Wyoming Law Review
Volume 20

Number 2

Article 7

2020

The Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms
Joseph G.S. Greenlee

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Recommended Citation
Greenlee, Joseph G.S. (2020) "The Historical Justification for Prohibiting Dangerous Persons from
Possessing Arms," Wyoming Law Review: Vol. 20 : No. 2 , Article 7.
Available at: https://scholarship.law.uwyo.edu/wlr/vol20/iss2/7

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Greenlee: The Historical Justification

Wyoming Law Review
VOLUME 20

2020

NUMBER 2

THE HISTORICAL JUSTIFICATION FOR
PROHIBITING DANGEROUS PERSONS FROM
POSSESSING ARMS
Joseph G.S. Greenlee*
I.
II.

Introduction.......................................................................................249
The Supreme Court.............................................................................251
A. Presumptively Lawful Regulations...................................................251
B. Rebuttal of Presumed Lawfulness.....................................................254
C. Historical Justification....................................................................255
III. History.................................................................................................257
A. English Tradition of Arms Prohibitions............................................257
B. Colonial America Arms Prohibitions...............................................261
C. Ratifying Conventions and the Founding Era...................................265
D. Restoration of Arms Rights in the Founding Era...............................268
E. Nineteenth-Century Arms Prohibitions............................................269
F.
Twentieth-Century Arms Prohibitions.............................................272
1. Non-Citizens.........................................................................272
2. Violent Criminals..................................................................273
IV. “Unvirtuous” Citizens.........................................................................275
A. Lack of Historical Justification........................................................275
B. Unvirtuous Citizens Retained Their Arms.......................................283
V. Conclusion..........................................................................................285

I. Introduction
In District of Columbia v. Heller, the Supreme Court deemed certain firearm
regulations “presumptively lawful”—including “longstanding prohibitions on the

* Director of Research, Firearms Policy Coalition; Policy Advisor for Legal Affairs, Heartland
Institute; Fellow in Constitutional Studies, Millennial Policy Center; Emerging Leaders Advisory
Council, Steamboat Institute; J.D. 2014, University of Denver Sturm College of Law, http://
josephgreenlee.org.

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possession of firearms by felons . . . .”1 The Heller Court did not elaborate on why
such laws were presumptively lawful, instead promising to provide a “historical
justification” for such laws when a better opportunity arises.2 Two years later, the
Court again referenced these presumptively lawful regulations in McDonald v.
City of Chicago, but did not use the opportunity to elaborate on the historical
basis for the regulations.3
Thus far—over a decade since the Heller decision—the Court has not yet
provided that historical justification. In the meantime, lower courts have been
inundated with challenges to these presumptively lawful measures. The federal
law prohibiting felons from possessing firearms has been the most challenged
law under the Second Amendment post-Heller.4 This Article surveys English and
American history to discover what historical justification the Supreme Court was
referring to.
Part II examines what the Supreme Court has said about firearm prohibitions
on felons. Section A explains why felon bans are presumptively lawful, Section B
explains why the presumption of lawfulness is rebuttable, and Section C explains
why any prohibition on felons must be rooted in history and tradition.
Part III explores the history of laws prohibiting categories of people from
possessing arms. Section A explores disarmament efforts throughout England’s
history. England had a long tradition of disarming dangerous persons, especially
those disloyal to the government. Section B surveys laws from colonial America.
Consistent with English tradition, colonial disarmament efforts focused on
those perceived as posing a dangerous threat, including Loyalists to the British
Crown, slaves, freedmen, and Native Americans. Section C summarizes the
proposals from the ratifying conventions of Massachusetts, New Hampshire,
and Pennsylvania. All three proposals are most reasonably read as allowing only
dangerous persons to be disarmed. Section D provides examples of when prohibited
persons could have their arms rights restored in the founding era. Unlike the
lifetime bans that typically apply today, prohibited persons in the founding era
could often regain their rights once they were no longer perceived as dangerous.
Section E focuses on the nineteenth century, in which slaves, freedmen, and
tramps were regulated most severely. Section F surveys the increasingly prevalent
prohibitions in the twentieth century. The majority of these applied to noncitizens and are examined in Section F.1. The others applied to violent criminals
and are examined in Section F.2.

1

District of Columbia v. Heller, 554 U.S. 570, 626–27, n.26 (2008).

Id. at 635 (“[T]here will be time enough to expound upon the historical justifications for
the exceptions we have mentioned if and when those exceptions come before us.”).
2

3

McDonald v. City of Chicago, 561 U.S. 742, 786 (2010).

4

See infra note 16 and accompanying text.

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Part IV addresses the theory embraced by some scholars and courts that the
Second Amendment was understood in the founding era to protect only “virtuous”
citizens. Section A examines how the “unvirtuous” citizen theory developed despite
lacking historical foundation. Section B explores historical laws that expressly
permitted unvirtuous citizens to retain their arms rights. Many founders believed
a virtuous citizenry was necessary for self-government, but no law ever limited
the right to keep and bear arms to virtuous citizens, and no founding-era source
indicated that the Second Amendment was intended to be so limited.
In conclusion, this Article finds that there is no tradition of banning peace­
able citizens from possessing firearms. The historical justification the Supreme
Court relied on to declare felon bans “presumptively lawful” must be the tradition
of disarming violent and otherwise dangerous—not merely unvirtuous—persons.
Thus, prohibitions on violent felons may be presumptively lawful under Heller,
but prohibitions on nonviolent felons contradict the original understanding of
the Second Amendment.

