United States v. Andre Michael Dubois

139 F.4th 887

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 2, 2025
• Docket: 22-10829
• Status: Published

Opinion

USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 1 of 31

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10829 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDRE MICHAEL DUBOIS, a.k.a. Larry Davis, a.k.a. Andre Dubois,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cr-00305-WMR-JKL-1 USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 2 of 31

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and ABUDU, Circuit Judges. WILLIAM PRYOR, Chief Judge: This appeal on remand from the Supreme Court requires us to decide whether United States v. Rahimi, 144 S. Ct. 1889 (2024), abrogated our decision in United States v. Rozier, 598 F.3d 768, 770– 71 (11th Cir. 2010), upholding the federal law that bars felons from possessing firearms and ammunition, see 18 U.S.C. § 922(g)(1). Fol- lowing supplemental briefing, we conclude that Rahimi—like New York State Rif le & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022)—did not abrogate our holding in Rozier that section 922(g)(1) is consti- tutional under the Second Amendment. We reinstate our previous opinion and affirm Andre Dubois’s convictions and sentence. I. BACKGROUND In 2018, Andre Dubois entered an Express Copy Print & Ship store in Suwanee, Georgia, and attempted to ship a box containing firearms to the Commonwealth of Dominica. Federal officials seized the shipment and charged Dubois with three counts: at- tempting to smuggle firearms out of the United States, see 18 U.S.C. § 554; delivering firearms to a common carrier for shipment USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 3 of 31

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without written notice, see id. § 922(e); and possessing a firearm as a felon, see id. § 922(g)(1). At trial, the parties stipulated that Dubois “was a convicted felon at the time of the offense charged in this case” and that he “had knowledge of this felony conviction.” The prosecution then presented evidence that Dubois had attempted to ship a loaded re- volver, two disassembled pistols, and over 400 bullets to Dominica under a false name. Federal officials seized the package after a car- rier employee identified a suspicious object during an x-ray screen. The firearms and ammunition were wrapped in aluminum foil and hidden in two individually packaged deep fryers. Using the ship- ping store’s surveillance footage, agents identified Dubois as the shipper by tracing the logo on the shipper’s sweatshirt to Dubois’s former employer. At the close of the prosecution’s case, Dubois moved for ac- quittal on all counts. See FED. R. CRIM. P. 29(a). He argued that the prosecution failed to introduce sufficient evidence that Dubois knew that the package that he attempted to ship contained fire- arms. And he argued that his section 922(g)(1) charge was uncon- stitutional because nonviolent felons maintain a Second Amend- ment right to possess firearms—although he acknowledged that “existing precedent” foreclosed this argument. The district court denied Dubois’s motion, and the jury convicted him on all counts. A probation officer prepared a presentence investigation re- port recommending an imprisonment range of 130 to 162 months and a fine range of $25,000 to $250,000 under the Sentencing USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 4 of 31

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Guidelines. This report detailed that Dubois had previously been convicted of multiple felonies, including possession of marijuana with intent to distribute, sale of marijuana, possession of the psy- chedelic 5-MeO-DIPT, possession of THC oil, possession of mov- ies for the purpose of unlawful distribution, and financial identity fraud. And it documented that Dubois had committed his latest round of crimes while on probation. Dubois did not dispute any of these factual findings from the report. The district court overruled Dubois’s other objections and sentenced him to a below-guideline prison sentence of 110 months and a low-end fine of $25,000. Dubois appealed his convictions and sentence. While his ap- peal was pending, but before the parties filed their briefs, the Su- preme Court decided in Bruen that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” 142 S. Ct. at 2122. Dubois later moved to stay his appeal pending the Supreme Court’s decision in Rahimi. We denied his motion to stay and his motion for reconsid- eration. On appeal, we held that Dubois’s challenge under the Sec- ond Amendment failed because Bruen did not abrogate our deci- sion in Rozier, which upheld the felon-in-possession ban. United States v. Dubois, 94 F.4th 1284, 1291–93 (11th Cir. 2024). And we re- jected the other challenges that Dubois raised to his convictions and sentence. Id. at 1293–1303. We ruled that sufficient evidence supported the jury’s finding that Dubois knew that he possessed a firearm, Dubois’s state marijuana conviction was a “controlled USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 5 of 31

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substance offense” under the Sentencing Guidelines, application of the stolen-gun enhancement on a strict-liability basis did not vio- late due process, and Dubois’s fine was not plainly erroneous. Id. Dubois filed a petition for a writ of certiorari in the Supreme Court. The Court granted the petition, vacated the judgment, and remanded the case back to us “for further consideration in light of . . . Rahimi.” Dubois v. United States, 145 S. Ct. 1041, 1042 (2025). On remand, we granted Dubois’s motion for supplemental briefing. We directed the parties to brief two issues: (1) “Did [Rahimi] abro- gate our prior precedent upholding section 922(g)(1)?” and (2) “If Rahimi abrogated our prior precedent, does section 922(g)(1) vio- late the Second Amendment as applied to Appellant?” Dubois did not ask us to revisit any of the other issues that we decided in our earlier opinion. II. STANDARD OF REVIEW We review challenges to the constitutionality of a statute de novo. United States v. Fleury, 20 F.4th 1353, 1362 (11th Cir. 2021). III. DISCUSSION This appeal on remand from the Supreme Court turns on whether Rahimi abrogated our prior decision in Rozier upholding the felon-in-possession ban. Dubois initially raised other challenges to his convictions and sentence unrelated to the Second Amend- ment. Yet “[o]n remand these issues were not re-briefed, and noth- ing in [Rahimi] alters our consideration of those issues.” United States v. Ruan, 56 F.4th 1291, 1295 n.1 (11th Cir. 2023). So this opin- ion reinstates our prior opinion as to those issues and updates only USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 6 of 31

