United States v. James Bost

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 24-1719

UNITED STATES OF AMERICA

v.

JAMES BOST,

Appellant _____________________________ On Appeal from the U.S. District Court, W.D. Pa. Judge Christy Criswell Wiegand, No. 2:21-cr-00030-001 Before: CHAGARES, Chief Judge, HARDIMAN, SHWARTZ,

KRAUSE, RESTREPO, BIBAS, PORTER, MATEY,

PHIPPS, FREEMAN, MONTGOMERY-REEVES, BOVE, MASCOTT, and FISHER, Circuit Judges Argued Before Merits Panel: Apr. 9, 2025; Reargued En Banc: Feb. 11, 2026; Filed: Oct. 13, 2026 _____________________________

OPINION OF THE COURT

BIBAS, Circuit Judge, filed the Opinion of the Court except as to Section II.B, with whom CHAGARES, Chief Judge, and HARDIMAN, PORTER, MATEY, FREEMAN, and FISHER, Circuit Judges, join; with whom MONTGOMERY-REEVES, Circuit Judge, joins except as to Section II.B; and with whom MAS- COTT, Circuit Judge, joins Part I, Section II.A, and Part IV.

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The right to keep and bear arms has limits, and this is one:

Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns. He moved to dismiss the charge, arguing that this law is unconstitutional both facially and as applied to him. But Bost's violent conviction is prima facie enough to dis- arm him. We hold that some predicate crimes (like Bost's con- viction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone. Because the Second Amendment does not protect Bost's access to guns, we will AFFIRM.

I. BOST'S PRIOR CRIME AND FELON-IN-POSSESSION CONVICTION A. Years after carjacking, Bost is caught with a gun

In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, scream- ing for help. Bost was then arrested and pleaded guilty to ter- roristic threats and criminal conspiracy (as well as false impris- onment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. 18 Pa. Cons. Stat. §§ 2706, 905(a), 1104(1). One element of the terroristic-threats crime required "a threat

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to commit any crime of violence with intent to terrorize another."

Id. § 2706(a)(1) (cleaned up). Bost was sentenced to four years' probation.

Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). 18 U.S.C. § 922(g)(1) (the so-called felon-in-possession law), (j) (posses- sion of a stolen gun). He moved to dismiss the indictment, arguing that § 922(g)(1) is unconstitutional as applied to him and that it is facially unconstitutional.

The District Court denied Bost's motion. It reasoned that his conviction for terroristic threats sufficed to show that he could not be trusted with a gun. And it rejected his facial chal- lenge because he could not show that § 922(g)(1) is unconsti- tutional in every case. He then pleaded guilty, reserving his right to appeal his Second Amendment challenges. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court's denial de novo, as it rested entirely on legal conclusions. United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011).

B. Though Bost did not exhaust administrative relief, he did not have to

Bost did not pursue administrative relief before bringing this appeal, but that makes no difference. A statute authorizes

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the Attorney General to restore gun rights to felons who show that they are not dangerous. 18 U.S.C. § 925(c). But that pro- cess has long lain dormant. For decades, Congress refused to fund it. United States v. Williams, 113 F.4th 637, 661 (6th Cir. 2024); United States v. Bean, 537 U.S. 71, 74-75 & n.3 (2002). And even though the Attorney General has at last promulgated final regulations, the process has not yet resumed. In any event, we know of no other context in which a criminal defend- ant must first seek administrative permission before raising a constitutional defense in his criminal prosecution. We will not invent such a requirement here.

II. HISTORICALLY, BEFORE DISARMING SOMEONE,

COURTS HAD TO MAKE AN INDIVIDUALIZED FINDING

THAT HE POSED A RISK OF VIOLENCE

The Second Amendment secures the right of "the people"

to "keep and bear Arms." Since felons are part of "the people,"

the amendment protects what § 922(g)(1) forbids—a felon's having a gun. See Range v. Att'y Gen., 124 F.4th 218, 232 (3d Cir. 2024) (en banc) (felons are part of "the people"). So the government must justify this restriction by analogizing to our nation's historical tradition of gun regulation. N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 29 (2022). As Bruen makes clear, the government need not offer a "historical twin,"

but only a "well-established and representative historical ana- logue." Id. at 30. The success of the analogy turns primarily on two questions: why and how the regulation burdens the right. Id. at 29-30.

We have already answered the first question. Two years ago, we held § 922(g)(1) unconstitutional as applied to a man

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with a prior conviction for food-stamp fraud. Range, 124 F.4th at 232. But we flagged a limit to our holding, stressing that the government had no evidence that Range posed a risk of vio- lence to others or that his crime "[was] closely associated with physical danger." Id. at 230. That aligned with the Supreme Court's later holding in Rahimi that, under a law banning such people from having guns, someone who poses "a clear threat of physical violence to another" person "may be disarmed."

United States v. Rahimi, 602 U.S. 680, 698 (2024). Accord United States v. Hemani, 146 S. Ct. 1677, 1693 (2026) (sug- gesting that prosecutors may need some proof that a defendant poses a special risk of misusing firearms or "a danger to him- self or others"). In other words, the answer to why is that dis- arming physically dangerous people serves public safety. So § 922(g)(1) is constitutional insofar as it disarms convicts who pose a risk of physical violence from misusing guns. Now we ask the second question: how may the law address a risk of violence. That burden encompasses the nature of the restriction imposed, the process used to impose it, and its dura- tion. A panel of our Court ventured an answer to that question last year for a professional gambler. Pitsilides v. Barr, 128 F.4th 203, 212-13 (3d Cir. 2025). But that case is no longer our touchstone. Here, we revisit that inquiry en banc.

A. Judges normally found people to pose a risk of violence individually, then disarmed them

Historically, there were two paths to disarming people. One was individualized: A court found someone to pose a risk of physical violence from misusing guns and disarmed him. The other was categorical: A law targeted a disloyal group that

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risked violence to the community. In those instances, a member of the group could often get his rights back by showing that he himself did not pose a risk of violence.

Individualized judgment was the norm. For centuries, dis- armament was tied to a judge's finding that someone posed a risk of physical violence from misusing guns. Sometimes, that meant punishing risky behavior. Going-armed laws punished and disarmed those who used their weapons to menace others. See Rahimi, 602 U.S. at 693, 697-98 (citing Sir John Knight's Case, 87 Eng. Rep. 75, 76 (K.B. 1686) & 4 William Black- stone, Commentaries *149). Rooted in the old bans on affrays, they targeted conduct that spread fear and threatened the peace:

going armed "to the Terror of the People." Id. at 697 (internal quotation marks omitted). These laws were often enacted with bans on fighting, together targeting conduct likely to lead to violence. Id.

Other laws, like surety laws, aimed to prevent harm before it happened. Id. at 695-97. If someone credibly feared that another person posed a risk of physical violence, including by misusing his arms, he could complain to a magistrate. Id. at

696. The magistrate would hold a hearing, weigh the evidence, and decide whether the accused was likely to breach the peace. Id. at 696-97. If the risk was real, the accused had to post a bond promising to keep the peace for up to six months. Id. at 695, 697. If he failed to post it, he would go to jail; if he breached the peace, he would forfeit the bond. Id. at 695. Either way, the restraint was tailored to the person's risk. The Supreme Court has blessed modern versions of this model. In Rahimi, it upheld a law disarming someone once a

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court found that he "represents a credible threat to the physical safety of [his] intimate partner or child." 18 U.S.C. § 922(g)(8)(C)(i). Rahimi relied on these same traditions: the going-armed and surety laws. 602 U.S. at 695-98. These laws shared a common thread. The justification was public safety, and the mechanism was a court's judgment about a particular person's propensity for violence. When a law was punitive, a court required proof that the defendant had engaged in threatening conduct, especially with weapons, before taking those weapons away. When it was preventative, a judge or jus- tice of the peace had to make an individualized finding that someone posed a risk of violence before requiring a bond or temporarily disarming him. Either way, a person could be dis- armed only when a court found that he posed a demonstrated risk of physical violence.

