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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES GOULD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:22−cr−00095−1)
Argued: December 12, 2024 Decided: July 29, 2025
Before DIAZ, Chief Judge, and HEYTENS and BENJAMIN, Circuit Judges.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Heytens and Judge Benjamin joined.
ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Gabriel Caleb Price, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 24-4192 Doc: 41 Filed: 07/29/2025 Pg: 2 of 24
DIAZ, Chief Judge:
James Gould pleaded guilty to violating 18 U.S.C. § 922(g)(4) by possessing a
firearm after having previously been involuntarily committed to a mental institution. He
appeals, claiming that the Second Amendment renders the statute facially unconstitutional.
We disagree and affirm Gould’s conviction.
I.
A.
Gould was involuntarily committed to mental health facilities four times between
May 2016 and July 2019. In February 2022, police found Gould in his West Virginia home
with a twelve-gauge shotgun.
A grand jury indicted him on one count of violating 18 U.S.C. § 922(g)(4). That
statute makes it unlawful for anyone “who has been adjudicated as a mental defective or
who has been committed to a mental institution” to possess a firearm. 1
Shortly after Gould’s indictment, the Supreme Court decided New York State Rifle
& Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Bruen changed the framework by which we
analyze Second Amendment challenges. See Md. Shall Issue, Inc. v. Moore, 116 F.4th
211, 218–19 (4th Cir. 2024) (en banc), cert. denied, 145 S. Ct. 1049 (2025).
1 Gould has never been “adjudicated as a mental defective.” His facial challenge is to the provision barring anyone who “has been committed to a mental institution” from possessing a firearm.
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Before Bruen, we used a two-step test for Second Amendment challenges. We first
looked to “whether the challenged law impose[d] a burden on conduct falling within . . .
the Second Amendment’s guarantee,” and, if it did, we applied means-end scrutiny. See,
e.g., United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (citation omitted). Bruen
replaced that test with an inquiry into the nation’s history of firearm regulation, placing the
onus on the government to demonstrate that the challenged regulation is “consistent with
the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24.
Gould moved to dismiss his indictment. He argued that § 922(g)(4) was
unconstitutional because there was no historical tradition at the founding of gun restrictions
like those imposed by the statute. The district court rejected Gould’s challenge, concluding
that “because there is a historical basis for disarming individuals that have been determined
to be dangerous to themselves and/or the public at large, § 922(g)(4) is constitutional on
its face.” United States v. Gould, 672 F. Supp. 3d 167, 184 (S.D. W. Va. 2023).
Gould then changed his plea to guilty. 2 The district court sentenced him to time
served and three years of supervised release.
This appeal followed.
2 A guilty plea doesn’t prevent a defendant from claiming on direct appeal that the statute of his conviction is unconstitutional. Class v. United States, 583 U.S. 174, 178 (2018).
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B.
We begin with a brief historical primer on § 922(g)(4).
1.
The statute has its origins in the Gun Control Act of 1968. Its original iteration
criminalized shipping or transporting firearms or ammunition in interstate commerce by
those who had been adjudicated mentally incompetent or committed to a mental institution.
Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1220 (1968). The Firearm Owners’ Protection
Act of 1986 expanded § 922(g) crimes to include, as relevant here, possessing a firearm.
Pub. L. No. 99-308, § 102(6)(D), 100 Stat. 449, 452 (1986).
Today, § 922(g)(4) prevents a person who has been either “adjudicated as a mental
defective” or “committed to a mental institution” from possessing a firearm or ammunition.
The Bureau of Alcohol, Tobacco, Firearms and Explosives has interpreted the phrase
“committed to a mental institution” to apply only to those who have been committed
involuntarily. The Bureau defines the phrase as:
A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
27 C.F.R. § 478.11. In other words, the phrase “committed to a mental institution” in
§ 922(g)(4) means to be involuntarily placed there by a lawful authority. 3
3 Neither party challenges the Bureau’s authority to promulgate this clarifying definition.
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By its plain terms, § 922(g)(4) operates as a lifetime ban on possessing a firearm.
But that’s not the end of the story.
2.
Previously, one could petition the Attorney General for relief from the ban by
showing that 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.” 18 U.S.C.