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the discussion in Part III.A of our earlier opinion about the consti- tutionality of section 922(g)(1) to take account of Rahimi. Dubois, 94 F.4th at 1291–93. Dubois challenges the denial of his motion for a judgment of acquittal on the felon-in-possession charge. See 18 U.S.C. § 922(g)(1). Dubois does not dispute that his conduct falls squarely within the federal offense: he possessed firearms and ammunition after sustaining a felony conviction for drug trafficking. He instead argues that the statute violates his right to bear arms under the Sec- ond Amendment. Dubois concedes that our precedent bars his challenge; we upheld section 922(g)(1) under the Second Amend- ment in Rozier, 598 F.3d at 770–71. But Dubois argues that Rahimi abrogated Rozier and requires us to vacate his conviction. We disa- gree. In District of Columbia v. Heller, the Supreme Court sustained a Second Amendment challenge to a District of Columbia law that prohibited private possession of handguns. 554 U.S. 570, 635 (2008). The Court adopted an approach “bas[ed] o[n] both text and his- tory” for analyzing gun restrictions and ruled the prohibition un- constitutional. Id. at 595. It held that law-abiding citizens have a Second Amendment right to possess handguns in the home for self- defense. Id. at 635–36. Heller cautioned that the Second Amendment right “is not unlimited.” Id. at 626. Importantly, the Court stated that “nothing in [its] opinion should be taken to cast doubt on longstanding pro- hibitions on the possession of firearms by felons and the mentally USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 7 of 31

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ill.” Id. The Court labeled these regulations “presumptively lawful.” Id. at 627 n.26. And it explained that the Second Amendment guar- antees a right to “law-abiding, responsible citizens” to “use arms in defense of hearth and home.” See id. at 635. Nearly two years after Heller, we rejected a challenge to sec- tion 922(g)(1) in Rozier. Like Dubois, Rozier possessed a firearm and ammunition after he was convicted of several felony drug crimes. Rozier, 598 F.3d at 769 & n.1. He challenged his conviction on the ground that section 922(g)(1) violates the Second Amend- ment. Id. at 770. We disagreed because, under Heller, “statutes dis- qualifying felons from possessing a firearm under any and all cir- cumstances do not offend the Second Amendment.” Id. at 771. “[T]he first question” under Heller, we explained, “is whether one is qualified to possess a firearm.” Id. at 770. And felons are unquali- fied as “a class” because they are not “law-abiding citizen[s].” Id. at 771. Heller “made this clear” by labeling the felon-in-possession ban “‘a presumptively lawful longstanding prohibition.’” Id. (quoting United States v. White, 593 F.3d 1199, 1205–06 (11th Cir. 2010)); ac- cord McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill’ . . . . We repeat those assurances here.” (quoting Heller, 554 U.S. at 626)). And we said that this language from Heller was “not dicta” because it limited the Second Amendment right to “law-abiding and qualified individuals.” Rozier, 598 F.3d at 771 n.6. USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 8 of 31

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After Heller and Rozier came Bruen, which involved a chal- lenge to New York’s gun-licensing regime. 142 S. Ct. at 2122. New York prohibited law-abiding citizens from obtaining a license to carry outside the home unless they first proved “a special need for self-defense.” Id. The Court ruled the scheme unconstitutional be- cause “the Second and Fourteenth Amendments protect an individ- ual’s right to carry a handgun for self-defense outside the home.” Id. Bruen began its analysis by rejecting, as inconsistent with Hel- ler, the second part of a two-step test that then prevailed in most circuits. See id. at 2125–30. Under that test, a court would first ask whether the challenged law burdened conduct that falls within the scope of the Second Amendment, “as historically understood.” E.g., United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). If it did, the court would review the regulation under either intermedi- ate or strict scrutiny. See id. We embraced this two-part framework in dicta beginning in 2012, see GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012), but we have never actually applied the second, means-end-scrutiny step, see United States v. Jimenez-Shilon, 34 F.4th 1042, 1052–53 (11th Cir. 2022) (Newsom, J., concurring). Bruen approved “[s]tep one of the predominant framework” as “broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history.” 142 S. Ct. at 2127. But Bruen rejected the second, “means-end scrutiny” step as incompatible with Heller, which “expressly rejected” applying a USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 9 of 31