B. Categorical bans were narrow, often suspect, and usually rebuttable

To be sure, some laws disarmed categories of people, but these examples are few, fraught, and often discriminatory. Most founding-era bans disarmed political enemies—groups thought capable of collective rebellion. These measures were tied to allegiance and often lifted once the perceived threat passed. Plus, many applied to groups that lawmakers refused to treat as part of "the people" protected by the Second Amend- ment, like slaves and American Indians. Both features mean- ingfully distinguish these historical bans from today's across- the-board ban on felons. Even so, their procedures for rearma- ment are instructive. Contrary to our dissenting colleague's argument, rearmament was not automatic. Often, the disarmed

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person had to make some showing that he no longer posed a risk of violence.

Start with the disloyalty-based bans. Dissidents were dis- armed until they proved loyalty. Fearing rebellion, the English Crown barred Catholics from bearing arms because their alle- giance to the Pope supposedly made them "untrustworthy" to Protestant kings. Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting) (quoting Adam Winkler, Gun- fight 115 (2011)); accord Joyce Lee Malcolm, To Keep and Bear Arms 18-19, 122 (1994). The colonies followed suit, dis- arming British Loyalists, Catholics, and seditious libelers when they were thought to threaten the American cause. Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 159-60 (2007) (Loyal- ists); 1 Records of the Governor & Company of the Massachu- setts Bay in New England 211-12 (Nathaniel Bradstreet Shurtleff ed. 1853), https://perma.cc/UV66-9VMC (seditious libelers); United States v. Jackson, 85 F.4th 468, 470-472 (8th Cir. 2023) (Stras, J., dissenting from denial of rehearing en banc) (collecting sources).

But members of these groups could still get their guns back. If one was "willing to swear undivided allegiance to the sover- eign," he no longer posed a threat since he was unlikely to join an uprising. Churchill 157, 159. And some of the English bans protected individual self-defense. In a period of significant tumult, one law targeting Catholics still let them own guns for

"defense of his house or person" if deemed necessary by a jus- tice of the peace. Malcolm 123 (quoting 5 The Parliamentary History of England from the Earliest Period to the Year 1803,

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at 182-84 (London, William Cobbett, ed. 1808-20)) (cleaned up); An Act for Disarming Papists, and Reputed Papists, Re- fusing to Take the Oaths to the Government, ch. 4, §§ 1-9, 1756 Va. Acts 35, 35-39 (Franklin Press, 1820) (1756), https://perma.cc/3YTR-4HBB. Altogether, the allegiance- based bans seem to have targeted the collective group's per- ceived threat to the political community. Malcolm 141. Colonial legislatures disarmed American Indians and slaves for similar, sometimes bigoted reasons. See, e.g., Laws Enacted By The First General Assembly of Virginia, in Colonial Ori- gins of the American Constitution 287 (Donald Lutz ed., 1998), https://perma.cc/H7P8-B9ZC (reprinting 1 Journals of the House of Burgesses of Virginia 9-14 (H.R. McIlwaine & John P. Kennedy eds., 1905)) (banning sale or gift of arms or ammu- nition to Indians on pain of death); Act of Mar. 31, 1639, reprinted in Laws and Ordinances of New Netherland, 1638-1674, at 18-19 (Edmund O'Callaghan ed., 1868), https://ti- nyurl.com/mr37wacw (same); see also An Act for Preventing Lending Guns, Ammunition, &c to the Indians, 1723 Conn. Pub. Acts 292, https://perma.cc/E5XL-8D2C; Malcolm 140-

41. But see, e.g., Act of Dec. 17, 1792, ch. 41, § 9, reprinted in Shepard, 1 Statutes at Large of Virginia 123 (1835) (providing that "every free negro or mulatto, being a housekeeper, may be permitted to keep one gun, powder, and shot"). Those laws, too, tracked fears that the collective group posed a danger. One law barring arms trade with Indians was a direct response to the violent uprising of a well-armed tribe. Malcolm 140 (citing Forrest McDonald, Novus Ordo Seclo- rum: The Intellectual Origins of the Constitution 74 (1985) & John Trenchard, An Argument Shewing that a Standing Army is

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Inconsistent with a Free Government, and Absolutely Destruc- tive to the Constitution of the English Monarchy 114-15 (Lon- don, 1697)). And laws disarming slaves and freedmen varied with each colony's reliance on slave labor, since more slaves meant that colonists perceived more risk. Malcolm 141. By limiting access to guns, these laws prevented organized vio- lence by the groups and "confirmed their status as outsiders and inferiors." Id.

Rearmament for members of these groups was uneven. One colony let non-hostile Indians trade arms, but others did not. Trade with Indians, in The Colonial Laws of Massachusetts 240, 240-41 (1889) (1672). And for black Americans, disarma- ment became more common over time. Though they were not universal, bans aiming to disarm freedmen spread. See, e.g., Act of Nov. 1806, in 3 The Laws of Maryland 298 (Virgil Maxcy ed., 1811); An Act to Prevent the Use of Fire Arms by Free Negroes and Free Mulattoes and for Other Purposes, in Laws of the State of Delaware ch. 176, at 180. But see, e.g., Stephen Halbrook, The Founders' Second Amendment 166 (noting that as of 1798, Rhode Island had not "restricted the right to keep and bear arms" by law, even for the "Native Amer- ican or slave").

Even then, there was often a path back: In some states, a freedman could reclaim his arms if his neighbors or a justice of the peace certified that he was "peaceable" or "of fair charac- ter." Act of Nov. 1806, 3 The Laws of Maryland 298; Joseph G.S. Greenlee, Disarming the Dangerous: The American Tra- dition of Firearm Prohibitions, 16 Drexel L. Rev. 1, 28 (2024). Despite discriminatory aims, these laws still reflected an

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understanding that arms restrictions turned on perceived dan- gerousness, not status alone.

A few outlier laws turned on legislative judgments about the propensity for violence by individuals within a category, rather than political judgments about the group as such. In the mid-nineteenth century, some states barred so-called "tramps"

or vagrants from having guns because they were thought to have a propensity for violence. See State v. Hogan, 58 N.E. 572, 574-76 (Ohio 1900) (collecting state laws). But interpret- ing one of these laws, the Ohio Supreme Court still rested on a notion of allegiance, calling tramps "public enem[ies]" outside the social and political order as well as physically dangerous. Id. at 574. And these post-founding laws shed little light on founding-era meaning. See Lara v. Comm'r, Pa. State Police,

125 F.4th 428, 441 (3d Cir. 2025). So for the most part, courts had to decide whether individ- uals posed a risk of physical violence before disarming them. As a rule, categorical bans rested on a group's allegiance or exclusion from the political community, not on individuals' violent tendencies. So these categorical bans are not analo- gous. And even laws that swept broadly left room for individ- uals to rebut their presumed risk of violence and reclaim their rights. Rearmament was not automatic; often, the disarmed person first had to show that he no longer posed a danger.

III. BOST'S VIOLENT CONVICTION SUFFICES, AT THIS

EARLY STAGE, TO SHOW HIS RISK OF VIOLENCE

As-applied challenges let courts do what they have long done: decide who poses a risk of physical violence from mis- using guns. But modern procedure must mirror historical

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limits. Not every crime proves a risk of physical violence. And the stage of the case may dictate the kinds of evidence that courts may consider in assessing that risk.