II. The Supreme Court
A. Presumptively Lawful Regulations
In 2008, the Supreme Court provided its “first in-depth examination of the
Second Amendment” in District of Columbia v. Heller.5 Heller involved three
District of Columbia ordinances: a prohibition on handguns; a prohibition on
assembled, functional firearms inside one’s home; and a prohibition on carrying
firearms without a license, which applied inside the home.6 The Heller Court
analyzed the Second Amendment’s text, informed by history and tradition, and
held that the Second Amendment protects “the individual right to possess and
carry weapons in case of confrontation.”7 Thus, the Court held “that the District’s
ban on handgun possession in the home violates the Second Amendment, as does
its prohibition against rendering any lawful firearm in the home operable for the
purpose of immediate self-defense.”8 Additionally, “[a]ssuming that Heller is not
disqualified from the exercise of Second Amendment rights, the District must
permit him to register his handgun and must issue him a license to carry it in
the home.”9
As the Court’s “first in-depth examination” of the right, Heller did not
“clarify the entire field.”10 But the Court explained which firearm regulations
5

Heller, 554 U.S. at 635.

6

Id. at 574–75.

7

Id. at 592.

8

Id. at 635.

9

Id.

10

Id.

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may remain permissible. For example, the Court made a point to clarify that
some historical laws, including longstanding firearm prohibitions on felons, are
presumptively lawful:
Although we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in
our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial
sale of arms.11
In an accompanying footnote, the Court added that “[w]e identify these
presumptively lawful regulatory measures only as examples; our list does not
purport to be exhaustive.”12 The Court then promised “to expound upon the
historical justifications for the exceptions we have mentioned if and when those
exceptions come before us.”13
Heller, therefore, provides that while “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” is “elevate[d] above all
[governmental] interests” in restricting the right, felons can be deprived of the
right if that deprivation is consistent with history and tradition.14
In 2010, the Supreme Court struck two Illinois cities’ handgun bans in
McDonald v. City of Chicago. In holding that “the Second Amendment right is
fully applicable to the States” through the Fourteenth Amendment, the Court
noted that Heller “did not cast doubt on such longstanding regulatory measures as
‘prohibitions on the possession of firearms by felons . . . .’”15 The McDonald Court
did not use the opportunity to provide the historical justification promised in
Heller, but it did reiterate that Heller was referring to “longstanding” prohibitions
on felons.
Perhaps because of the Court’s terse treatment of the “presumptively lawful”
regulatory measures in Heller and McDonald, few lines from either case have
been more controversial or consequential.16 But the Court was clear in stating that
11

Id. at 626 –27.

12

Id. at 627 n.26.

13

Id. at 635.

14

Id.

McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (quoting Heller, 554 U.S. at
626–27).
15

See David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits’ Second Amendment
Doctrines, 61 St. Louis L.J. 193, 214–28 (2017) (describing various disagreements among the
16

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its listed restrictions had “historical justifications,” and that the regulations are
only “presumptively” constitutional.17