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“judge-empowering interest-balancing inquiry” to analyze Second Amendment challenges. Id. at 2127, 2129 (internal quotation marks omitted) (quoting Heller, 554 U.S. at 634). Bruen then reiterated that “Heller’s text-and-history standard” is the correct test for determin- ing the constitutionality of gun restrictions. See id. at 2138. The Supreme Court left no doubt that it viewed its decision as a faithful application of Heller, not a departure from it. See, e.g., id. at 2122 (stating that its holding is “consistent with Heller”); id. at 2131 (stating that “[t]he test that [the Court] set forth in Heller” is the same one that courts must “apply today”); id. (stating that its test “[f ]ollow[s] the course charted by Heller”). That approval of Heller included the recognition that the Second Amendment is “subject to certain reasonable, well-defined restrictions.” Id. at 2156 (citing Heller, 554 U.S. at 581). Although the Court did not mention felon-in-possession bans, it confirmed that Heller correctly “relied on the historical understanding of the Amendment to demark the limits on the exercise of that right.” Id. at 2128. And Bruen, like Hel- ler, repeatedly described the right as extending only to “law-abid- ing, responsible citizens.” See, e.g., id. at 2131 (internal quotation marks omitted) (quoting Heller, 554 U.S. at 635). Finally, after Bruen came Rahimi, which considered a chal- lenge to the federal law prohibiting individuals subject to domestic violence restraining orders from possessing firearms. 144 S. Ct. at 1894; see also 18 U.S.C. § 922(g)(8). In applying the Bruen history- and-tradition test, the Supreme Court warned that “some courts have misunderstood the methodology of our recent Second USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 10 of 31

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Amendment cases,” which “were not meant to suggest a law trapped in amber.” Rahimi, 144 S. Ct. at 1897. Rahimi reiterated that a historical analogue “need not be a ‘dead ringer’ or a ‘historical twin’” to establish that a modern regulation “comport[s] with the principles underlying the Second Amendment.” Id. at 1898 (altera- tion adopted) (quoting Bruen, 142 S. Ct. at 2133). And after analo- gizing to surety and going armed laws from the Founding era, the Court “ha[d] no trouble concluding that [s]ection 922(g)(8) sur- vive[d] Rahimi’s facial challenge.” Id. at 1899–1902. Rahimi continued to rely on Heller. The Supreme Court reit- erated that “the right secured by the Second Amendment is not un- limited.” Id. at 1897 (internal quotation marks omitted) (quoting Heller, 554 U.S. at 626). The Court made clear that it was “not sug- gest[ing] that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.” Id. at 1901 (citing Heller, 554 U.S. at 626). And it once again endorsed Heller’s understanding that prohibitions “on the possession of fire- arms by ‘felons and the mentally ill . . .’ are ‘presumptively lawful.’” Id. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26). To determine whether Rahimi abrogated Rozier, we apply our prior-panel-precedent rule: “‘a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or under- mined to the point of abrogation by the Supreme Court or by this court sitting en banc.’” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 11 of 31

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2008)). An intervening Supreme Court decision abrogates our prec- edent only if the intervening decision is both “clearly on point” and “clearly contrary to” our earlier decision. Edwards v. U.S. Att’y Gen., 97 F.4th 725, 743 (11th Cir. 2024) (emphasis omitted) (citation and internal quotation marks omitted). If the Supreme Court “never discussed” our precedent and did not “otherwise comment[] on” the precise issue before the prior panel, our precedent remains binding. See United States v. Vega-Castillo, 540 F.3d 1235, 1238–39 (11th Cir. 2008). To abrogate a prior-panel precedent, “the later Su- preme Court decision must ‘demolish’ and ‘eviscerate’ each of its ‘fundamental props.’” Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1223 (11th Cir. 2022) (alterations adopted) (citation omitted). So, for example, if our precedent relied on “a line of Su- preme Court precedents that the [Supreme] Court itself empha- sizes in a later decision is not implicated by that later decision,” the Supreme Court’s intervening decision “cannot have” abrogated our precedent. Id. As we decided in our earlier opinion, Bruen did not abrogate Rozier. Because the Supreme Court “made it clear in Heller that [its] holding did not cast doubt” on felon-in-possession prohibitions, McDonald, 561 U.S. at 786 (plurality opinion), and because the Court made it clear in Bruen that its holding was “[i]n keeping with Heller,” 142 S. Ct. at 2126, Bruen could not have clearly abrogated our precedent upholding section 922(g)(1), see Del Castillo, 26 F.4th at 1223–25. Indeed, the Bruen majority did not mention felons or section 922(g)(1). See Vega-Castillo, 540 F.3d at 1238–39. USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 12 of 31

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Dubois argues that we may depart from Rozier because Bruen abrogated “[a]ll prior precedent relying on the two-step anal- ysis.” But Rozier upheld section 922(g)(1) on the threshold ground that felons are categorically “disqualified” from exercising their Second Amendment right under Heller. Rozier, 598 F.3d at 770–71 (citation and internal quotation marks omitted). Rozier interpreted Heller as limiting the right to “law-abiding and qualified individuals” and as clearly excluding felons from those categories by referring to felon-in-possession bans as presumptively lawful. Id. at 771 & n.6 (emphasis omitted). And far from “demolish[ing]” or “evis- cerat[ing]” Rozier’s reliance on Heller, see Del Castillo, 26 F.4th at 1224, Bruen repeatedly stated that its decision was faithful to Heller. Rahimi also did not abrogate Rozier. The only time that the Rahimi majority mentioned felons was to reiterate Heller’s conclu- sion that prohibitions “on the possession of firearms by ‘felons and the mentally ill . . .’ are ‘presumptively lawful.’” 144 S. Ct. at 1902 (quoting Heller, 554 U.S. at 626, 627 n.26). This endorsement of the underlying basis for our prior holding that section 922(g)(1) does not violate the Second Amendment suggests that Rahimi rein- forced—not undermined—Rozier. That the Court also clarified that it was “not suggest[ing] that the Second Amendment prohibits the enactment of laws banning the possession of guns by catego- ries of persons thought by a legislature to present a special danger of misuse” further confirms that Rozier remains good law. Id. at 1901 (citing Heller, 554 U.S. at 626). USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 13 of 31