§ 925(c). But that “provision has been rendered inoperative” because Congress, since
1992, “has repeatedly barred the Attorney General from using appropriated funds to
investigate or act upon [relief] applications.” Logan v. United States, 552 U.S. 23, 28 n.1
(2007) (quotation omitted).
Instead, Congress has permitted states that meet certain requirements to grant relief
from the statute’s firearm ban. See 34 U.S.C. § 40915. 4 A state’s process suffices if it (1)
allows a person to apply for relief (2) before a state court, board, or commission that will
determine—consistent with principles of due process—whether “the person 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” and (3) provides for de novo judicial review of a
4 Congress enacted 34 U.S.C. § 40915 in 2008. NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, § 105, 121 Stat. 2559, 2569–70 (2008).
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denial of a petition. Id. § 40915(a). Thirty-three states, 5 including West Virginia, have
established such processes. 6
II.
Although we review Gould’s constitutional challenge de novo, United States v.
Collins, 982 F.3d 236, 243 (4th Cir. 2020), Gould must still clear a high hurdle. That’s
because he brings a facial challenge, “the most difficult challenge to mount successfully.”
United States v. Salerno, 481 U.S. 739, 745 (1987).
To succeed, Gould must “establish that no set of circumstances exists under which
[§ 922(g)(4)] would be valid or that the statute lacks any plainly legitimate sweep.” United
States v. Stevens, 559 U.S. 460, 472 (2010) (cleaned up). He can’t prevail if § 922(g)(4)
“is constitutional in some of its applications.” United States v. Rahimi, 602 U.S. 680, 693
(2024).
III.
The Second Amendment states, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
5 And one territory. 6 Bureau of Alcohol, Tobacco, Firearms & Explosives, NICS Improvement Amendments Act of 2007, https://www.atf.gov/firearms/docs/guide/nicsactlist7-7- 210pdf/download [https://perma.cc/FB65-7KMG].
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infringed.” U.S. Const. amend II. The text “guarantee[s] the individual right to possess
and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570,
592 (2008). Heller held that the District of Columbia’s ban on possessing handguns in the
home violated the Second Amendment. Id. at 635. To reach that conclusion, it also held
that the Second Amendment conferred an individual right to own firearms for self-defense
in case of confrontation. Id. at 592–95.
But the right isn’t unlimited. As Heller described it, “[f]rom Blackstone through
the 19th-century cases, commentators and courts routinely explained that the right was not
a right to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Id. at 626.
As an example, the Court noted 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.” Id. These “presumptively lawful regulatory measures,” id. at 627 n.26, also include
laws barring the carrying of firearms in “sensitive places” and “laws imposing conditions
and qualifications on the commercial sale of arms,” id. at 626–27.
The government asks us to decide Gould’s case based on Heller’s dictum that laws
disarming the mentally ill are presumptively lawful. 7 And it’s true that we “routinely
afford substantial, if not controlling deference to dicta from the Supreme Court,” Manning
7 Heller’s discussion about “longstanding prohibitions on the possession of firearms by . . . the mentally ill” is nestled in a brief section that the Court caveated by noting that it was not “undertak[ing] an exhaustive historical analysis . . . of the full scope of the Second Amendment.” 554 U.S. at 626. We’ve acknowledged that this portion of Heller is dictum, albeit important dictum. Md. Shall Issue, 116 F.4th at 221–22.
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v. Caldwell, 930 F.3d 264, 281 (4th Cir. 2019) (en banc), especially “when the supposed
dicta is recent and not enfeebled by later statements,” Hengle v. Treppa, 19 F.4th 324, 347
(4th Cir. 2021) (cleaned up).
Far from enfeebling its dictum, for the last fifteen years the Supreme Court has
reiterated the presumptive validity of limitations on the right to keep and bear arms for the
mentally ill. McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion)
(“We repeat [Heller’s] assurances [about prohibitions on the possession of firearms by the
mentally ill] here.”); Rahimi, 602 U.S. at 699 (“Heller never established a categorical rule
that the Constitution prohibits regulations that forbid firearm possession in the home. In
fact, [Heller] stated that many such prohibitions, like those on the possession of firearms
by felons and the mentally ill, are presumptively lawful.” (cleaned up)).