Start with the threshold question: Does the underlying crime show a risk of physical violence? On a motion to dismiss, we engage in "a narrow, limited analysis geared only towards ensuring that legally deficient charges do not go to a jury." Ber- grin, 650 F.3d at 268. Thus, courts must look only at the pred- icate crime that supports the § 922(g)(1) prosecution in the first place. At least when a crime has violent or threatening ele- ments, the conviction itself is analogous to the historical bases to fear physical violence. With the going-armed laws, disarma- ment followed a judicial finding that the defendant had com- mitted a crime that posed such a risk. So too today, the govern- ment may show that a felon's predicate crime involves physical violence or the risk of it, thus justifying disarmament. It bears the burden of justifying disarmament based on the predicate crime alone—that is, of showing that the defendant falls within the category of people who risk causing physical violence. (Here, the elements of the predicate crime are sufficient; we need not decide whether they are necessary or whether the facts admitted by a defendant, found by a jury, or supported by the weight of other evidence may also be considered.) Once the government alleges an adequate predicate, it has carried its bur- den to support a § 922(g)(1) indictment at this early procedural stage.

This framework tracks history. At the founding, disarma- ment usually followed a judicial finding of a risk of physical violence. Convictions could supply that finding, but only when the predicate crime itself signaled such a risk.

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Although we need not catalogue which predicate crimes show a risk of physical violence from misusing guns in and of themselves, we can say that judges are well-suited to drawing those lines. Trial judges already assess risks of violence every day: at bail, sentencing, and on supervised release, where they weigh protecting the public and often order defendants not to have guns. See Jackson, 85 F.4th at 478 (Stras, J., dissenting from denial of rehearing en banc) (citing 18 U.S.C. §§ 3142(b), 3553(a)(2)(C), 3563(b)(8), 3583).

Some predicate crimes speak for themselves. Violent of- fenses, like common-law murder, forcible rape, and common- law robbery, mark a person as such. And the going-armed laws disarmed people whose conduct was threatening. These types of convictions suffice to justify disarmament. We do not require that the predicate violent or threatening crime itself involved guns or the threat of guns. Unarmed forcible rapes, for instance, can qualify.

Other predicate crimes speak for themselves in the other direction: They are not even physically dangerous, let alone violent. See, e.g., Range, 124 F.4th at 230-31. There may perhaps be a third, intermediate category: Still other predicate crimes may be closer calls. Though they may not involve immediate violence, they may fuel it and pose risks to the community. Whether these predicate crimes justify dis- armament depends on their own historical analogies. So at either end of the spectrum, the predicate crime tells the court enough about the felon's risk of physical violence to decide whether to dismiss a § 922(g)(1) indictment. In the mid- dle, it is possible that courts may have to draw more lines. But

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if so, we need not draw them today. Bost was convicted of ter- roristic threats. The elements of that predicate crime included

"a threat to commit any crime of violence with intent to terror- ize another." 18 Pa. Cons. Stat. § 2706(a)(1) (cleaned up). The Shepard documents confirm that he was convicted under that subsection. See Shepard v. United States, 544 U.S. 13, 16 (2005). That conduct fits squarely within the historical tradi- tion of disarming those who threaten violence. It echoes the core concern of the going-armed laws: conduct that terrifies others and breaches or risks breaching the peace. Bost's indict- ment is sufficient as a matter of law. And at this early stage, a court may dismiss only if the predicate conviction is insuffi- cient as a matter of law to put the defendant into the category of persons who pose a risk of physical violence from misusing guns. We need not address what, if anything, could later take a defendant out of that category.

IV. BOST'S REMAINING CLAIMS FAIL TOO

Though Bost also raises a few more challenges, none suc- ceeds. He claims that § 922(g)(1) is unconstitutional on its face. We have explained why Bost himself may be disarmed, doom- ing his facial challenge. Bost must "establish that no set of cir- cumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Under that stand- ard, Rahimi upheld § 922(g)(8)(C)(i) as facially constitutional because it could properly apply to Rahimi himself. 602 U.S. at 693, 700. The same is true here. That said, the Supreme Court has not squarely addressed a statute that disarms a whole cate- gory of people without requiring a judge to determine who falls within that class. Cf. Kanter, 919 F.3d at 465 (Barrett, J.,

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dissenting) (suggesting that categorical bans may call for greater scrutiny). But we will stick with the long-established standard for facial challenges.

Relatedly, Bost says § 922(g)(1) is unconstitutionally vague because an as-applied approach leaves people guessing whether they count as people who pose a risk of violence. Not so. A law is vague only if it fails to give ordinary people fair notice or invites arbitrary enforcement. United States v. Wil- liams, 553 U.S. 285, 304 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). Section 922(g)(1) is clear: Those con- victed of crimes punishable by more than a year may not have guns. A person might debate whether he is "responsible," but here he knows whether his conviction fits the statutory lan- guage. Cf. Rahimi, 602 U.S. at 701 (rejecting the "responsible"

citizen standard for disarmament). And on any test, Bost's ter- roristic-threats conviction qualified; there was no reason to doubt that.

Next, though Bost raises a Commerce Clause objection, he acknowledges that precedent forecloses that claim. United States v. Singletary, 268 F.3d 196, 205 (3d Cir. 2001). We will not disturb that precedent in this case.

Finally, Bost claims that § 922(j)'s ban on stolen guns is un- constitutional as applied to him, but it is not. The Second Amendment protects the right to keep and bear arms, not to have stolen property. The original colonies long punished those who bought, got, or stored stolen goods, with no carveouts for arms. See, e.g., Acts and Laws of His Majesty's Province of New Hampshire, in New England 15-16 (1761), https://ti- nyurl.com/y6e52vta (1714 law); 2 Laws of the State of New

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York Passed at the Sessions of the Legislature Held in the Years 1785, 1786, 1787 and 1788, Inclusive 668 (1886) (1788 law), https://tinyurl.com/4adv3mc7; 4 The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 273 (1820), https://ti- nyurl.com/7zxeek5n. "We are aware of no evidence that fire- arms have ever been exempt from such regulations." United States v. Gore, 118 F.4th 808, 812-13 (6th Cir. 2024) (rejecting facial challenge to § 922(j)). Without any such authority, Bost's challenge fails.

* * * * *

History answers both why the government may disarm and how. It may disarm someone when a judge finds that he poses a risk of physical violence from misusing guns. That finding is built in when a defendant is convicted of a violent crime—so disarming him fits our tradition. Yet when the predicate crime does not show even a risk of physical violence in the first place, the government cannot go on a fishing expedition, requiring him to disprove his own risk of violence. It must provide a dif- ferent analogy. But Bost was convicted of threatening others with physical violence. And violent convicts like him may prima facie be disarmed. We will thus AFFIRM.