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Dubois contends that the Supreme Court nevertheless abro- gated Rozier when Rahimi rejected the argument that someone “may be disarmed simply because he is not ‘responsible.’” Id. at 1903 (citation omitted). But Dubois misreads Rozier. In Rozier, we relied on Heller’s directive that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” to conclude that felons are unqualified to possess firearms. Rozier, 598 F.3d at 771 (internal quotation marks omitted) (quoting Heller, 554 U.S. at 626). Nothing in Rozier sug- gested that “whether one is qualified to possess a firearm” turns on whether that person is responsible. Id. at 770. Indeed, the word “re- sponsible” does not appear in our opinion. Because Rozier did not mention—much less rely on—Heller’s reference to whether a citi- zen is responsible, that now-rejected language could not have been a “fundamental prop[]” of our decision. Del Castillo, 26 F.4th at 1223 (citation and internal quotation marks omitted). We require clearer instruction from the Supreme Court be- fore we may reconsider the constitutionality of section 922(g)(1). Rozier continues to bind us, so Dubois’s challenge based on the Sec- ond Amendment fails. IV. CONCLUSION We reinstate our prior decision and AFFIRM Dubois’s con- victions and sentence. USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 14 of 31

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WILLIAM PRYOR, Chief Judge, joined by ROSENBAUM, Circuit Judge, concurring: Although our prior-panel-precedent rule requires us to re- ject Andre Dubois’s constitutional challenge to the federal felon-in- possession ban, see United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir. 2010); 18 U.S.C. § 922(g)(1), I write separately to explain that the outcome would likely be the same even if we were deciding this appeal on a clean slate. “Taken together,” the Founding-era tra- ditions of punishing felons with death and forfeiture and categori- cally disarming certain groups deemed to pose a risk of misusing firearms suggest that section 922(g)(1) is “consistent with the prin- ciples that underpin our regulatory tradition.” United States v. Rahimi, 144 S. Ct. 1889, 1898, 1901 (2024). “When the Second Amendment’s plain text covers an indi- vidual’s conduct, the Constitution presumptively protects that con- duct.” N.Y. State Rif le & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129– 30 (2022). “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tra- dition of firearm regulation.” Id. at 2130. When evaluating “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” courts “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 142 S. Ct. at 2132). This inquiry turns on “[w]hy and how the regu- lation burdens the right.” Id. A modern regulation shares a “why” with a historical analogue when a legislature imposed it “for similar USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 15 of 31

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reasons.” Id. And a modern regulation shares a “how” with a his- torical analogue when it burdens the right to bear arms “to an ex- tent [not] beyond what was done at the [F]ounding.” Id. The gov- ernment ultimately “bears the burden” to prove that a modern reg- ulation is “‘relevantly similar’ to laws that our tradition is under- stood to permit.” Id. at 1897–98 (quoting Bruen, 142 S. Ct. at 2132). Even if we assume that “the Constitution presumptively protects” felons’ right to possess firearms and ammunition, the felon-in-possession ban likely does not run afoul of the Second Amendment because “it is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. Two Founding-era traditions—the punishment of felons with death and forfeiture and the categorical disarmament of groups deemed to pose a risk of misusing firearms—together support the conclusion that section 922(g)(1) is “consistent with the principles that under- pin our regulatory tradition.” Rahimi, 144 S. Ct. at 1898. I address each of these “distinct legal regimes” in turn. Id. at 1899. There is a long tradition of legislatures subjecting felons to severe punishment for their crimes. In eighteenth-century England, “[t]he idea of [a] felony” was “so generally connected with that of capital punishment, that . . . it [was] hard to separate them.” 4 WILLIAM BLACKSTONE, COMMENTARIES *98. Felony convictions of- ten led to the escheat of the felon’s estate and the forfeiture of his real and personal property. Id. at *94, *380–86. Even felons con- victed of nonviolent offenses like fraudulent bankruptcy, violating quarantine, or forging a marriage license faced capital punishment USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 16 of 31

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and forfeiture of their property. Id. at *94–95, *156, *161–63. And when legislatures exercised discretion to “make[] any new offen[s]e [a] felony, the law implie[d] that it shall be punished with death . . . as well as with forfeiture.” Id. at *98; see also 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 703 (London, E. & R. Nutt & R. Gosling 1736) (noting that “there may be and frequently are in acts of parliament . . . [the] making [of ] new felonies”). In America, death continued to be “the standard penalty for all serious crimes at the time of the [F]ounding.” Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (citation and internal quotation marks omitted). At the Founding, “felonies included treason, murder, homicide, burning of houses, burglary, robbery, rape, chance-med- ley, and petit larceny[,] and . . . punishments for felonies ranged from death and forfeiture of goods and chattels to terms of impris- onment and hard labor.” United States v. Campbell, 743 F.3d 802, 811 (11th Cir. 2014) (citing 2 TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY (3d ed. 1783)). Notably, as in England, colonies—and later states—continued routinely to sentence to death even those convicted of nonviolent felonies like counterfeit- ing and theft. See STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 7–8, 131, 140 (2002); United States v. Duarte, No. 22-50048, slip op. at 57 & nn.9–10 (9th Cir. May 9, 2025) (en banc) (Collins, J., concurring in the judgment). Some jurists have warned against relying on this tradition because “[d]uring the period leading up to the [F]ounding, the con- nection between felonies and capital punishment started to fray.” USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 17 of 31