We recently explained that the Heller’s dictum is consistent with our pre-Bruen
precedent, which held that 18 U.S.C. § 922(g)(1) (prohibiting felons from possessing a
firearm) was constitutional. United States v. Hunt, 123 F.4th 697, 702–04 (4th Cir. 2024)
cert. denied, No. 24-6818, 2025 WL 1549804 (U.S. June 2, 2025). And when we decided
whether the Second Amendment protects the right to own a firearm with an obliterated
serial number, we stated that “[n]othing in Bruen abrogated Heller’s extensive discussion
of the contours of the scope of the right enshrined in the Second Amendment.” United
States v. Price, 111 F.4th 392, 400 (4th Cir. 2024) (en banc) cert. denied, 145 S. Ct. 1891
(2025).
Even so, the issue is not so straightforward. For one thing, § 922(g)(4) doesn’t refer
to “the mentally ill,” a phrase that logically describes those currently experiencing mental
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illness. Instead, the statute covers anyone “who has been [involuntarily] committed to a
mental institution.”
The two aren’t synonymous. A person who was involuntarily committed for a
mental illness and has recovered would still be swept up within the ambit of § 922(g)(4),
but wouldn’t be currently mentally ill. 8 Like the Ninth Circuit, “[w]e emphatically do not
subscribe to the notion that ‘once mentally ill, always so.’” Mai v. United States, 952 F.3d
1106, 1121 (9th Cir. 2020).
An additional complication is what to make of the term “mentally ill.” Is it meant
to capture all who’ve ever been prescribed an antidepressant? What about those who, at
some point in their lives, have been diagnosed with depression, anxiety, schizophrenia,
bipolar disorder, or any one of scores of discrete conditions? See Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013). And how severe must the mental illness have
been to be denied the protections of the Second Amendment? Difficulties abound. 9
8 The Sixth Circuit, in an as-applied, pre-Bruen challenge, concluded that § 922(g)(4) at least could be unconstitutional when applied to an individual who suffered a bout of depression thirty years prior with no problems afterward. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 688, 699 (6th Cir. 2016) (en banc) (plurality opinion); id. at 710 (Sutton, J., concurring in most of the judgment). 9 This isn’t the first time Heller has defied easy application. The Heller Court described the right protected by the Second Amendment as extending to “law-abiding, responsible citizens.” Heller, 554 U.S. at 635. In United States v. Rahimi, 602 U.S. 680 (2024), the government argued that a person could be disarmed because he is not “responsible.” Id. at 701. But the Court rejected that argument because responsible “is a vague term” that its prior decisions “did not define.” Id. at 701–02. “Mentally ill” as used in the Court’s Second Amendment decisions is similarly vague and undefined.
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But there’s another path: we can gauge the constitutionality of § 922(g)(4) by
looking at the nation’s history and tradition of restricting firearms access for persons
deemed to be dangerous to themselves or others, which includes at least some deemed to
be dangerous because of mental illness.
We turn now to that analysis, with our historian caps on, as dictated by Bruen.
Recall that Bruen’s analysis proceeds in two steps. First, “[w]hen the Second
Amendment’s plain text covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Bruen, 597 U.S. at 24. If it does, the second step requires “[t]he
government [to] justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.” Id. (emphasis added).
While we haven’t shied away from deciding challenges at Bruen’s first step, e.g.,
Price, 111 F.4th at 398; Bianchi v. Brown, 111 F.4th 438, 452–53 (4th Cir. 2024) (en banc),
cert. denied, 145 S. Ct. 1534 (2025), we won’t do so here. Section 922(g)(4) bars an
individual who is otherwise law-abiding from possessing a weapon in common use for a
common purpose. The conduct the statute prohibits is therefore covered by the Second
Amendment’s plain text and thus is presumptively protected.
On to Bruen’s second step. Bruen jettisoned an interest-balancing test in favor of
one focused on the historical understanding of the scope and limitations of the right to keep
and bear arms. But it also recognized that, in conducting that analysis, courts may need to
reason by analogy to modern laws that deal with modern problems that the Founders didn’t
anticipate. Bruen, 597 U.S. at 28–29. And to prevail, the government need not show a
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historical “dead ringer.” Id. at 30. It need show only a “representative historical analogue,
not a historical twin.” Id.
The Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024) is helpful
here. Rahimi challenged 18 U.S.C § 922(g)(8), which prohibits possession of a firearm by
an individual who is subject to a court order that “includes a finding that such person
represents a credible threat to the physical safety of [an] intimate partner or child.” 18
U.S.C § 922(g)(8)(C)(i). In upholding the statute’s constitutionality, the Court explained
that “[t]he [modern] law must comport with the principles underlying the Second
Amendment” even if it lacks a “historical twin.” Rahimi, 602 U.S. at 692 (emphasis added)
(cleaned up).
Rahimi never identified a historical law specifically disarming those who posed a
threat to an intimate partner or child. Yet it still found the challenged statute constitutional
based on the history of (1) surety laws, which required individuals found by a magistrate
to pose a threat of future misbehavior, including spousal abuse, to post a bond or be jailed,
and (2) “going armed” laws, which disarmed and imprisoned those who used arms to terrify
the public. Id. at 694–98.
And the Court upheld the statute’s constitutionality even though it was “by no means
identical to these founding era regimes.” Id. at 698. It was enough that the statute’s
“prohibition on the possession of firearms by those found by a court to present a threat to
others fit[] neatly within the tradition the surety and going armed laws represent.” Id.
(emphasis added).
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Our task then is to examine the historical right the Second Amendment codifies and
evaluate its consistency with the bar imposed by § 922(g)(4), keeping in mind the
principles undergirding the tradition of firearm regulation. In doing so, we look to the
“how and why the regulation[] burden[s] a law-abiding citizen’s right to armed self-
defense.” Bruen, 597 U.S. at 29; accord Rahimi, 602 U.S. at 692.
The “how” here is disarmament, on pain of incarceration. As for the “why,” we
consider the societal problem § 922(g)(4) seeks to address. See Bruen, 597 U.S. at 26–27.
We agree with the district court that the answer isn’t simply “firearm violence by the
mentally ill.” Gould, 672 F. Supp. 3d at 179. The statute applies, as relevant here, to
anyone who has been “committed to a mental institution,” § 922(g)(4), which can include
commitments for “mental defectiveness,” mental illness, or “other reasons, such as for drug
use,” 27 C.F.R. § 478.11.
The statute doesn’t bar every person who has suffered from mental illness from
possessing a firearm. Rather, its reach is limited to those instances in which an independent
“court, board, commission, or other lawful authority,” id., has determined that the
individual poses a sufficient risk of danger to themselves or others that renders temporary
confinement, against the person’s will, necessary. See Gould, 672 F. Supp. 3d at 180 &
n.7 (noting that posing a danger to oneself or others is a requirement for involuntary
commitment in nearly every state and collecting statutes).
Mental illness is a reason why someone may be deemed to be a threat to themselves
or others. The underlying societal problem, however, is preventing violence by those found
to pose an increased risk of danger to the community or themselves.
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With this foundation, we turn to the relevant history. 10
C.
One scholar has noted that “[o]ne searches in vain through eighteenth-century
records to find any laws specifically excluding the mentally ill from firearms ownership.”
Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v.
Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009). But that’s largely
because the mentally ill were at the time “cared for on an ad hoc and informal basis either
by the family or community.” Gerald N. Grob, The Mad Among Us: A History of the Care
of America’s Mentally Ill 6 (1994).
In any event, the lack of historical laws specifically disarming the mentally ill isn’t
the final word. After all, laws restricting firearm ownership aren’t “trapped in amber.”
Rahimi, 602 U.S. at 691. And “assumptions” that “founding-era legislatures maximally
exercised their power to regulate . . . are flawed.” Id. at 739–40 (Barrett J., concurring).