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SHWARTZ, Circuit Judge, concurring in the judgment, with whom KRAUSE and RESTREPO, Circuit Judges, join. I agree with the Majority that James Bost's felony conviction for terroristic threats makes him ineligible to possess a firearm under 18 U.S.C. § 922(g)(1) and that his motion to dismiss the indictment based on a violation of the Second Amendment fails. I also agree with the Majority that the District Court correctly denied his motion to dismiss the charge under 18 U.S.C. § 922(j) for possession of a stolen firearm because our regulatory history bars the possession of stolen property of any sort, which includes stolen handguns. I write separately to emphasize my view that § 922(g)(1) constitutionally bans all felons from possessing firearms under Supreme Court precedent, history, and due process. Although the Majority embraces the principle that only felonies that pose a risk of physical violence from misusing guns are disarming (which is even narrower than the disqualifying crimes contemplated in Range v. Attorney General, 124 F.4th 218, 232 (3d Cir. 2024) (en banc) ("Range II")), the Supreme Court has not so held.¹Instead, it has thrice observed that bans on felon possession are "longstanding" and thus presumptively lawful. District of Columbia v. Heller, 554 U.S. 570, 626 (2008) ("[N]othing in our opinion should be

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taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . ."); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (same); United States v. Rahimi, 602 U.S. 680, 699 (2024) (same); see also N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 80-81 (2022) (Kavanaugh, J., concurring) (reiterating that Heller and McDonald recognized "longstanding prohibitions on the possession of firearms by felons"); United States v. Hemani,

608 U.S. ___, 146 S. Ct. 1677, 1700 (2026) (Alito, J., concurring in the judgment) (repeating that "prohibitions on the possession of firearms by felons . . . are . . . presumptively lawful" (citations and internal quotation marks omitted)).²The

2 Several of our sister circuits have also rejected a danger-based limitation. See Zherka v. Bondi, 140 F.4th 68, 77 (2d Cir. 2025) (holding that § 922(g)(1) is constitutional regardless of whether the underlying conviction was violent or dangerous); United States v. Hunt, 123 F.4th 697, 707 (4th Cir.

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presumptive legality of such a ban is consistent with our history.³See, e.g., Range v. Att'y Gen., 69 F.4th 96, 114 (3d Cir. 2023) ("Range I") (en banc) (Shwartz, J., dissenting) (explaining "that felon bans are consistent with our historical tradition"); Range II, 124 F.4th at 253 (Krause, J., concurring) ("[L]egislatures dating back to the Founding had the authority to disarm not just 'physically dangerous' felons, but a wide range of groups considered to present a special danger . . . ."). As a result, the felon ban in § 922(g)(1) constitutionally applies to all felons and is not limited to individuals convicted of crimes that pose a risk of danger from misuse of firearms.⁴

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Besides being unnecessary to ensure that § 922(g)(1) is constitutionally applied, the risk-of-physical-violence-from- the-misuse-of-a-firearm carveout the Majority announced presents serious due process concerns. See Binderup v. Att'y Gen., 836 F.3d 336, 409-10 (3d Cir. 2016) (en banc) (Fuentes, J., concurring in part, dissenting in part, and dissenting from the judgments); Range I, 69 F.4th at 116 (Shwartz, J., dissenting); Range II, 124 F.4th at 281-82 (Krause, J., concurring). In enacting § 922(g)(1), Congress disarmed those with a felony or felony-equivalent conviction.⁵18 U.S.C. § 922(g)(1); see id. § 921(a)(20) (further defining "crime punishable by imprisonment for a term exceeding one year"). By its terms, the statute provides individuals clear notice of whether their firearm possession violates federal law based on the maximum statutory penalty they faced for their prior conviction. This structure eliminates the vagaries of the Majority's test, which requires determining whether the crime of conviction would be deemed to pose a risk of physical violence from misusing a firearm based on only the predicate offense. The Majority fails to provide sufficient notice to individuals as to whether their conviction is disarming. For

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example, although the Majority's examples of common-law murder, forcible rape, and common-law robbery are apparently disarming, and each could be committed with a firearm, a firearm is not required for a conviction. Similarly, there are crimes one judge may think present the risk of physical violence from the misuse of a gun, like drug distribution, that another could conclude does not because physical force is not an element of the offense. Thus, the Majority's test does not provide guidance for an individual to know if his conviction is disarming. In fact, the Majority does not even decide whether consideration of a predicate offense is limited to its elements, or may also include the facts of conviction, creating even greater uncertainty for defendants and district courts alike. Because it is unclear whether a particular crime would be found to pose a risk of physical violence from misusing firearms, the Majority's carveout does not satisfy the due process requirement of giving an individual notice that the conduct violates the law.⁶See Grayned v. City of Rockford, 408 U.S.

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courts to consider only whether the predicate crime reflects a risk of physical violence from misusing guns. Thus, the fact- based contexts of bail and sentencing do not fit where a court is limited to considering only the predicate offense. Moreover, the Majority now asks district courts to make an altogether new determination: whether an individual presents a risk of dangers or "physical violence" specifically "from misusing firearms,"

without meaningful guidance on how that assessment differs from familiar bail, sentencing, or supervision decisions. As the Majority thinks that these analyses are similar, district courts are likely to give weight to our words in inconsistent ways, hindering uniformity across our Circuit.

Furthermore, the Majority's predicate offense approach is inconsistent with Rahimi, where the Supreme Court made clear that the Second Amendment does not require courts to ignore evidence of an individual's dangerousness in deciding whether he has a right to possess a firearm. See Rahimi, 602 U.S. at 698 (explaining that history "confirm[s] what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed").

One interpretation of the Majority's approach could also lead to the following situation. Assume the defendant has a prior felony conviction for bank fraud and the facts show that, when executing a warrant to arrest him for the bank fraud, law enforcement found a "hit list" and firearms. Further assume that after the defendant completes his bank fraud sentence, he is found with a firearm and another hit list and charged as a felon in possession of a firearm in violation of § 922(g)(1). There is no doubt that at the bail hearing on that charge a magistrate judge could conclude that the defendant poses a risk of danger to the community based on the evidence found

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104, 108 (1972) ("[A] person of ordinary intelligence [must have] a reasonable opportunity to know what is prohibited, so that he may act accordingly."). In addition to these due process concerns, the Majority's failure to provide a viable framework, including its silence on whether consideration of the elements of the offense of conviction are just sufficient or also necessary, will lead to chaos in the district courts, where, in the absence of this critical guidance, judges will be deprived of a meaningful first opportunity to determine whether a given individual was convicted of a disarming offense.⁷ Because Bost was a convicted felon at the time he possessed the firearm, and the longstanding bans on felons possessing firearms are consistent with our history and tradition of permitting legislatures to make categorical disarmament decisions based on their assessments of dangerousness, barring Bost from possessing a firearm does not violate the Second Amendment.

during the bank fraud case but, under the Majority's test, his felon in possession charge would be ripe for dismissal because the elements of his predicate bank fraud conviction do not convey a risk of physical danger based on misusing guns. Thus, under the Majority's test, despite evidence he presents a danger, he cannot be disarmed under § 922(g)(1).

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MONTGOMERY-REEVES, Circuit Judge, concurring in part and concurring in the judgment.

I join the majority's well-reasoned opinion, except for Sec- tion II.B, which relies on repugnant and discriminatory laws and procedures that would very likely violate the First and Fourteenth Amendments of the U.S. Constitution. The Su- preme Court has confirmed that "our Nation's tradition of fire- arm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not," United States v. Rahimi, 602 U.S. 680, 700 (2024). That tradition allows Bost to be disarmed, at least tem- porarily, based solely on his conviction. Section II.B attempts to enlarge our historical tradition in search of "instructive" re- armament procedures to show that categories of dangerous people were not automatically rearmed. Maj. Op. at 7. But I question whether the invidious, and likely unconstitutional, laws undergirding these rearmament procedures are valid in- puts for Bruen's test. I need not answer that question, however, because less constitutionally infirm comparators support the same conclusion. See, e.g., Range v. Att'y Gen., 124 F.4th 218, 262-63 (3d Cir. 2024) (Krause, J., concurring in the judgment) (collecting examples of "revolutionary-period statutes" under which those "disarmed . . . could prospectively regain their rights by proving to a government official that they no longer posed a danger of misusing firearms"); United States v. Wil- liams, 113 F.4th 637, 654 (6th Cir. 2024) ("Rhode Island and Massachusetts allowed loyalists to keep their arms once they showed satisfactory reasons for needing weapons or by the or- der of colonial committees." (citation modified)). So I join all but Section II.B.