federal circuit courts regarding the “presumptively lawful” measures, including what constitutes
“longstanding,” how the enumerated laws should be analyzed, what unlisted laws are “presumptively
lawful,” whether the presumption can be rebutted, and whether the language is dicta, among other
issues). Courts dispute whether the “presumptively lawful” language is dicta or a limitation on
Heller’s holding. But the distinction is trivial, because lower courts generally consider themselves
bound by recent Supreme Court dicta. See id. at 199–200 n.16 (providing examples of each federal
circuit court recognizing the authoritativeness of Supreme Court dicta).
Since Heller, the federal statute prohibiting felons from possessing firearms—18 U.S.C.
§ 922(g)(1) (2018)—has been the most challenged law under the Second Amendment. See, e.g.,
Holloway v. Attorney Gen. United States, 948 F.3d 164, 168 (3d Cir. 2020); United States v. Torres,
789 F. App’x 655, 656 (Mem.) (9th Cir. 2020); Medina v. Whitaker, 913 F.3d 152, 154 (D.C. Cir.
2019); United States v. Adams, 914 F.3d 602, 604 (8th Cir. 2019); Kanter v. Barr, 919 F.3d 437,
440 (7th Cir. 2019); Hatfield v. Barr, 925 F.3d 950, 951 (7th Cir. 2019); United States v. Griffith,
928 F.3d 855, 864 (10th Cir. 2019); King v. Attorney Gen. United States, 783 F. App’x 111, 112
(3d Cir. 2019); Baer v. Lynch, 636 F. App’x 695, 696 (7th Cir. 2016); United States v. Phillips, 827
F.3d 1171, 1172 (9th Cir. 2016); Binderup v. Attorney Gen. United States of Am., 836 F.3d 336,
340 (3d Cir. 2016) (en banc); United States v. Shields, 789 F.3d 733, 738 (7th Cir. 2015); Van
Der Hule v. Holder, 759 F.3d 1043, 1044 (9th Cir. 2014); United States v. Woolsey, 759 F.3d 905,
906 (8th Cir. 2014); Bell v. United States, 574 F. App’x 59, 60 (3d Cir. 2014) (per curiam); United
States v. Cooney, 571 F. App’x 505, 506 (8th Cir. 2014) (per curiam); Schrader v. Holder, 704 F.3d
980, 982 (D.C. Cir. 2013); United States v. Baird, 514 F. App’x 898, 982 (11th Cir. 2013); United
States v. Bogle, 717 F.3d 281, 281 (2d Cir. 2013); United States v. Hauck, 532 F. App’x 247, 248
(3d Cir. 2013); United States v. Lapier, 535 F. App’x 622, 622 (Mem.) (9th Cir. 2013); United
States v. Schrag, 542 F. App’x 583, 584 (9th Cir. 2013) (Mem.); United States v. Huet, 665 F.3d
588, 592 (3d Cir. 2012); United States v. Moore, 666 F.3d 313, 315 (4th Cir. 2012); United States
v. Lunsford, 470 F. App’x 184, 185 (4th Cir. 2012); United States v. Molina, 484 F. App’x 276, 278
(10th Cir. 2012); United States v. Smoot, 690 F.3d 215, 217–218 (4th Cir. 2012); United States
v. Kline, 494 F. App’x 323, 324 (4th Cir. 2012) (per curiam); United States v. Small, 494 F. App’x
789, 791 (9th Cir. 2012); United States v. Pruess (Pruess II ), 703 F.3d 242, 244 (4th Cir. 2012);
United States v. Barton, 633 F.3d 168, 169 (3d Cir. 2011); United States v. Pruess (Pruess I ), 416
F. App’x 274, 274 (4th Cir. 2011) (per curiam); United States v. Torres-Rosario, 658 F.3d 110, 112
(1st Cir. 2011); United States v. Ritchie, 362 F. App’x 687, 688 (9th Cir. 2010); United States v.
Khami, 362 F. App’x 501, 501 (6th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1113 (9th
Cir. 2010); United States v. Rozier, 598 F.3d 768, 769 (11th Cir. 2010) (per curiam); United States
v. Schwindt, 378 F. App’x 721, 722–23 (9th Cir. 2010); United States v. Williams, 616 F.3d 685,
687 (7th Cir. 2010); United States v. Yancey, 621 F.3d 681, 682 (7th Cir. 2010); United States v.
Duckett, 406 F. App’x 185, 186 (9th Cir. 2010) (Mem.); United States v. Davis, 406 F. App’x 52,
53 (7th Cir. 2010); United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009); United States
v. Brye, 318 F. App’x 878, 879 (11th Cir. 2009); United States v. Stuckey, 317 F. App’x 48, 49 (2d
Cir. 2009); United States v. Smith, 329 F. App’x 109, 110 (9th Cir. 2009); United States v. McCane,
573 F.3d 1037, 1047 (10th Cir. 2009); United States v. Nolan, 342 F. App’x 368, 372 (10th Cir.
2009); United States v. Battle, 347 F. App’x 478, 479 (11th Cir. 2009); United States v. Banks, 350
F. App’x 419, 420 (11th Cir. 2009); United States v. Gilbert, 286 F. App’x 383, 385 (9th Cir. 2008);
United States v. Irish, 285 F. App’x 326, 327 (8th Cir. 2008); United States v. Brunson, 292 F. App’x
259, 261 (4th Cir. 2008); United States v. Frazier, 314 F. App’x 801, 802 (6th Cir. 2008); see also
Hamilton v. Pallozzi, 848 F.3d 614, 617–18 (4th Cir. 2017) (focusing on § 922(g)(1) to determine
the constitutionality of a state law prohibiting felons from possessing firearms).
17

Heller, 554 U.S. at 627 n.26, 635.

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B. Rebuttal of Presumed Lawfulness
By describing certain firearms regulations—including prohibitions on felons
possessing firearms—as “presumptively lawful,” the Heller Court indicated
that a regulation’s presumed constitutionality can be rebutted. As Black’s Law
Dictionary explains, “[a] presumption shifts the burden of production or persua­
sion to the opposing party, who can then attempt to overcome the presumption.”18
For felons, a rebuttable presumption provides an opportunity to prove that an
arms prohibition is unconstitutional as applied to them.19
Even ignoring the Court’s express language, it would be unreasonable to
read Heller’s “presumptively lawful” as “conclusively lawful.”20 For example,
as the Third Circuit explained, if the presumption in favor of conditions and
qualifications on the commercial sale of arms were irrebuttable, meaning “there
were somehow a categorical exception for these restrictions, it would follow that
there would be no constitutional defect in prohibiting the commercial sale of
firearms. Such a result would be untenable under Heller.”21
What is more, Congress and state legislatures could, by classifying any trivial
crime as a felony, constrain the scope of the constitutional right to any extent
desired. But, as Heller made clear, “[c]onstitutional rights are enshrined with the
scope they were understood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that scope too broad.”22
Indeed, the Supreme Court has already acknowledged that federal law
currently prohibits such a broad class of convicts that its application might
sometimes be considered unreasonable. Under 18 U.S.C. § 922(g)(1) (2018),
anyone convicted of “a crime punishable by imprisonment for a term exceeding
one year” is forever prohibited from possessing a firearm.23 This includes even
18
Presumption, Black’s Law Dictionary (11th ed. 2019); see Binderup, 836 F.3d at 360
n.6 (Hardiman, J., concurring in part and concurring in the judgments) (“A presumption of
constitutionality ‘is a presumption . . . [about] the existence of factual conditions supporting
the legislation. As such it is a rebuttable presumption.’” (quoting Borden’s Farm Products Co. v.
Baldwin, 293 U.S. 194, 209 (1934))).
19
See Binderup, 836 F.3d at 347 (plurality) (a successful challenger must “present facts
about himself and his background that distinguish his circumstances from those of persons in the
historically barred class”).
20
See id. at 360 n.6 (Hardiman, J., concurring in part and concurring in the judgments)
(“[W]e doubt the Supreme Court couched its first definitive characterization of the nature of
the Second Amendment right so as to completely immunize this statute from any constitutional
challenge whatsoever. Put simply, we take the Supreme Court at its word that felon dispossession is
‘presumptively lawful.’” (quoting Heller, 554 U.S. at 627 n.26)).
21