So we consider whether the disarmament authorized by § 922(g)(4) is “relevantly
similar to laws that our tradition is understood to permit.” Id. at 692 (majority opinion)
(emphasis added) (cleaned up). And here we find that support in two related historical
10 Society’s understanding of mental illness has advanced in the centuries since the founding. The forms, causes, and treatments of various mental illnesses were largely unknown in the eighteenth century. Whether our forefathers recognized it or not, the treatment of mental illnesses calls for a nuanced approach, and those who suffered from them at the founding and beyond deserved more compassion—and less stigma—than they received. We’re nevertheless bound by Bruen and Rahimi to look at history, despite its shortcomings, to guide our analysis.
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traditions: the actions of legislatures and communities that incapacitated those suffering
from mental illness when the afflicted posed a danger to themselves or others, and the
accepted power of legislatures to disarm groups of people considered dangerous.
In the years before the founding, legislatures routinely empowered “local officials
to limit the freedom of ‘distracted persons’ who menaced other residents.” Grob, supra, at
16. The main response was incarceration, whether by one’s family members or the
community at large. “If violent or troublesome, even the propertied insane were without
compunction locked up and chained by their families in strong-rooms, cellars, and even in
flimsy outhouses.” Albert Deutsch, The Mentally Ill in America: A History of Their Care
and Treatment from Colonial Times 40 (Columbia Univ. Press 2nd ed. 1949). When a
family was unavailable and a town large enough, “[i]ncarceration in jail was the common
solution.” Id. at 41.
But where there was neither a jail nor family available, towns found other ways to
incapacitate the mentally ill. In Pennsylvania, a court ordered the construction of a small
house for confining Erik Cornelissen after his father Jan complained that Erik was “bereft
of his naturall Sences & is turned quyt madd and [Jan] being a poore man [was] not able
to maintaine him.” The Record of Upland Court from the 14th of November, 1676, to the
14th of June, 1681, in 7 Memoirs of the Historical Society of Pennsylvania 35, 102
(Edward Armstrong ed., Philadelphia, J.B. Lippincott & Co. 1860). And the town of
Braintree, Massachusetts funded the construction of a seven-by-five-foot house for a
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brother’s “distracted” sister. Records of the Town of Braintree, 1640 to 1793, at 26
(Samuel A. Bates ed., Randolph, Daniel H. Huxford 1886).
The powers granted to authorities to detain individuals were sometimes extensive.
For example, in 1676, Massachusetts resolved that “[w]hereas, [t]here are distracted
persons in some tounes, that are unruly,” “selectmen in all tounes where such persons are
are hereby impowred & injoyned to take care of all such persons, that they doe not damnify
others.” Deutsch, supra, at 43.
And detainment meant incarceration. In 1727, Connecticut passed a bill to build its
first correctional facility, which would house “persons under distraction and unfit to go at
large, whose friends do not take care for their safe confinement” alongside criminals and
beggars. Id. at 52. Rhode Island did the same. Id. at 52–53.
As urbanization progressed, legislatures became more active. The first hospital in
the colonies, opened in Philadelphia in the 1750s, was created with a plea to the
Pennsylvania Assembly that “Lunaticks . . . are a Terror to their Neighbours, who are daily
apprehensive of the Violences they may commit.” Grob, supra, at 19. And Massachusetts
mandated that “penal institutions accept ‘lunatics, and persons furiously mad’ whose
behavior threatened the welfare of others.” Id. at 43.
These efforts extended through to the founding. See Act of Feb. 9, 1788, ch. 31,
1788 N.Y. Laws 643, 645 (authorizing justices of the peace to “lock[] up in some secure
place” “persons, who by lunacy or otherwise are furiously mad . . . that they may be
dangerous”); Act of Dec. 24, 1792, ch. 55, in 1 Va. Stat. at Large 162, 162–63 (Shepherd
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1835) (authorizing justices of the peace to confine persons of “unsound mind” to a
hospital).
Particularly noteworthy is the relative ease by which people could be
institutionalized. At the hospital in Philadelphia, “[a]ll that was necessary was for a
relative, a friend—or, perhaps, an enemy—to apply to one of the managers or physicians
for an order of admission.” Deutsch, supra, at 62.
This history points to two conclusions. First, at the time of the founding, and indeed
for long before, governments routinely incapacitated those suffering from severe mental
illness. Second, the reason for such action was that the individual was considered a threat
to their community.
3.