1

MASCOTT, Circuit Judge, concurring in part and concurring in the judgment.

I respectfully concur in parts I, II.A, and IV of the Court's opinion and in the judgment affirming Mr. Bost's conviction. But under the Supreme Court's precedent in United States v. Rahimi,¹I would decide this case on a more limited basis and find the application of 18 U.S.C. § 922(g)(1) constitutional only as applied to Mr. Bost's individual violent record and not categorically to an entire class of offenses. This Court is under-equipped to stand in legislative shoes and demarcate between constitutional and unconstitutional categorical statutory subclasses without the individual records before us of those whom the Court considers a continuing part of "the people."²

In Rahimi, the Supreme Court held that the Second Amendment permits restrictions on gun possession by

"individuals who pose a credible threat to the physical safety of others."³Here, this Court extends beyond its individualized holding on Mr. Bost and preemptively determines that a full category of felons may constitutionally be disarmed without any particular determination or requirement that those felons continue to pose an ongoing threat after serving time for their past crime. The Court's Part II.B historical recitation of certain

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groups categorically limited in firearms possession does not provide evidence of a past practice supporting its broad holding on limiting constitutional protections. Those examples constitute firearms regulation of groups who at the time faced deep prejudice and lacked treatment as fully part of "the people." The collection of illustrations is no reed on which to establish a foundation of rights protection. Those examples represent cautionary tales and "historical evils."⁴Therefore, I respectfully concur only with respect to the individualized application of § 922(g)(1) to Mr. Bost's violent and threatening record, consistent with the principles of Rahimi.

I.

In the two en banc cases decided today, our Court confronts 18 U.S.C. § 922(g)(1). In Rahimi, the Supreme Court

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considered a related but significantly distinct component of that part of the U.S. Code: § 922(g)(8).⁵The latter subsection prohibits firearms possession by an individual subject to a court order, issued after notice and a hearing, that restrains the person from intimate partner or child harassment, stalking, or threatening behavior.⁶In contrast, § 922(g)(1) prohibits

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firearms possession by any person convicted in the past of a crime punishable by a prison term exceeding one year.⁷Both offenses subject a convicted individual to up to 15 years in prison.⁸

When the Supreme Court evaluated the constitutionality of § 922(g)(8), it assessed the statute's particular application against the defendant and found that § 922(g)(8)(C)(i) court orders provide adequate indicia that a person presents an ongoing individualized threat, which, in turn, justifies his disarmament for the order's duration.⁹The Supreme Court pointedly declined to evaluate disarming individuals under the neighboring § 922(g)(8)(C)(ii), which addresses orders that to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(8)(A)-(C).

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prohibit threats and the use of force but do not actually identify their subject as an ongoing threat.¹⁰

In particular, in Rahimi, the defendant grabbed his girlfriend by the wrists and shoved her into his car, hitting her head against the dashboard.¹¹He fired a gun as she fled and threatened to shoot her if she reported him.¹²The girlfriend's report of this incident and other assaults led to the issuance of the restraining order that found him a present, credible physical safety threat likely to commit violence again.¹³While still subject to that order, Rahimi threatened another woman with a gun.¹⁴State police, further, identified him as a suspect in at least five more shootings.¹⁵

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The disarmament trigger that Rahimi challenged was the application of § 922(g)(8), which barred firearms possession while he remained subject to the restraining order. When the Supreme Court affirmed the constitutionality of the application of the provision, it held that the Second Amendment supported a possession ban "while the order [wa]s in effect" because the order had found that Rahimi "pose[d] a credible threat to the physical safety of an intimate partner."¹⁶ Here, the distinct statutory trigger of § 922(g)(1) was based on Mr. Bost's prior terroristic-threat conviction. That conviction occurred more than 20 years ago.¹⁷Under the terms of the unique federal statutory provision before us here, that one conviction permanently criminalizes firearms possession for Mr. Bost.¹⁸

The Supreme Court has not yet ruled on the scope of the constitutional applications under § 922(g)(1) or the provision's general constitutional reach. But as this Court notes, Mr. Bost has had numerous incidents involving threatening, violent, or unlawful behavior since his terrorist-threat conviction, up through his recent gun charge.¹⁹In particular, Mr. Bost's conviction for engaging in terroristic threats was based on his carjacking of a woman, threatening to kill her unless she handed over money.²⁰He then drove to her mother's home to

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get the money.²¹ After screaming for help, the woman finally escaped.²²Along with his 2002 guilty plea to terroristic threats under Pennsylvania law, Mr. Bost pleaded guilty to false imprisonment, assault, and criminal conspiracy.²³While out on bail after arrest for a subsequent offense, Mr. Bost failed to appear back in court and was later found on a couch in his girlfriend's home with a stolen .38 caliber pistol.²⁴ As offenses where there is no record of conviction, these do not provide statutory justification for a § 922(g)(1) charge. But under the Rahimi principle—that individuals posing ongoing threats of physical violence may be temporarily disarmed—these facts evince the kind of ongoing threat of violence that may be constitutionally regulable consistent with the Second Amendment.²⁵

Further, options exist for Mr. Bost to escape future § 922(g)(1) prosecution. The Department of Justice has now actively engaged § 925(c).²⁶And the Executive Branch has

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promulgated regulations establishing a process for ex-convicts to come out from under the reach of § 922(g)(1) so that they can reestablish access to the full range of firearm protection secured to "the people" under the Second Amendment.²⁷ Contra the dissent's conclusion,²⁸I agree with the Court here that the present application of § 922(g)(1) to the facts and circumstances of Mr. Bost's case fits within the scope of Rahimi, given the ongoing nature of Mr. Bost's criminal activity, possession of a stolen weapon, failure to appear, repeated offenses, and past violence including terroristic imprisonment of another individual. I accordingly concur in part and concur in the judgment and part ways with the dissent on the ultimate bottom line for Mr. Bost's as-applied circumstances.

relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.").

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II.

That said, in Rahimi, the Supreme Court pointedly reached a limited decision. First, the Supreme Court explicitly clarified it was "conclud[ing] only" that "[a]n individual found by a court to pose a credible threat" of physical violence to an intimate partner "may be temporarily disarmed."²⁹Second, it declined to determine across the board that all components and applications of § 922(g)(8) are constitutional. In particular, the Court did not evaluate the constitutionality of regulation under § 922(g)(8)(C)(ii)—the restraining orders subsection that requires only an instruction against violence rather than a determination that the defendant presents an ongoing threat.³⁰ Accordingly, there is no grounding in Rahimi for concluding, necessarily, that the Second Amendment permits the disarmament of all individuals ever convicted of an offense within the category of "terroristic threats"—especially when the offense and subsequent punishment may have occurred years or decades ago and when there is no demonstrated evidence of ongoing risk of violence or threatening behavior. The Court's decision today, then, moves beyond Rahimi by stretching to constitutionalize perpetual disarmament of Mr. Bost and any other individual convicted of an entire category of offenses. Mr. Bost's ongoing, repeated legal violations

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arguably demonstrate that he presents an ongoing threat— bringing him within the parameters of the specific legal implications of Rahimi. And with the § 925(c) bypass valve now in place, Mr. Bost has potential recourse and paths for repossession if at some future point he no longer falls within the current threat category of Rahimi. But reaching beyond those individualized determinations involves moving far past the issues resolved by the Supreme Court and the Second Amendment's constraints found constitutional in Rahimi. And the historical examples this Court relies on in Parts II.B and III for its categorical holding, consequently, fall outside the bounds of precedent.