United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010).

22

Heller, 554 U.S. at 634 –35.

23

18 U.S.C. § 922(g)(1) (2018).

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state misdemeanors if they are punishable by imprisonment for a term exceeding
two years.24 In Old Chief v. United States, the Court noted that “an extremely
old conviction for a relatively minor felony that nevertheless qualifies under the
statute might strike many jurors as a foolish basis for convicting an otherwise
upstanding member of the community of otherwise legal gun possession.”25
Such foolish bases could “prejudice the Government’s case” so severely that “the
Government would have to bear the risk of jury nullification.”26
Every indication from the Supreme Court supports a rebuttable presumption:
Heller described firearm prohibitions on felons as presumptively lawful; a categori­
cal exception for such laws would produce untenable results; and the Court has
already cast doubt on some applications of federal prohibitions. Thus, most courts
allow the presumptive validity of felon bans to be rebutted.27

C. Historical Justification
Heller expressly stated that its list of presumptively lawful regulatory
measures—including prohibitions on firearm possession by felons—have
“historical justifications.”28 Indeed, the Court’s holding and nearly its entire
analysis—roughly fifty pages—focused on history to inform the Second
Amendment’s text, ultimately leading to the Court’s “adoption of the original
understanding of the Second Amendment.”29 Moreover, the Court introduced

24
Id. § 921(a)(20)(B). There are exceptions, however, for (nonviolent) convictions “pertaining
to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to
the regulation of business practices . . . .” Id. § 921(a)(20)(A).
25
Old Chief v. United States, 519 U.S. 172, 185 n.8 (1997). More than just “otherwise
legal,” the Supreme Court has since held that gun possession is a fundamental right. McDonald
v. City of Chicago, 561 U.S. 742, 778 (2010) (“[T]he Framers and ratifiers of the Fourteenth
Amendment counted the right to keep and bear arms among those fundamental rights necessary to
our system of ordered liberty.”).
26

Old Chief, 519 U.S. at 185 n.8.

See Tyler v. Hillsdale Cty. Sheriff ’s Dep’t, 837 F.3d 678, 686 (6th Cir. 2016) (en banc)
(“Heller only established a presumption that such bans were lawful; it did not invite courts onto an
analytical off-ramp to avoid constitutional analysis.”); United States v. Barton, 633 F.3d 168, 173
(3d Cir. 2011) (“the Supreme Court implied that the presumption may be rebutted.”) (citation
omitted); Heller v. District of Columbia (Heller II ), 670 F.3d 1244, 1253 (D.C. Cir. 2011) (“A
plaintiff may rebut this presumption.”); Peterson v. Martinez, 707 F.3d 1197, 1218 n.1 (10th Cir.
2013) (quoting Heller II, 670 F.3d at 1253); United States v. Chester, 628 F.3d 673, 679 (4th Cir.
2010) (“the phrase ‘presumptively lawful regulatory measures’ suggests the possibility that one or
more of these ‘longstanding’ regulations ‘could be unconstitutional in the face of an as-applied
challenge.’”) (quoting United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)); see also Pena v.
Lindley, 898 F.3d 969, 1004 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part)
(“It is contrary to my instincts to read ‘presumptively lawful’ as ‘conclusively lawful.’”).
27

28
District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]here will be time enough to
expound upon the historical justifications for the exceptions we have mentioned . . . .”).
29

Id. at 625.

