stamp fraud illustrates an offense that does not independently establish physical dangerousness.
Between those ends may lie offenses that facilitate violence without directly requiring violent acts. Their treatment remains unresolved and depends on their own historical analogies. The opinion therefore does not decide whether drug distribution, every conspiracy offense, or other indirectly risky conduct is sufficient.
Nor does the decision establish that every state offense labeled “terroristic threats” qualifies. Its reasoning rests on the elements of Bost’s particular statutory subsection. Judge Mascott’s example of a state provision encompassing threats of property damage reinforces the danger of relying on labels alone.
D. Presumptive sufficiency is not a resolved lifetime-disarmament rule
The majority repeatedly limits its holding to an early procedural stage. It expressly declines to decide what could later remove someone from the category initially established by a violent conviction.
That reservation is important because duration is part of the historical inquiry. The opinion recognizes duration as relevant but does not comprehensively explain when a decades-old conviction ceases to justify disarmament, whether rehabilitation must be considered, or what procedure would govern a later challenge.
The separate opinions expose this unresolved issue. Their descriptions of the statute as permanently disarming do not convert the majority’s prima facie holding into an express determination that every qualifying restriction must remain constitutional for life.
5. The Separate Opinions
Judge Shwartz: The entire statutory category is constitutional
Joined by Judges Krause and Restrepo, Judge Shwartz agrees with affirmance but rejects the majority’s limiting rule. She would uphold § 922(g)(1) for all qualifying offenders based on Supreme Court assurances and historical legislative authority.
Her practical criticism is that the majority introduces uncertainty into an otherwise clear statutory prohibition. She questions how individuals and judges should classify offenses, whether offense elements or conviction facts control, and why evidence of actual dangerousness outside the predicate should be excluded. Her hypothetical involving bank fraud, firearms, and a “hit list” illustrates the perceived gap between predicate-based classification and an individual’s real-world danger.
Judge Montgomery-Reeves: The result does not require discriminatory comparators
Judge Montgomery-Reeves joins the majority except Section II.B. She questions whether repugnant laws targeting racial or religious groups are legitimate inputs into the historical analysis. In her view, less constitutionally infirm examples adequately support the conclusion that dangerous individuals could be disarmed and later regain their arms through an individualized process.
Her position narrows the historical foundation without rejecting the conviction-based outcome.
Judge Mascott: Uphold only the application to Bost’s individual record
Judge Mascott joins Parts I, II.A, and IV and concurs in the judgment. She would rely on Bost’s individual history, including continued unlawful and threatening circumstances, rather than announce a general presumption applicable to an offense category.
Her objections concern present dangerousness, the age of convictions, the burdens of criminal litigation, and the judiciary’s institutional role. She questions whether classifying constitutionally disarming offenses amounts to reconstructing Congress’s statute rather than deciding the particular controversy.
Her fact-specific rationale is distinct from the majority’s. The majority finds the predicate sufficient without relying on Bost’s broader subsequent record.
Judge Phipps: Presumptively permanent disarmament lacks a historical analogue
Joined by Judge Bove, Judge Phipps would find § 922(g)(1) unconstitutional as applied to Bost after completion of his punishment. He accepts that confinement and supervision can justify restrictions but rejects the analogy between those temporary restraints and presumptively permanent disarmament of free people.
He also rejects administrative restoration as a complete answer. A possible exemption does not, in his view, establish a historical tradition supporting the initial lifelong disability. Moreover, the restoration process was unavailable when Bost possessed the firearm.
The dissent nonetheless agrees that the statute survives a facial challenge because constitutionally permissible applications exist.