Next, we consider the history of a legislature’s ability to disarm people thought to
be dangerous. At the outset, we note that some of the historical laws disarming categories
of people based on a determination of dangerousness would (thankfully) flunk
constitutional analysis today on other grounds. United States v. Jackson, 110 F.4th 1120,
1126–27 (8th Cir. 2024) (noting that restrictions on firearms ownership based on race and
religion would be impermissible today); United States v. Williams, 113 F.4th 637, 656 (6th
Cir. 2024) (“Classifying people as dangerous simply because of their race or religion was
wrong from the beginning and unconstitutional from 1868.”). We analyze them not to
endorse their offensive aims, but to show that, at the founding, categorical disarmament of
groups of people was permissible and consistent with the contemporary understanding of
the Second Amendment.
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We performed much of this work in United States v. Hunt, 123 F.4th 697 (4th Cir.
2024). There, we explained that legislatures historically imposed restrictions that “swept
broadly, disarming all people belonging to groups that were, in the judgment of those early
legislatures, potentially violent or dangerous.” Id. at 707.
Those pre-ratification laws typically targeted religious or racial minorities. The
seventeenth century was a chaotic one for England. In 1689—after a civil war, the reign
of the Catholic King James II, and the Glorious Revolution which enthroned the Protestant
King William III—Parliament passed “An Act for the better secureing the Government by
disarming Papists and reputed Papists.” 1 W. & M. c. 15 (1689).
That Act permitted any two justices of the peace to prohibit a Catholic from
possessing any arms or ammunition other than as allowed by the justices. Id. § 3. But it
allowed individual Catholics to retain their arms if they swore a loyalty oath. Id. § 6.
“According to this calculus, disarming what [Parliament] saw as a troublesome
group would spare England from the religious wars that had rocked the kingdom for
decades.” Williams, 113 F.4th at 651. The upshot is that (1) Parliament could disarm a
group of people based on the prospective threat they posed, not individually but as a class,
but (2) an individualized showing that a particular person was not dangerous—here, an
oath—provided relief.
Even earlier, and on this continent, colonists too disarmed groups of people.
In 1642, Puritans in Virginia asked their fellow worshippers in Massachusetts to
send them ministers. Kevin Butterfield, The Puritan Experiment in Virginia, 1607–1650,
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at 11 (June 1999) (M.A. thesis, College of William & Mary). John Winthrop, the governor
of Massachusetts, dispatched three. Id. at 15.
The governor of Virginia, under orders to “oppose any and all religious
nonconformity,” acted quickly to silence them. Id. at 22. Local authorities reacted by
taking various measures against the Puritans, including “generally disarm[ing]” them, an
extreme measure given the risks of living in mid-seventeenth century colonial America.
Charles Campbell, History of the Colony and Ancient Dominion of Virginia 211–12
(Philadelphia, J.B. Lippincott & Co. 1860). Once more, a category of people was disarmed
based on their perceived status as a potential threat—here, a group of religious
nonconformists.
Fast forward a century to the French and Indian War, part of the Seven Years’ War
that pitted Protestant England against Catholic France. Maryland, Virginia, and
Pennsylvania each passed legislation disarming Catholics on a class-wide basis. Joseph
G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from
Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). Individuals could petition for
restoration of their right to bear arms, see, e.g., An Act for Disarming Papists, and Reputed
Papists, Refusing to Take the Oaths to the Government, ch. 4 (1756), in 7 Va. Stat. at Large
35, 38 (Hening 1820) (allowing Catholics to “be discharged of and from all disabilities and
forfeitures” provided they swear an oath), but this relief was only prospective, and
individuals had to demonstrate their loyalty post hoc.
The ratification debates reflected similar views on the reach of the Second
Amendment. Heller described the Dissent of the Minority of the Convention of
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Pennsylvania of 1787 as “highly influential” to understanding the scope and limitations of
the right to bear arms. Heller, 554 U.S. at 604. That dissent proposed including the right
to bear arms in the Constitution but excluded persons “for crimes committed, or real
danger of public injury from individuals.” The Address and Reasons of Dissent of the
Minority of the Convention, of the State of Pennsylvania, to Their Constituents 1
(Philadelphia, E. Oswald 1787) (emphasis added).