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E.g., Kanter v. Barr, 919 F.3d 437, 459 (7th Cir. 2019) (Barrett, J., dis- senting). As we have explained, “[a]t the time of the Founding, there was ambiguity in the meaning of a felony.” Campbell, 743 F.3d at 811 (alteration adopted) (citation and internal quotation marks omitted). But that some Founding-era legislatures began to impose lesser sentences for some felonies does not mean that modern leg- islatures have since lost the power to punish felonies severely. Cf. Nat’l Rif le Ass’n v. Bondi, 133 F.4th 1108, 1125 (11th Cir. 2025) (en banc) (“That Florida has lowered the age of majority for some rights does not mean that it has less power to restrict the rights of minors than it did at the Founding.”); see also Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring) (cautioning against “assum[ing] that [F]ounding-era legislatures maximally exercised their power to reg- ulate, thereby adopting a ‘use it or lose it’ view of legislative au- thority”). Indeed, that felonies encompassed more criminal con- duct and had more varied punishment at the Founding than they did at common law in England confirms the breadth of legislative discretion to decide which crimes are serious enough to be desig- nated as felonies and how to punish them. Cf. Campbell, 743 F.3d at 811. And, crucially for understanding the outer bounds of this power, the practice of punishing even nonviolent felonies with death persisted at the Founding. See BANNER, supra, at 7–8, 131, 140. There is also a long tradition of legislatures categorically dis- arming certain groups of people thought to “present a special dan- ger of misuse.” Rahimi, 144 S. Ct. at 1901. In the centuries leading up to the Founding, “English law . . . disarmed not only brigands and highwaymen but also political opponents and disfavored USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 18 of 31

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religious groups.” Id. at 1899. Among other examples, Parliament enacted a law that barred any Catholic who did not renounce his faith from “hav[ing] or keep[ing] in his House or elsewhere . . . any Arms[,] Weapons[,] Gunpowder[,] or Ammunition (other th[a]n such necessary Weapons as shall be allowed to him by Order of the Justices of the Peace . . . for the defen[s]e of his House or person).” An Act for the Better Secureing the Government by Disarming Pa- pists and Reputed Papists 1689, 1 W. & M., Sess. 1, c. 15 (Eng.). This “disarmament of Catholics . . . ref lect[ed] Protestant fears that Catholics could not be trusted to obey the law”—not “the notion that every single Catholic was dangerous.” Range v. Att’y Gen. U.S., 124 F.4th 218, 256 (3d Cir. 2024) (en banc) (Krause, J., concurring in the judgment); see also ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 115 (2011) (explaining that “the Protestant majority” enacted these laws because they viewed Catholics as “untrustworthy”). The English tradition of group disarmament carried over to America. Virginia initially “disarmed nonconformist Protestants in the 1640s due to their rejection of the King’s sovereign power over religion.” Range, 124 F.4th at 258 (Krause, J., concurring in the judg- ment). And then it, along with Maryland and Pennsylvania, en- acted statutes in the 1750s that disarmed Catholics. See Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 WYO. L. REV. 249, 263 (2020). Several colo- nies imposed group restrictions for nonreligious reasons too. Mar- yland, for example, “disarmed anyone who refused to take an oath of allegiance to King George III,” and Connecticut “disfranchised USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 19 of 31

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and prohibited from keeping arms, holding office, or serving in the military” anyone “who libeled or defamed acts of the Continental Congress.” Id. at 263–64. In addition, “[l]aws disarming groups such as slaves, freed blacks, Indians, and those of mixed-race ances- try were common.” SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA 28–29 (2006). And even though “state constitutions and the Second Amendment had largely eliminated governmental au- thority to disarm political opponents on this side of the Atlantic” by the time of the Founding, Rahimi, 144 S. Ct. at 1899 (emphasis added), “the pernicious tradition of prohibiting slaves and Native Americans from possessing firearms persisted” after ratification, Range, 124 F.4th at 264 (Krause, J., concurring in the judgment); see also STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE PEOPLE OR A PRIVILEGE OF THE RULING CLASS? 226 (2021) (explaining that the restrictions on slaves lasted “[f ]rom colonial times until slavery was abolished”). Fortunately, most of these regulations would be impermis- sible if enacted today. Other constitutional provisions, including the First and Fourteenth Amendments, prohibit categorical dis- armaments based on religion or race. See U.S. CONST. amends. I, XIV. And these constitutional prohibitions may undermine the per- suasive power or analogical usefulness of the categorical disarma- ments. But because “[h]istorical laws disarming disaffected groups . . . have a long lineage stretching all the way back to England and at least imply an understanding of the right to keep and bear arms that allowed for disarmament of large segments of the USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 20 of 31