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the presumptively lawful regulations by explaining that, “we do not undertake
an exhaustive historical analysis today of the full scope of the Second Amendment . . . .”30 By introducing the presumptively lawful regulations with a reference
to history, the Court indicated that these regulations were based on history like
the rest of its decision.
The context in which the Court discussed the regulations further establishes the need for a historical justification. The Court mentioned the
presumptively lawful regulatory measures in its three-paragraph third section.
The first paragraph began with a pronouncement that “the right secured by the
Second Amendment is not unlimited.”31 Providing examples of limitations, the
Court immediately resorted to history, summarizing concealed-carry restrictions
“[f ]rom Blackstone through the 19th-century cases.”32 The Court then provided
the presumptively lawful regulatory measures.33 The second paragraph discussed
“another important limitation on the right to keep and carry arms . . . the historical
tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”34
The third paragraph remained focused on history, with a discussion of “the
conception of the militia at the time of the Second Amendment’s ratification,”35
and an emphasis that the effect of “modern developments . . . cannot change our
interpretation of the right.”36
Justice Breyer recognized in his dissent that the “presumptively lawful”
measures were supposed to be rooted in history, asking “[w]hy these? Is it that
similar restrictions existed in the late-18th century? The majority fails to cite any
colonial analogues.”37
The Heller majority responded by explaining that it will provide the relevant
history when the opportunity arises:
Justice BREYER chides us for leaving so many applications of
the right to keep and bear arms in doubt, and for not providing
extensive historical justification for those regulations of the
30

Id. at 626.

31

Id.

32

Id. (citations omitted).

“Although we do not undertake an exhaustive historical analysis today of the full scope of
the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.” Id. at 626–27.
33

34

Id. at 627 (emphasis added).

35

Id.

36

Id. at 627–28.

37

Id. at 721 (Breyer, J., dissenting).

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right that we describe as permissible. But since this case
represents this Court’s first in-depth examination of the Second
Amendment, one should not expect it to clarify the entire
field . . . . And there will be time enough to expound upon the
historical justifications for the exceptions we have mentioned if
and when those exceptions come before us.38
Clearly, as the Eighth Circuit noted, “the Supreme Court contemplated . . . a
historical justification for the presumptively lawful regulations.”39
Under Supreme Court precedent, longstanding prohibitions on felons are
presumptively lawful, but only if justified by history and tradition, and consistent
with the founding-era understanding of the right. The following analysis reveals
such a historical justification for violent or otherwise dangerous felons. But
there is no historical basis for denying nonviolent felons the right to keep and
bear arms.40

III. History
A. English Tradition of Arms Prohibitions
England’s historical tradition cannot be directly applied to an interpretation
of the Second Amendment, because the American colonists developed their own
distinct arms culture that reflected their heavy dependence on firearms for survival
and sport.41 Nevertheless, as an ancestor of American arms culture, English arms
culture is useful for understanding the background of the American right. As
Justice Harlan wrote, the “liberty of the individual” in America was secured with

38

Id. at 635 (emphasis added) (citations omitted).

United States v. Bena, 664 F.3d 1180, 1183 (8th Cir. 2011) (quoting Heller, 554 U.S. at
627); see also Binderup v. Attorney Gen. United States of Am., 836 F.3d 336, 343 (3d Cir. 2016)
(en banc) (plurality opinion) (“Heller catalogued a non-exhaustive list of ‘presumptively lawful
regulatory measures’ that have historically constrained the scope of the right.”).
39

40
“History is consistent with common sense: it demonstrates that legislatures have the power
to prohibit dangerous people from possessing guns. But that power extends only to people who are
dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of
their status as felons.” Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). See
infra notes 74–117 and accompanying text.
41
See Nicholas Johnson, et al., Firearms Law and the Second Amendment: Regulation,
Rights and Policy 240 (2d ed. 2017) (“Ultimately, the American Revolution came because the
colonists were no longer English, having become a new people. Among the exceptional characteristics
of this new people was their hybrid arms culture, the product of meeting and blending of English
and Indian arms cultures.”).

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“regard to what history teaches are the traditions from which it developed as well
as the traditions from which it broke.”42
One English tradition from which American tradition developed was that
of disarming violent and other dangerous persons. The English tradition of
preventing dangerous persons from accessing weapons dates back to at least 602
A.D., when The Laws of King Aethelbirht made it unlawful to “furnish weapons
to another where there is strife . . . .”43
“Dangerous persons” throughout English history were often those involved
in or sympathetic to rebellions and insurrections. In practice, attempts to disarm
such persons sometimes resulted in sweeping prohibitions that included entire
regions or religions suspected of disloyal sympathies. Those willing to swear an
oath of allegiance to the king, however, were often exempted.44
The precedent for disarming rebellious segments of the population was
established in Wales.45 During the Welsh Revolt from 1400 to 1415, a new
law ensured that “none of the . . . Welshmen from henceforth bear any manner
Armour within such City, Borough, or Merchant Town, upon Pain of Forfeiture
of the same Armour, and Imprisonment till they have made Fine in this behalf.”46
The following century, Catholics throughout England “were excluded
from the right to arms because they were considered potentially disloyal and
seditious[.]”47 Catholics had been deprived of civil rights since the 1580s.48 And
in 1610, King James I ordered the seizure of any “Armour, Gunpowder, and
Munition” from “Popish Recusants.”49 An exception in 1689 allowed Catholics

42
Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). Justice Harlan continued
to explain that “[a] decision of this Court which radically departs from [that tradition] could not
long survive, while a decision which builds on what has survived is likely to be sound. No formula
could serve as a substitute, in this area, for judgment and restraint.” Id.
43

Ancient Laws and Institutes of England 3 (Benjamin Thorpe ed. 1840).