Laws restricting racial groups’ access to arms due to a belief that its members posed
a danger were also common both before and after ratification. State legislatures banned
enslaved people and freedmen from possessing firearms. Range v. Att’y Gen., 124 F.4th
218, 264–65 (3d Cir. 2024) (en banc) (Krause, J., concurring in the judgment); see also
Williams, 113 F.4th at 656. Those laws stemmed from fears of armed freedman facilitating
slave revolts. Joseph G.S. Greenlee, Disarming the Dangerous: The American Tradition
of Firearm Prohibitions, 16 Drexel L. Rev. 1, 27 (2024). But some post-ratification laws
permitted freedmen to own firearms if they could show that they were not dangerous.
Williams, 113 F.4th at 656; see Range, 124 F.4th at 265–66 (Krause, J., concurring in the
judgment).
In sum, history shows that legislatures had the authority, consistent with the
understanding of the individual right to keep and bear arms, to disarm categories of people
based on a belief that the class posed a threat of dangerousness. Hunt, 123 F.4th at 707.
And when combined with the historical treatment of those who suffered from mental
illness, we perceive an unambiguous history and tradition of disarming and incarcerating
those whose illness made them a danger to themselves or others.
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D.
With history behind us, we return to the question presented — whether § 922(g)(4)
is “‘relevantly similar’ to laws our tradition is understood to permit.” Rahimi, 602 U.S. at
692 (quoting Bruen, 597 U.S. at 29). We keep in mind that Gould’s challenge to
§ 922(g)(4) is a facial one. And we take to heart “that facial challenges are ‘disfavored’
because they ‘often rest on speculation,’ ‘short circuit the democratic process,’ and ‘run
contrary to the fundamental principle of judicial restraint.’” Bianchi, 111 F.4th at 452
(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450–51
(2008)).
So we focus on “situations in which [§ 922(g)(4) is] most likely to be
constitutional.” Rahimi, 602 U.S. at 701. At least in West Virginia, we find such
situations. 11
Rahimi again does much of the work here. The Court identified three characteristics
there that led it to conclude that § 922(g)(8) is relevantly similar to its historical analogues,
the surety and going armed laws. First, it explained that the statute “applies only once a
court has found that the defendant represents a credible threat to the physical safety of
another.” Rahimi, 602 U.S. at 699 (cleaned up). Second, § 922(g)(8) is time-limited,
banning firearm possession only for so long as an individual is subject to a restraining
order. Id. And third, the penalty for violating one of § 922(g)(8)’s historical analogues,
We focus on West Virginia because that’s where Gould lives. In so doing, we 11
don’t mean to convert Gould’s facial challenge into an as-applied one.
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the going armed laws, is imprisonment, which is a greater burden than the lesser restriction
of disarmament. Id. Section 922(g)(4) and the historical tradition that preceded it largely
share the same features.
Start with Rahimi’s discussion of the importance of a court finding of
dangerousness. In the Mountain State, a person may be involuntarily committed because
of a mental illness only upon a judicial finding (by clear and convincing evidence) that: (1)
the individual is mentally ill; (2) because of the mental illness, the individual likely poses
a risk to himself or others; and (3) there isn’t a less restrictive alternative than commitment
appropriate and available. W. Va. Code Ann. § 27-5-4(k). At the hearing, the individual
has a right to counsel and to present witnesses. Id. § 27-5-4(h).
In short, the individual to be committed is afforded substantial protection against
arbitrary commitment (and thus, disarmament). That’s consistent with the history of
requiring justices of the peace to find that someone was so mentally ill that they posed a
danger sufficient to warrant commitment. So as in Rahimi, the fact that § 922(g)(4)’s ban
applies only after a judicial finding that an individual is a threat to themselves or others
counsels in favor of a finding of constitutionality. And those procedural protections, as
discussed above, are similar to (and sometimes greater than) those afforded to the
dangerously mentally ill at the founding.