For instance, it remains open under Supreme Court precedent which, if any, § 922(g)(1) applications are constitutional and whether there is any inherent constitutional stopping point for the length of Second Amendment restrictions following felony conviction and time served. And unless the Supreme Court were to conclude that all § 922(g)(1) triggering convictions, or certain categories of them, are automatic indicia of dangerousness justifying permanent disarmament, it will eventually have to assess when and how an ex-convict should have the opportunity to re-acquire possession rights.

These are thorny issues of constitutional law. Following is a sketch of several initial considerations. First, how might the Court apply the lessons of Rahimi to § 922(g)(1)? In one sense, that provision involves a person who is more clearly outside the "bounds of law"—and, thus, even more clearly disarmable—than an individual subject to

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§ 922(g)(8). Under § 922(g)(8), the defendant would be subject to a court-issued restraining order that might be issued by a single adjudicator. But the triggering event for a § 922(g)(1) charge is an actual conviction of a crime, requiring evaluation and a verdict by one's peers. That crime of conviction arguably must be serious in that § 922(g)(1) statutory disarmament applies only to crimes punishable by a term exceeding one year.³¹

In the truest sense, however, § 922(g)(1) is the more burdensome and severe curb on Second Amendment liberty. By its terms the § 922(g)(1) ban is complete. It includes no expiration date.³²After years of criminalizing more and more offenses, particularly at the federal level, the felony label

"reaches conduct ranging from reading someone else's email to opening a bottle of ketchup at the supermarket and putting it back on the shelf."³³Also, state-law misdemeanors trigger the lifetime disarmament imposed by § 922(g)(1) where they are

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punishable for more than two years.³⁴The triggering felony for the firearms prohibition under the provision does not even need to be keyed to violence. Nor must the convicted defendant have received or served the prison sentence of more than one year that stands as the possible sentence establishing the requisite threshold of seriousness under § 922(g)(1).³⁵ Further, even though a defendant cannot face a firearms ban under § 922(g)(1) until receiving the full process of a jury conviction—unlike the orders issued by just a court under § 922(g)(8)(C)(i)—attendant with those orders is the opportunity for the subject to have had notice and a hearing.³⁶ So although the § 922(g)(8)(C)(i) threat determination process is not as fulsome as the § 922(g)(1) convictions, the significantly greater permanence of the § 922(g)(1) ban arguably makes it much more severe.

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This Court's past opinions are imbued with these distinctions. Sitting en banc in Range II, the Court found unconstitutional the application of § 922(g)(1) to food-stamp offenses, noting that they did not involve violence and consequently did not fall within Rahimi's scope.³⁷We have also noted that prior gambling offenses do not automatically represent a threat of present violence—the very type of threat that Rahimi held was a justification for prohibiting an individual's gun possession.³⁸And today, this Court holds in Williams that driving while intoxicated two decades ago does not constitute that kind of ongoing, present threat of violence either.³⁹

In contrast, the Court finds § 922(g)(1) constitutionally applicable here, in part, because of the specific ongoing threat of violence that Mr. Bost poses. But the Court then steps back into categorical evaluations under § 922(g)(1) and finds it constitutional to apply the § 922(g)(1) firearms ban to anyone with a prior conviction of any offense falling within the category the Court labels "terroristic threat." The Court describes these offenses as including "a threat to commit any

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crime of violence with intent to terrorize another."⁴⁰Those criteria are serious and may describe past convictions for behavior that is heinous and severe. But the Court does not further define the category, and on the face of it, the factor of

"a threat" may encompass certain categories of speech, messages, or viewpoints that not all agree are threatening.⁴¹ Further, the Court gives no time limitation on how recently the prior conviction must have occurred and examines no indicia indicating whether the individual continues to have a record of behavior suggesting he remains a threat after paying the consequences for his prior offense.

This categorical determination reaches beyond the present "case" and "controversy" by pronouncing the constitutionality of the application of any "terroristic threat"

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offenses, presumably anytime, anywhere, with consequences of disarmament in perpetuity.⁴²The Court assures us this is modest—its holding authorizes just a prima facie showing of across-the-board constitutionality.⁴³ But that determination— albeit prima facie—is without respect to the circumstances of one's conviction, the precise contours of the offense labeled

"terroristic threat," the seriousness of one's particular offense or length of imprisonment, or the length of time since the individual served his sentence.

Moreover, the prima facie determination is made within the criminal context, subjecting the presumed defendant to incredibly high stakes. The full weight of the federal government's prosecutorial authority is upon him unless, or until, the defendant convinces the court adjudicating his case that he really does continue to have individualized Second Amendment rights. That review ultimately extends all the way up to consideration by an en banc court. That process takes great time. For example, Mr. Bost was indicted on February 2, 2021, and his motion to dismiss his indictment was denied on November 8, 2023.⁴⁴ Williams—the named plaintiff in another Second Amendment case decided by our en banc court today—filed his action on June 1, 2017.⁴⁵

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If such an individual does not, in fact, present a threat justifying current disarmament under Rahimi, he will have already suffered significant harm by the time a court concludes that a § 922(g)(1) prosecution cannot be constitutionally applied to him. The federal prosecutorial process potentially includes within its grasp a grand jury indictment, expensive and intrusive investigations, reputational impact, and detention time.⁴⁶In other contexts, "[w]e do not force people seeking to exercise their constitutional rights to wait until they are prosecuted criminally" to seek judicial review.⁴⁷Yet here, by the time a court adjudicates a defendant's personal circumstances, the § 922(g)(1) defendant has already faced significant consequences, and his firearm possession and purchasing decisions have already been significantly impacted. Individuals should not face those burdens for exercising their properly held constitutional rights.

The Court, since its watershed Second Amendment analysis in Heller, has not yet detailed the kinds of consequences, if any, that constitutionally attach to an individual's prior commission of a violent act. Both the "going armed" and surety laws that the Supreme Court relied on to uphold the constitutionality of § 922(g)(8) in Rahimi were

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historical examples that dealt with punishing ongoing, current violent threats.⁴⁸The "going armed" laws prohibited gun possession for actual use in terrorizing or issuing threats.⁴⁹ Surety laws merely involved a hold on, and potential forfeiting of, the financial resources of a risky, threatening individual.⁵⁰ At bottom, the question that the Supreme Court has not yet addressed is whether—after a felon has paid the penalty or served the imprisonment related to his offense and returned to a fulsome role as part of "the people"—a legislature may limit (if at all) that individual's exercise of his individual rights. Which past offenses, if any, under historical practice and tradition, suffice to mark an individual as so automatically violent that the past conviction is itself enough to qualify them as perpetually violent for Second Amendment purposes under Rahimi? If an individual commits an offense sufficiently serious, such as homicide,⁵¹does that offense take an individual out of the full protection of "the people" for purposes of the Second Amendment? And if not, what is the justification for continuing to impose any limitation on their gun possession? Does the past violence, due to its severity,

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render a felon dangerous, or a threat, for his entire life, meaning his gun possession can be prima facie stripped?

That is, once that present threat ends and the past sins are atoned for through time served, what if any is the constitutional justification for continued distinct treatment?

Consider other Bill of Rights norms. For example, in the Fourth Amendment context, the evaluation of searches and seizures that are reasonable without a warrant, or that reasonably trigger a warrant, may differ in the probation and parole contexts.⁵²But what about subsequent to the termination of probation or parole?⁵³Or what about free speech, the free exercise of religion, or the freedom not to quarter troops in one's home?⁵⁴Our legal system does not

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commonly treat these liberties as being more limited for previously convicted criminals who have paid their societal debts, distinct from the rest of society. What, then, would be the concrete justification for interpreting constitutional firearm possession rights to apply distinctly to ex-convicts such that § 922(g)(1) charges are constitutional? The Supreme Court has cautioned: "The constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'"⁵⁵So does a distinct and unique justification serve to constitutionally validate the application of § 922(g)(1) to Second Amendment rights where ex-convicts do not face constraints on the exercise of other individual liberties? The question is worth considering.