See, e.g., 7 William III ch. 5 (1695) (“gentlemen” who swore an oath of allegiance to the
king could possess a sword, case of pistols, and a long gun for fowling or home defense).
44

45

See Johnson, et al., supra note 41, at 145.

2 Henry IV ch. 12 (1400– 01). The towns included “Chester, Salop, Bridgenorth, Ludlow,
Leominster, Hereford, Gloucester, Worcester, [and] other Merchant Towns joining to the Marches
of Wales, [and] the suburbs of the same.” Id.
46

47

Johnson, et al., supra note 41, at 133.

48

Id.

1 Stuart Royal Proclamations: Royal Proclamations of King James I 1603–1625,
247–48 (June 2, 1610) (James F. Larkin & Paul I. Hughes eds., 1973); see also Michael Dalton,
The Countrey Justice 94 (1619) (instructing justices of the peace to take away any “armour, gunpowder, or munition” belonging to “Popish Recusants.”); 2 Stuart Royal Proclamations: Royal
Proclamations of King Charles I, 1625–1646, 736– 37 (Nov. 11, 1640) (James F. Larkin & Paul
I Hughes eds., 1973) (calling for the seizure of all arms belonging to convicted “Popish Recusants”).
49

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to possess arms “for the defence of his House or person” with permission from the
justice of the peace.50
It was not only Catholics that concerned the king. In 1660, the lords
lieutenant were issued instructions for all “disaffected persons [to be] watched and
not allowed to assemble, and their arms seized.”51 Additionally, Charles II ordered
the lord mayor and commissioners for the lieutenancy of London “to make strict
search in the city and precincts for dangerous and disaffected persons, seize and
secure them and their arms, and detain them in custody.”52
England’s 1662 Militia Act empowered the king’s agents “to search for and
seize all arms in the custody or possession of any person or persons whom the
said lieutenants or any two or more of their deputies shall judge dangerous to
the peace of the kingdom.”53 That same year, Charles II ordered Sir Thomas
Peyton and two other deputy lieutenants of Kent “to seize all arms found in the
custody of disaffected persons in the lathe of Shepway, and disarm all factious and
seditious spirits.”54
Charles II then ordered lieutenants in 1684 to seize arms “from dangerous
and disaffected persons.”55 “Disaffected persons” were those disloyal to the current
government, who might want to overthrow it. Until the Glorious Revolution of
1688, this typically included Whigs and non-Anglican Protestants.56 When roles
were reversed after the Glorious Revolution, “disaffected persons” included Tories
loyal to James II, who were perceived as posing a threat to King William III
and Queen Mary II.57 While the “dangerous” group changed depending on who
was in charge of government, the purpose of disarmament laws was usually to
preclude armed insurrections.
50

1 William & Mary ch. 15 (1688).

1 Calendar of State Papers, Domestic Series, of the Reign of Charles II, 1660–1661,
150 (1860).
51

10 Calendar of State Papers, Domestic Series, Domestic Series
Charles II, 1660 –1670, 237 (1895).
52

53

to the
54

of the

Reign

of

8 Danby Pickering, The Statutes at Large, from the Twelfth Year of King Charles II,
Last Year of King James II 40 (1763).
1 Calendar of the Reign of Charles II, supra note 51, at 538.

27 Calendar of State Papers, Domestic Series, of the Reign of Charles II, 1684–1685,
26 –27, 83– 85, 102 (1938).
55

See Johnson, et al., supra note 41, at 125–31; see also id. at 758 (“Between the Restoration
and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select
militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under
the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general
disarmaments of regions home to his Protestant enemies.”) (citing Joyce Lee Malcolm, To Keep
and Bear Arms: The Origins of an Anglo-American Right 31–53 (1994); Lois G. Schwoerer,
The Declaration of Rights, 1689, 76 (1981)).
56

57

See id. at 133, 145– 49.

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In the first year of the reign of William and Mary, a statute forbade those
who refused to declare themselves non-Catholic to “have or keepe in his House
or elsewhere . . . any Arms Weapons Gunpowder or Ammunition (other then
such necessary Weapons as shall be allowed to him . . . for the defence of his
House or person).”58 A 1695 statute required Catholics in Ireland to forfeit all
their guns and ammunition and authorized searches of their homes.59 In addition
to distrusted “papists,” a legal manual instructed constables to search for arms
possessed by persons who were “dangerous.”60
Like his predecessor, William III called in 1699 for the disarming of “great
numbers of papists and other disaffected persons, who disown his Majesty’s
government.”61 The following year, The House of Lords prayed that William III
“would be pleased to order the seizing of all Horses and Arms of Papists, and other
disaffected Persons, and have those ill Men removed from London according to
Law.”62 In response, William III “assured them he would take Care to perform all
that they had desired of him.”63 Then in 1701, King William III “charge[d] all
lieutenants and deputy-lieutenants, within the several counties of [England] and
Wales, that they cause search to be made for arms in the possession of any persons
whom they judge dangerous.”64
In 1715, “frequent rebellions and insurrections . . . by the popish inhabitants”
gave Great Britain “reason to apprehend, that the main body of papists . . . may
hereafter again endeavor to disturb the publick peace and tranquility.”65 So Great
Britain revamped its militia and required Irish Catholics to pay twice as much as
Protestants to support it.66 In 1739, Irish Catholics were ordered to forfeit their
arms, and constables were commanded to annually “search . . . for arms, armour,
and ammunition, in the possession, keeping, power, or custody of all papists.”67

1 William & Mary ch. 15 (1688). The declaration of non-Catholicism, originally required
to sit in either house of Parliament, was codified in 30 Charles II ch. 1 (1678).
58

7 William III ch. 5 (1695). This discriminatory prohibition on the Irish did not violate the
English Bill of Rights, because the Bill of Rights protected the arms rights of only Protestants.
59

60

Robert Gardiner, The Compleat Constable 18 (3d ed. 1708).