Turning to Rahimi’s temporal considerations, a West Virginian who “is prohibited
from possessing a firearm pursuant to . . . provisions of federal law by virtue solely of . . .
having a prior involuntary commitment to a mental institution” can petition a state circuit
court to have that right restored. W. Va. Code Ann. § 61-7A-5(a). If the petitioner can
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show by clear and convincing evidence that he or she can responsibly possess the firearm
and doesn’t pose a danger to public safety, and that restoration of the right isn’t contrary to
the public interest, the court may restore the right. Id. § 61-7A-5(e). And a petitioner
denied relief may appeal the decision. Id.
Put another way, disarmament under § 922(g)(4) isn’t categorically permanent in
West Virginia. True, the time limit isn’t self-executing and the person who has been
involuntarily committed must prove their competency. But that hardly makes § 922(g)(4)
unique—among modern provisions or its historic analogues.
For example, a sister provision, § 922(g)(3), bans those who are “addicted to any
controlled substance” from possessing guns. We’ve explained that § 922(g)(3)’s ban is
permissible because it covers “only the time period during which [Congress] deemed such
persons to be dangerous.” United States v. Carter, 669 F.3d 411, 419 (4th Cir. 2012); see
also United States v. Veasley, 98 F.4th 906, 915 (8th Cir.) (“Stopping the use of drugs, after
all, restores gun rights under § 922(g)(3).”), cert. denied, 145 S. Ct. 304 (2024).
Just like stopping the use of drugs serves as a temporal stopping point (and puts the
onus on the drug user to relieve the burden), § 922(g)(4) permits an individual to regain
the right to carry arms if they remove the condition that makes them dangerous to
themselves or others. And, as described above, early American laws often put the burden
on those they disarmed to have their right restored—whether by swearing an oath or
otherwise demonstrating that they were not dangerous.
Admittedly, this case differs from Rahimi in one aspect. One consideration in
Rahimi was that if a state could constitutionally imprison an individual for certain conduct,
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then it could also disarm the individual for that conduct. Rahimi, 602 U.S. at 699. Given
that the going armed laws provided for imprisonment, it followed that disarmament, a
lesser punishment, could also be imposed consistent with history and tradition. Id.
Though we find little evidence in the historical record of keeping firearms out of the
hands of people released from mental institutions in the founding era, that dearth stems
from a lack of mental institutions generally during that period. But what history does reveal
is that people who were mentally ill were considered dangerous when their illness posed a
threat to themselves or others, and so the state could incapacitate and disarm them.
When a person today is released from a mental institution, the setting changes. But
the historical justification for their disarmament, that they pose a danger, persists until they
can demonstrate otherwise to a court.
Rahimi doesn’t hold that a law restricting firearm use is constitutional only if the
historical tradition that justified disarming someone required continuous imprisonment.
The laws disarming religious and racial groups during the eighteenth century didn’t
involve, for example, locking up all Catholics. Instead, we think—consistent with the
reasoning in Rahimi—that a person (like Gould) found to be dangerous because of mental
illness can be disarmed until he can show that his affliction no longer renders him
dangerous.
Gould makes one more argument. He claims that § 922(g)(4) is facially
unconstitutional because the fact that an institution has released someone necessarily
means that the person is no longer a danger to themselves or others. And if that’s true,
their right to own a firearm should be restored automatically upon release.
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The problem for Gould is that West Virginia doesn’t require a finding that an
individual is no longer a threat for them to be released from involuntary commitment.
Rather, release may be granted when a medical official determines that “the conditions
justifying involuntary hospitalization no longer exist or that the individual can no longer
benefit from hospitalization.” W. Va. Code Ann. § 27-7-1.
Sometimes the release occurs with conditions (such as a requirement to continue
outpatient treatment) and can be revoked if the individual doesn’t comply. Id. § 27-7-2.
Or the individual may be released even when they are “unimproved” if a responsible person
is willing and able to take care of them. Id. § 27-7-3.
It’s not a stretch to find constitutional applications of § 922(g)(4) here. And it’s
reasonable to conclude that release from a mental institution (at least in West Virginia)
isn’t the same as a judicial determination that a person is no longer dangerous.
* * *
We emphasize the narrowness of our holding. Disarmament under § 922(g)(4) is
facially constitutional because situations exist where it may be applied consistent with the
Second Amendment. We express no opinion on as-applied challenges to the statute.
AFFIRMED