That said, in Heller, the Supreme Court clearly stated that the landmark Second Amendment decision did not call persons, houses, papers, and effects, against unreasonable searches and seizures" (emphasis added)); id. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."); id. amend. X (reserving to "the States" or "to the people" the

"powers not delegated to the United States by the Constitution, nor prohibited by it to the States"); cf. id. amend. III (not expressly referring to "the people" in the Third Amendment's prohibition on the quartering of soldiers in homes during peace times, without consent).

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into question felon firearm possession bans.⁵⁶But Heller did not specifically reexamine those bans, explore historical justifications for them, or address their permanent nature for all felons. And the Supreme Court's subsequent opinions in Bruen, Rahimi, and Wolford v. Lopez⁵⁷have indicated that a history of relevant regulation is required to justify Second Amendment restraints. The federal felon-in-possession ban was initially enacted in 1938,⁵⁸and the theory and form of criminal punishment in America has changed significantly since the founding. The Court's examples today show past categorical limits on Second Amendment rights or groups who faced deep societal prejudice, so those examples do not genuinely demonstrate how "the people" under the Second Amendment are to be constitutionally treated.⁵⁹Moreover, even those limits did not necessarily extend for a lifetime, terminating when the groups facing opposition and prejudice

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were no longer perceived as posing a societal risk to the majority that imposed the prejudicial constraints.⁶⁰ Separately, then-Judge Barrett pointed out in a separate writing on the Seventh Circuit in Kanter v. Barr that state power to permanently strip convicted felons of their voting rights has been recognized as constitutional.⁶¹Does that enduring constraint on ex-convicts who have concluded serving time for their criminal offense provide some kind of record of a practice justifying a constraint on Second Amendment liberty for that same group? Not necessarily. As a policy and practical matter, most states automatically restore voting rights after release from custody.⁶²Some do not strip

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incarcerated felons of their ability to vote in the first place.⁶³ Many others provide a process for voting rights restoration.⁶⁴ Judicial writings have at times distinguished between

"civic rights," such as voting rights, exercised "as part of the collective enterprise of self-governance," and "individual rights," like gun possession, free speech, and the exercise of religion.⁶⁵Arguably, the character of civic rights involving the affirmative responsibility to conscientiously and with integrity participate in society may perform functions distinct from the individual rights protections safeguarding against government intrusion and oppression.⁶⁶

restoration upon release. . . . In 15 states, felons lose their voting rights during incarceration, and for a period of time after, typically while on parole and/or probation. Voting rights are automatically restored after this time period.").

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But our legal system has not resolved whether voting rights and responsibilities and individual liberties are fully in pari materia. And putting aside any possible functional distinction between voting and individual rights, it's difficult to see, as a textual matter, why certain individual liberties cannot be permanently revoked upon conviction (speech), but others can (gun rights). And the terms of the Constitution do not appear on their face to distinguish between "the people" for purposes of individual rights versus collective societal participation. Consider the terms of the Bill of Rights. The phrase "the people" is employed to designate the group subject to the right in the context of individual liberties such as the First Amendment freedom of assembly and the Fourth Amendment freedom to be free from unreasonable searches and seizures along with the Second Amendment "right of the people to keep and bear Arms."⁶⁷But the Ninth and Tenth amendments protecting the individual autonomy of "the people").

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Amendments then use the phrase to designate the group holding collective residual power in private society alongside States and the United States.⁶⁸In any event, the question of how much or whether individual rights protections can be limited for people who have paid their debt to society is an open one at the level of the highest Court.⁶⁹ Rahimi, of course, did not reach these particular questions. Nor did it address what process requirements, if any, must be provided for individuals to regain possession rights. Perhaps courts must look for an analogue to the past surety process.⁷⁰Or perhaps it is adequate for criminal

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defendants to just have the chance to make their case to a district judge in a motion to dismiss their § 922(g)(1) indictments, following prosecution.⁷¹But if so, this poses a more fundamental question: Is an active process under § 925(c) adequate? And whose job is it to determine what showing must be made—a court in its quest to determine the constitutionally maximal regulation allowable under the Second Amendment or a legislature?⁷²

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III.

Beyond the question of whether Supreme Court precedent extends to support categorical possession bans without present evidence of an ongoing safety threat, it is not clear that carving up good and bad categories under a congressionally enacted statute is consistent with the limited adjudication of discrete "cases" and "controversies."⁷³In significant separation-of-powers cases, several Justices on the Supreme Court have suggested that such a practice "seemingly confers legislative power to the Judiciary."⁷⁴Such "policy choices belong to Congress."⁷⁵It is outside the judicial role to 1120, 1128 (8th Cir. 2024) ("Legislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed." (emphasis added)).

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sever certain parts of a statute when evaluating constitutional challenges to it. For example, in United States v. Arthrex, Inc., the Supreme Court held that Congress's decision to vest inferior officers—namely, members of the Patent Trial and Appeal Board—with the power to make final, unreviewable decisions within the Executive Brach violated Article II of the Constitution.⁷⁶To remedy that constitutional infirmity, the Court concluded that a provision preventing a principal officer from reviewing those decisions could not "constitutionally be enforced."⁷⁷Justice Gorsuch, however, charged the majority with violating the separation of powers.⁷⁸The proper course, in his eyes, would have been for the Court to "simply decline[] to enforce the statute in the case or controversy at hand."⁷⁹ Here, Part III of the Court's opinion reaches beyond resolving Mr. Bost's specific "case" to conclude that § 922(g)(1) may be applied to all "terroristic threat" offenses— not just for individuals convicted under the Commonwealth of Pennsylvania state law forming the basis for the current case but for any offense falling within the Court's "terroristic

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threat" bucket. The majority limits these constitutionalized offenses by describing that they must involve "conduct that terrifies others and breaches or risks breaching the peace."⁸⁰ But fashioning disarmament policy and selecting which offenses merit conviction, or even which range of punishments are appropriate for criminal offenses, historically are legislative tasks.⁸¹Here, in § 922(g)(1), Congress and the President enacted a prohibition on firearm possession by any individual convicted of an offense with a possible prison term of more than one year. Congress then also established a process to be overseen by the U.S. Attorney General for those subject to the firearm ban to have their firearm rights restored. The Court's only job in resolving a specific case or controversy like the firearm rights of Mr. Bost here is to determine whether application of those statutory policies is consistent with Second Amendment rights. The Court does not have the constitutional role of making a policy determination of what the proper process of Second Amendment rights restoration should be. Nor is it up to a Court to determine whether certain classes of felonies are more amenable to possession bans than others. Congress has made that choice. And the question here simply is whether Mr. Bost correctly alleges that the choice is unconstitutional as applied to him as well as facially

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unconstitutional. Because the Court here also reaches for a middle ground refashioning the statute, I respectfully decline to join parts II.B and III of the opinion.

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PHIPPS, Circuit Judge, dissenting, with whom BOVE, Circuit Judge, joins.