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population,” Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders, in NEW HISTORIES OF GUN RIGHTS AND REGULATION: ESSAYS ON THE PLACE OF GUNS IN AMERICAN LAW AND SOCIETY 131, 143–44 ( Joseph Blocher et al. eds., 2023), courts might be remiss to ignore them in our attempt to decipher “the principles that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at 1898. The principles underlying this tradition could justify only a narrow set of modern regulations. As Judge Collins has explained, although “[t]he tradition that emerges from these historical prece- dents is not particularly impressive,” it does appear to “recognize[] some measure of legislative discretion to impose disarmament on particular categories of persons who are thought to present a ‘spe- cial danger of misuse.’” Duarte, slip op. at 48, 50 (Collins, J., concur- ring in the judgment) (quoting Rahimi, 144 S. Ct. at 1901). And United States v. Rahimi suggests that “a special danger of misuse” might be a sufficient legislative rationale for “banning the posses- sion of guns by categories of persons.” 144 S. Ct. at 1901. Yet courts would be wise to “confin[e] any legislative categorical disarma- ment power to only those historically based classes of persons who could be subjected to equivalent or greater disabilities” at the Founding to “avoid[] endorsing the sort of freewheeling legislative power to categorically disarm that the Second Amendment sought to eliminate.” Duarte, slip op. at 52 (Collins, J., concurring in the judgment). Felons often faced punishment more severe than dis- armament at the Founding. So the tradition of group disarmament might inform the constitutionality of felon-in-possession bans USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 21 of 31

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today. In contrast, this tradition would not support disarmament of other groups that did not face comparable punishment at the Founding on the ground that a legislature today is concerned that the group might misuse firearms. With these principles in mind, the long tradition of punish- ing felons with death and forfeiture when considered with the long tradition of categorically disarming certain groups deemed to pose a risk of misusing firearms is likely sufficient to uphold sec- tion 922(g)(1). The felon-in-possession ban shares a similar “why” with these historical analogues. Punishment of those convicted of felonies—both at the Founding and now—has been motivated by a desire to “cut[] [them] off from the power of doing further mis- chief.” Joseph Story, Death Punishment, in 4 ENCYCLOPEDIA AMERICANA 140–45 (1st ed. 1830), reprinted in Joseph Story on Capital Punishment, 43 CALIF. L. REV. 76, 80 ( John C. Hogan ed., 1955); ac- cord 4 BLACKSTONE, supra, at *11–12 (listing “depriving the party in- juring of the power to do future mischief ” as a legitimate object of punishment); see also Duarte, slip op. at 59 (Collins, J., concurring in the judgment) (observing that “the death penalty, like disarma- ment, is in part aimed at addressing the problem of potential future lawlessness by demonstrated lawbreakers”). Group disarmaments were often based on similar concerns, as the “historical record sug- gests that legislatures traditionally possessed discretion to disqual- ify categories of people from possessing firearms to address a dan- ger of misuse by those who deviated from legal norms, not merely to address a person’s demonstrated propensity for violence.” United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024) (Colloton, C.J.). USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 22 of 31

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The felon-in-possession ban is also comparable to these his- torical analogues in “how” it burdens the right to bear arms. In Rahimi, the Supreme Court ruled that “if imprisonment was per- missible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarma- ment that [s]ection 922(g)(8) imposes is also permissible.” 144 S. Ct. at 1902 (emphasis added). That felons could be permanently de- prived of their rights to life, liberty, and property at the Founding suggests that class-wide disarmament of all felons today would be “permissible” as a “lesser restriction.” Id.; see also Medina v. Whita- ker, 913 F.3d 152, 158 (D.C. Cir. 2019) (“[I]t is difficult to conclude that the public, in 1791, would have understood someone facing death and estate forfeiture to be within the scope of those entitled to possess arms.”). This conclusion that the “how” of section 922(g)(1) is suffi- ciently analogous is bolstered when legislatures’ wide latitude to punish felons severely is “[t]aken together” with the long tradition of categorical disarmament of groups identified to be at risk of misusing firearms. Rahimi, 144 S. Ct. at 1901. Because Founding- era legislatures “had a recognized power to define serious crimes as felonies, and to attach the penalty of death and forfeiture of es- tate to them, the category of convicted ‘felons’ is one that then could categorically be subjected to legal disabilities that equaled or exceeded lifetime disarmament.” Duarte, slip op. at 58 (Collins, J., concurring in the judgment). Considering these traditions together also guards against stretching Rahimi’s endorsement of greater-in- cludes-the-lesser reasoning too far. “Stripping convicted felons of USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 23 of 31

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their First Amendment rights is also less severe a consequence than death, but no one could seriously contend that such a statute would be consistent with the First Amendment.” Id. at 59 n.11. Yet, here, “[t]he crucial difference is that, in the context of the Second Amendment (in contrast to the First Amendment), there was, at the time of the [F]ounding, a well-recognized (if limited) legislative power to strip specified categories of persons of their right to bear arms.” Id. And “there [was] no [historical] requirement for an indi- vidualized determination of dangerousness as to each person in a class of prohibited persons.” Jackson, 110 F.4th at 1128; accord Du- arte, slip op. at 36–37. This measured understanding of the limits of these historical analogues avoids “read[ing] a principle at such a high level of generality that it waters down the right.” Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring); see also Bruen, 142 S. Ct. at 2133 (stating that “courts should not uphold every modern law that remotely resembles a historical analogue” (citation and internal quotation marks omitted)). When the interplay between the prin- ciples underlying these two long traditions is considered, sec- tion 922(g)(1) does not appear to regulate the right to bear arms “to an extent beyond what was done at the [F]ounding.” Rahimi, 144 S. Ct. at 1898. Notably, section 922(g)(1) does not apply to all felons nor im- pose permanent disarmament. Section 921(a)(20) excludes from the class of felons barred from possessing firearms those whose “offenses pertain[ed] to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regula- tion of business practices.” 18 U.S.C. § 921(a)(20)(A). That same USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 24 of 31