5 Calendar of State Papers, Domestic Series, of the Reign of William III, 1699–1700,
79– 80 (1937).
61

2 The History and Proceedings
1660, to the Present Time 20 (1742).
62

63

of the

House

of

Lords,

from the

Restoration

in

Id.

6 Calendar of State Papers: Domestic Series, of the Reign of William III, 1700 –1702,
234 (1937) (second brackets in original).
64

65

2 George I, ch. 9 (1715).

66

Id.

67

13 George II, ch. 6 (1739).

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And when adherents to King James II revolted in 1715, Parliament responded
by forbidding many of those involved “to have in his or their Custody, use or bear
Broad Sword, or Target, Poynard, Whingar, or Durk, Side-pistol, or Side-pistols,
or Gun, or any other warlike Weapons” in various places beyond the home.68
Similar or supplemental acts were passed in 1724,69 1746,70 and 1748.71 As the
1746 Disarmament Act explained, the focus was “preventing Rebellion and
traiterous Attempts in Time to come, and the other Mischiefs arising from the
Profession or Use of Arms, by lawless, wicked, and disaffected Persons.”72
Additionally, as William Blackstone explained, governments fearing a rebel­
lion sometimes used anti-hunting laws “[f ]or prevention of popular insurrections
and resistance to the government, by disarming the bulk of the people . . . a reason
oftener meant, than avowed, by the makers of forest or game laws.”73
In sum, by the time of American independence, England had established
a well-practiced tradition of disarming dangerous persons—violent persons and
disaffected persons perceived as threatening to the crown. While public safety was
a concern, most disarmament efforts were meant to prevent armed rebellions. The
early Americans adopted much of that tradition in the colonies.

B. Colonial America Arms Prohibitions
Firearms were an essential part of daily life in Colonial America. The colonists
depended on firearms for food, protection, trade, sport, and conquest.74 Thus,
they soon grew contemptuous of the constricted nature of the English arms
right. And the right ultimately codified in the Second Amendment of the United
States Constitution reflects the broad, robust, and uniquely American tradition.75
68

1 George I, stat. 2, ch. 54 (1715).

69

11 George I, ch. 26 (1724).

70

19 George II, ch. 39 (1746).

71

21 George II, ch. 34 (1748).

72

19 George II, ch. 39 (1746).

2 William Blackstone, Commentaries on the Laws of England 412 (Edward Christian
ed., 12th ed. 1794).
73

74
“The Colonists in America were the greatest weapon-using people of that epoch in the
world. Everywhere the gun was more abundant than the tool. It furnished daily food; it maintained
its owner’s claims to the possession of his homestead among the aboriginal owners of the soil; it
helped to win the mother country’s wars for possession of the country as a whole.” 1 Charles
Winthrop Sawyer, Firearms in American History 1 (1910).

See, e.g., 1 William Blackstone, Commentaries 143–44 n.40 & n.41 (St. George Tucker
ed., Lawbook Exchange, Ltd. 1996) (1803) (denouncing statutory infringements of the English
right, and noting that the American right was broader); James Madison, Notes for Speech in Congress
Supporting Amendments, June 8, 1789, in The Origin of the Second Amendment 645 (David
Young ed., 1991) (introducing the Second Amendment in Congress, Madison’s notes show that
he denounced the limited scope of the “English Decln. of Rts,” including that it protected only
75

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Nevertheless, Americans continued some English arms traditions, including the
tradition of disarming those perceived as dangerous. Like English laws, colonial
laws were sometimes discriminatory and overbroad—but even those were
intended to prevent danger.76
Inspired by England’s 1328 Statute of Northampton, some American
laws forbade carrying arms in an aggressive and terrifying manner.77 Such laws
were passed in Massachusetts Bay in 1692, New Hampshire in 1759, and
Massachusetts in 1795.78 A 1736 Virginia legal manual allowed for confiscation
of arms, providing that a constable “may take away Arms from such who ride, or
go, offensively armed, in Terror of the People” and may bring the person and their
arms before a Justice of the Peace.79