As this Court held in Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (en banc), felons, despite their criminal histories, are part of 'the people' whose rights to keep and bear Arms are protected by the Second Amendment. Id. at 228. Thus, under the Bruen framework, see N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 24 (2022), the only way that

18 U.S.C. § 922(g)(1), which criminalizes a felon's possession of a firearm or ammunition, can comport with the Second Amendment is if it is "consistent with the Nation's historical tradition of firearm regulation." United States v. Hemani,

608 U.S. 772, 780 (2026) (quoting Bruen, 597 U.S. at 24). But there is no historical analogue to justify the presumptive permanent disarmament effectuated by 18 U.S.C. § 922(g)(1), and for that reason, I respectfully dissent. As this Court previously recognized, "in the Founding era, a felon could acquire arms after completing his sentence and reintegrating into society." Range, 124 F.4th at 231. Moreover, the earliest historical foundation for permanent disarmament of convicts dates back to the 1930s, and that was for persons who had committed violent crimes.¹The modern restriction on felons - manifested through the expression

"convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[,]" 18 U.S.C. § 922(g)(1) - was first enacted in 1961.²And while the Supreme Court has not "cast doubt on longstanding prohibitions on the possession of firearms by felons," District

1 See Federal Firearms Act, Pub. L. No. 75-785, § 2(f), 52 Stat.

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of Columbia v. Heller, 554 U.S. 570, 626 (2008),³this Court has explained that "a law passed in 1961—some 170 years after the Second Amendment's ratification and nearly a century after the Fourteenth Amendment's ratification—falls well short of 'longstanding' for purposes of demarcating the scope of a constitutional right." Range, 124 F.4th at 229. Thus, § 922(g)(1) does something foreign to our historical tradition of firearms regulation - it presumptively permanently disarms an otherwise free person. For that reason, it is unconstitutional as applied to James Bost, who is a felon who has repaid his debt to society.⁴

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The Majority Opinion dutifully acknowledges that a modern firearms regulation must use a similar means to a historical regulation, and that to meet that requirement, the

"duration" of disarmament must be comparable. Maj. Op. at 5.⁵But the identified individualized examples of arms restrictions - going-armed and surety laws - did not impose permanent disarmaments; they were temporary restrictions.⁶ The referenced categorical bans are likewise invalid comparators. Because the Second Amendment protects "the people," U.S. Const. amend. II, the disarmament of Loyalists - those whose allegiance was to the Crown and not the United States - cannot be viewed as analogous to the presumptive permanent disarmament of "the people," understood as members of the national "political community." Wolford v.

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Lopez, 609 U.S. 185, 195 (2026) (quoting Heller, 554 U.S. at 580); cf. Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev. 139, 159 (2007) (explaining that in Revolutionary War-era disarmaments, "one can discern an attempt to preserve the connection between the right to keep arms and membership in the body politic"). And the other categorical bans - of Catholics, American Indians, and slaves - would be unconstitutional today as forms of invidious discrimination. See Range, 124 F.4th at 229 (explaining that "restrictions based on race and religion now would be unconstitutional under the First and Fourteenth Amendments"). As such, those restrictions should be treated as "cautionary tales," not as historical comparators, to avoid validating the invidious discrimination inherent in them. United States v. Rahimi,

602 U.S. 680, 776 (2024) (Thomas, J., dissenting); cf. Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464, 482 (2020) (explaining that the anti-Catholic Blaine Amendment and state

"no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause").

Other historical practices effectuating an indirect permanent disarmament - such as the death penalty and life imprisonment - are not analogous to § 922(g)(1). To be a relevant comparator, the historical restriction must relate to the keeping or bearing of arms. See Rahimi, 602 U.S. at 689 (explaining "that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction 'is consistent with the Nation's historical tradition of firearm regulation'" (quoting Bruen, 597 U.S. at 24)); see also United States v. Bonner, 159 F.4th 338, 343-44 (5th Cir. 2025) (Willett, J., concurring). And the imposition of those punishments was not directly associated with the keeping or bearing of arms. Even more, those measures were punitive, applying only to persons then subject to criminal sentences, as opposed to free persons. See Folajtar v. Att'y Gen., 980 F.3d

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897, 912, 921 (3d Cir. 2020) (Bibas, J., dissenting) (explaining that "[t]he colonists did not treat ex-cons as a permanently exiled underclass" and asserting that "[i]t makes no sense to argue that the historical treatment of felons about to be executed licenses us to strip surviving felons of their rights once they have paid their debts to society"). Thus, the historical imposition of the death penalty and life- imprisonment are not "relevantly similar" to the presumptive permanent disarmament of free persons effectuated by § 922(g)(1). Bruen, 597 U.S. at 29.

As a way around the lack of a historical tradition of permanent disarmament of free persons, the United States contends that disarmament under § 922(g)(1) is not permanent. Specifically, it argues that through the administrative process set forth in 18 U.S.C. § 925(c), a felon may be rearmed as long as he or she "will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." Id. That is beside the point because even with an operational § 925(c) program, § 922(g)(1) still presumptively disarms felons who were otherwise free persons on a permanent basis, and, as explained above, there is no analogous historical tradition of presumptive permanent disarmament.⁷The United States' position also

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fails as applied to Bost because at the time of his § 922(g)(1) offense in January 2020, the § 925(c) program was not operational due to a lack of funding through an appropriations bar. See United States v. Bean, 537 U.S. 71, 75 & n.3 (2002). So, despite the recent revival of the § 925(c) program,⁸at the time of Bost's felon-in-possession offense, § 922(g)(1) functioned as a permanent disarmament.

In sum, without a historical basis for the presumptive permanent disarmament of felons after they have repaid their debts to society, § 922(g)(1) is unconstitutional as applied to such persons.⁹

of supervised release or parole, he becomes a free person. He does not have to await a pardon, expungement, or restoration to have free speech rights, to freely exercise religion, to be protected from unreasonable searches and seizures, or to benefit from equal protection of the laws. Those constitutional rights could not be presumptively permanently denied to an otherwise free person, and a felon who has fully discharged his criminal punishment likewise cannot be subjected to a presumptive permanent disarmament of the right to keep and bear arms.

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increased. See, e.g., 18 U.S.C. § 3553(a)(2)(C) (requiring consideration for federal sentences of the need "to protect the public from further crimes of the defendant"); id. at § 3583(c) (requiring, by cross-reference to 18 U.S.C. § 3553(a)(2)(C), consideration of the need to protect the public from further crimes of the defendant in "determining whether to include a term of supervised release" and its length). Relatedly, the terms of supervised release or parole for dangerous criminals may include restrictions on the ability to keep and bear arms. See Esteras v. United States, 606 U.S. 185, 192 (2025) (explaining that "'[s]upervised release is a form of postconfinement monitoring that permits a defendant a kind of conditional liberty by allowing him to serve part of his sentence outside of prison,' subject to conditions on his behavior" (quoting Mont v. United States, 587 U.S. 514, 523 (2019))). Nor does the unconstitutional application of § 922(g)(1) mean that federal and state legislators are powerless to act with respect to the prevention of gun violence; instead, it reflects the governing legal standard that to comply with the Second Amendment, any such regulation must be consistent with our Nation's historical tradition of firearms regulation.

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Counsel for Appellant Elisa A. Long

Jasmine R. Sola [Argued before the en banc court] FEDERAL PUBLIC DEFENDER'S OFFICE

Patrick K. Nightingale [Argued before the panel]

PKN LAW

Counsel for Appellee Donovan J. Cocas [Argued before the panel] Laura S. Irwin

U.S. ATTORNEY'S OFFICE

Vivek Suri [Argued before the en banc court]

U.S. DEPARTMENT OF JUSTICE

Counsel for Amicus Curiae National Association of Criminal Defense Lawyers

Michael B. Kimberly

WINSTON TAYLOR

Lisa A. Mathewson

MATHEWSON LAW

Counsel for Amicus Curiae State of New Jersey Viviana M. Hanley

Jake Mazeitis

N.J. ATTORNEY GENERAL'S OFFICE

Counsel for Amicus Curiae State of Delaware Ian R. Liston

DEL. ATTORNEY GENERAL'S OFFICE

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