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section also exempts felons from coverage when their underlying convictions “ha[ve] been expunged . . . or set aside,” they “ha[ve] been pardoned,” or they “ha[ve] had [their] civil rights restored.” Id. § 921(a)(20). And section 925(c) permits felons to apply to the Attorney General “for relief from the disabilities imposed by [sec- tion 922(g)(1)],” id. § 925(c)—although this option has been “ren- dered inoperative” because Congress has barred the Attorney Gen- eral from using appropriated funds to review these applications, see Logan v. United States, 552 U.S. 23, 28 n.1 (2007). That a modern “law is less restrictive than the law at the Founding in some ways” can be evidence that the modern law is “consistent with our regulatory tradition in ‘how’ it burdens the right,” Nat’l Rif le Ass’n, 133 F.4th at 1123, so these features of how section 922(g)(1) operates in prac- tice further support its constitutionality. The lack of directly on-point Founding-era laws is neither dispositive nor surprising. The Supreme Court has made clear that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.” Rahimi, 144 S. Ct. at 1897–98. It has also counseled that “analogical reasoning requires only that the government identify a well-established and repre- sentative historical analogue, not a historical twin.” Bruen, 142 S. Ct. at 2133. “To require that a modern law perfectly match a law from the Founding era erroneously ‘assumes that [F]ounding-era legis- latures maximally exercised their power to regulate.’” Nat’l Rif le Ass’n, 133 F.4th at 1115 (quoting Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring)). And “[t]raditions are ref lected in practices, but . . . are not reducible to practices,” so New York State Rif le & Pistol Ass’n USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 25 of 31

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v. Bruen “does not impose a mechanical test in which the govern- ment must find the same kind of historical law for every modern law it wishes to enact.” J. Joel Alicea, Bruen Was Right, 174 U. PA. L. REV. (forthcoming 2025) (manuscript at 22), https://perma.cc/C592-T8GA. As such, the absence of a law ex- plicitly banning felons from possessing firearms and ammunition at the Founding is not fatal to the constitutionality of sec- tion 922(g)(1). The absence of a historical analogue that more closely re- sembles section 922(g)(1) is potentially explainable because it was understood at the Founding that criminals could be deprived of the right to bear arms. Several sources suggest that an individual’s law- abiding status was connected to his right to bear arms. Antifederal- ists at the Pennsylvania ratifying convention proposed a precursor to the Second Amendment that stated, “[T]he people have a right to bear arms . . . ; and no law shall be passed for disarming the peo- ple or any of them unless for crimes committed, or real danger of pub- lic injury from individuals.” 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 662, 665 (1971) (emphasis added). At Massachusetts’s ratifying convention, Samuel Adams of- fered an amendment that the “Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Id. at 675, 681 (emphasis added). And the town of Williamsburg, Massachu- setts, supported adding a right to bear arms to the state constitu- tion because “we esteem it an essential priviledge to keep Arms in Our houses for Our Own Defence and while we Continue honest USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 26 of 31

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and Lawfull Subjects of Government we Ought Never to be de- prived of them.” THE POPULAR SOURCES OF POLITICAL AUTHORITY: DOCUMENTS ON THE MASSACHUSETTS CONSTITUTION OF 1780, at 624 (Oscar Handlin & Mary Handlin eds., 1966) (emphasis added). Because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right,” District of Columbia v. Heller, 554 U.S. 570, 592 (2008), these sources inform the meaning of the Second Amendment as eventually ratified to at least some degree despite their different language. Some jurists have suggested that these proposals do not “support[] a legislative power to categorically disarm felons be- cause of their status as felons” in part because “none of the relevant limiting language made its way into the Second Amendment.” E.g., Kanter, 919 F.3d at 454–58 (Barrett, J., dissenting); see also Rahimi, 144 S. Ct. at 1935–36 & n.3 (Thomas, J., dissenting) (contending that “[t]hese proposals carry little interpretative weight”). But some scholars of the Second Amendment have concluded that sup- porters of a constitutional right to bear arms “did not object to the lack of an explicit exclusion of criminals from the individual right to keep and bear arms” because that limitation “was understood.” STEPHEN P. HALBROOK, THE FOUNDERS’ SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS 273 (2008); see also Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983) (concluding that “the Founders” did not “consider[] felons within the common law right to arms [n]or intend[] to confer any such right upon them”). Ad- mittedly, this evidence would be insufficient to justify the felon-in- USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 27 of 31

14 WILLIAM PRYOR, C.J., Concurring 22-10829

possession ban on its own. Yet because the Supreme Court has re- jected “the proposition, unsupported by any evidence, that differ- ent people of the [F]ounding period had vastly different concep- tions of the right to keep and bear arms,” Heller, 554 U.S. at 604–05, the existence of multiple sources suggesting that the right to bear arms might depend on one’s law-abiding status supports the con- clusion that section 922(g)(1) fits within “the Nation’s historical tra- dition of firearm regulation,” Bruen, 142 S. Ct. at 2130. In the light of all these considerations, I would likely uphold the felon-in-possession ban, as applied to Dubois, under Bruen and Rahimi, even if I were not bound by United States v. Rozier. These considerations also explain why the Supreme Court in District of Columbia v. Heller cautioned that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” 554 U.S. at 626. And they explain why several justices have repeated that caution since Heller. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plural- ity opinion) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibi- tions on the possession of firearms by felons and the mentally ill’ . . . . We repeat those assurances here.” (quoting Heller, 554 U.S. at 626)); Bruen, 142 S. Ct. at 2157 (Alito, J., concurring) (stating that Bruen did not “disturb[] anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns”); id. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.) (repeating the reassurances about felon-in-posses- sion laws made in Heller and McDonald); id. at 2189 (Breyer, J., USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 28 of 31

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dissenting, joined by Sotomayor and Kagan, JJ.) (explaining that Bruen “cast no doubt on . . . Heller’s holding” that laws restricting firearm possession by felons are presumptively lawful); Rahimi, 144 S. Ct. at 1902 (reiterating Heller’s statement that “many such prohi- bitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful’” (quoting Heller, 554 U.S. at 626, 627 n.26)); id. at 1923 (Kavanaugh, J., concurring) (reaffirming that Heller recognized felon-in-possession laws among “a few cate- gories of traditional exceptions to the right” and McDonald “reiter- ated the presumed constitutionality” of those laws). USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 29 of 31

22-10829 ABUDU, J., Concurring 1

ABUDU, Circuit Judge, joined by ROSENBAUM, Circuit Judge, con- curring: I concur in the majority opinion, which affirms Andre Du- bois’ conviction and sentence for being a “felon in possession” of a firearm under 18 U.S.C. § 922(g)(1). I write separately to simply underscore the perils of relying on antiquated, legally questionable, and often-rejected notions of fairness and justice when determin- ing whether the modern-day application of laws is constitutionally permissible. 1 To quote a colleague, “I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full

1 I acknowledge, as Chief Judge Pryor does in his concurrence, that the Four-

teenth Amendment safeguards against obviously racist, sexist, or otherwise discriminatory laws. However, the practice of relying solely on laws enacted during a time when women and people of color were denied a seat at the leg- islative table is, in and of itself, problematic. See Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 HOUS. L. REV. 901, 906 (2023) (“The tradition-entrenching methods the Court employed to decide Bruen and Dobbs tie the Constitution’s meaning to lawmaking of the past and so elevate the significance of laws adopted at a time when women and people of color were judged unfit to par- ticipate and treated accordingly by constitutional law, common law, and pos- itive law.”); accord Littlejohn v. Sch. Bd. of Leon Cnty., 132 F.4th 1232, 1266 (11th Cir. 2025) (Rosenbaum, J., concurring). Furthermore, some archaic laws were enacted based on discriminatory beliefs that may not be patently evident. See Cary Franklin, History and Tradition’s Equality Problem, 133 YALE L. J. F. 946, 954 (2024) (“Many of the historical traditions proponents of ‘history and tradi- tion’ wanted to treat as the sole determinant of the Second Amendment’s meaning ‘bore the ugly taint of racism,’” which “complicate[s] the application of the history-and-tradition approach in the Second Amendment context.” (quotation and citation omitted)). USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 30 of 31

2 ABUDU, J., Concurring 22-10829

consideration to the real and present stakes of the problems facing our society today.” Nat’l Rif le Ass’n v. Bondi, 133 F.4th 1108, 1160 (11th Cir. 2025) (en banc) (Wilson, J., concurring). I will not redo an analysis of the obvious technical chal- lenges, including missing gaps, inherent in requiring jurists to iden- tify, research, and then analyze our nation’s history, as Justice Breyer thoroughly laid out these pitfalls in his dissent in Bruen. N.Y. State Rif le & Pistol Ass’n v. Bruen, 597 U.S. 1, 111-30 (2022) (Breyer, J., dissenting).2 Whether we call it “means-end scrutiny” or “strict scrutiny,” the historically-applied tailoring test for determining whether a law that infringes upon a fundamental right advances a compelling government interest continues to be more instructive, practical, and consistent. This is so because instead of simply scav- enging through historical documents, courts first identify the fun- damental right and then reasonably assess whether the law nar- rowly addresses matters of current-day significance (i.e., “compel- ling government interests”), an inquiry judges are better equipped to evaluate. See, e.g., Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 799 (2011) (identifying a California law that prohibited the sale of

2 See also Bruen, 597 U.S. at 111 (Breyer, J., dissenting) (“Lower courts—espe-

cially district courts—typically have fewer research resources, less assistance from amici historians, and higher caseloads than we do. They are therefore ill equipped to conduct the type of searching historical surveys that the Court’s approach requires. Tellingly, even the Courts of Appeals that have addressed the question presented here . . . ‘have, in large part, avoided extensive histori- cal analysis.’ In contrast, lawyers and courts are well equipped to administer means-end scrutiny, which is regularly applied in a variety of constitutional contexts[.]”). USCA11 Case: 22-10829 Document: 83-1 Date Filed: 06/02/2025 Page: 31 of 31

22-10829 ABUDU, J., Concurring 3

violent video games to minors as implicating the fundamental right to free speech, but evaluating the state’s present-day compelling in- terest in enacting the law before determining its constitutionality). Because there are several compelling government interests nar- rowly advanced through Section 922(g)(1)—which restricts access to firearms from those who already have proven themselves to be a physical danger to society—the government has also met its bur- den for purposes of defending the constitutionality of Section 922(g)(1) under “strict scrutiny” or “means-end scrutiny.” For this additional reason, I concur.