“arms to [Protestants]”); William Rawle, A View of the Constitution of the United States
of America 126 (2nd ed. 1829) (“In most of the countries of Europe, this right does not seem
to be denied, although it is allowed more or less sparingly”); 3 Joseph Story, Commentaries on
the Constitution of the United States 747 (1833) (“under various pretences the effect of this
provision [in England’s 1689 Declaration of Rights] has been greatly narrowed; and it is at present
in England more nominal than real, as a defensive privilege.”); cf. Bridges v. State of Cal., 314 U.S.
252, 264 (1941) (“to assume that English common law in this [First Amendment] field became ours
is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get
rid of the English common law on liberty of speech and of the press.’”) (quoting Henry Schofield,
Freedom of the Press in the United States. 9 Publications Am. Soc. Soc`y., 67, 76 (1914)).
76
See, e.g., 2 The Colonial Laws of New York from the Year 1664 to the Revolution
687 (James B. Lyon ed., 1894) [hereinafter Colonial Laws of N.Y.] (1664 New York law
forbidding “any slave or slaves to have or use any gun Pistoll sword Club or any other Kind of
Weapon whatsoever, but in the presence or by the Direction of his her or their Master or Mistress,
and in their own Ground.”); Laws and Ordinances of New Netherland, 1638–1674, 234–35
(1868) (1656 New York law “forbid[ing] the admission of any Indians with a gun . . . into any
Houses” “to prevent such dangers of isolated murders and assassinations”).
77

Item, it is enacted, that no man great nor small, of what condition soever he be,
except the king’s servants in his presence, and his ministers in executing of the
king’s precepts, or of their office, and such as be in their company assisting them,
and also [upon a cry made for arms to keep the peace, and the same in such places
where such acts happen,] be so hardy to come before the King’s justices, or other of
the King’s ministers doing their office, with force and arms, nor bring no force in
affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets,
nor in the presence of the justices or other ministers, nor in no part elsewhere,
upon pain to forfeit their armour to the King, and their bodies to prison at the
King’s pleasure.
2 Edw. 3, c. 3 (1328).
Acts and Laws Passed by the Great and General Court of Assembly of Their Majesties
Province of the Massachusetts-Bay 18 (1692); Acts and Laws of His Majesty’s Province of NewHampshire in New-England 2 (1759); 2 Laws of the Commonwealth of Massachusetts, from
November 28, 1780 to February 28, 1807, 652–53 (enacted Jan. 27, 1795) (1807).
78

79

George Webb, The Office of Authority of a Justice of Peace 92–93 (1736).

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As in England, those disloyal to the government were the focus of most
prohibitions throughout the colonial period. Massachusetts Bay leadership was
especially sensitive to sedition, maintaining power by suppressing dissidents.80
Sedition was treated like treason and prosecuted frequently.81 One dissident,
Anne Hutchinson, was convicted of sedition in 1637 for criticizing the colony’s
clergy for its legalistic interpretation of the Bible.82 Hutchinson and some of
her supporters were banished from the colony.83 Of her supporters permitted
to remain in the colony, seventy-six were disarmed.84 Some supporters who
confessed their sins were welcomed back into the community and able to retain
their arms.85
England’s distrust of Catholics revealed itself in the colonies. The French
and Indian War was perceived by many in the United Kingdom as a war
between Protestantism and Catholicism.86 Consequently, Maryland and Virginia
disarmed Catholics in 1756.87 Maryland additionally disarmed anyone who
refused to take an oath of allegiance to King George III, while Virginia exempted
from disarmament anyone willing to take such an oath.88 Virginia included an
additional exception, allowing those being disarmed to keep “such necessary
weapons as shall be allowed to him, by order of the justices of the peace at their
court, for the defence of his house or person.”89 In 1759, Pennsylvania also
disarmed Catholics.90
Disaffected persons became an even greater concern for the colonists as the
Revolutionary War approached. The concern was the same—that people opposed
to those in power would join or support insurrections—but now the disaffected

80

Bradley Chapin, Criminal Justice in Colonial America, 1606–1660, 103 (2010).

81

Id. at 102.

82

Id. at 103.

83

Id. at 104.

Edward Johnson, Johnson’s Wonder-Working Providence: 1628–1651, 175 (J.
Franklin Jameson ed., 1959) (“[T]hose in place of government caused certain persons to be disarmed
in the severall Townes, as in the Towne of Boston, to the number of 58, in the Towne of Salem 6,
in the Towne of Newbery 3, in the Towne of Roxbury 5, in the Towne of Ipswitch 2, and Charles
Towne 2.”).
84

85

See id.

86

Johnson, et al., supra note 41, at 197.

52 Archives of Maryland 454 (J. Hall Pleasants ed., 1935); 7 William Waller Hening,
The Statutes at Large; a Collection of all the Laws of Virginia 35 (1820).
87

88

52 Archives of Maryland, supra note 87, at 451–52; 7 Hening, supra note 87, at 36.

89

7 Hening, supra note 87, at 37.

5 The Statutes
ed., 1898).
90

at

Large

of

Pennsylvania

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persons were those loyal to the British, because the Patriots were the ones creating
the rules.91
Connecticut punished disaffected colonists in 1775. Persons who actively
assisted the British were imprisoned and forfeited their entire estate, while persons
who libeled or defamed acts of the Continental Congress were disfranchised
and prohibited from keeping arms, holding office, or serving in the military.92
“Early in the ensuing year (January 2, 1776) [the Continental] Congress again
recommended ‘the most speedy and effectual measures to frustrate the mischievous
machinations and restrain the wicked practices of these men;’ that ‘they ought to
be disarmed, the dangerous kept in safe custody, or bound with sureties for good
behavior.’”93 The Connecticut Courant on May 20, 1776, complained of “[a]
gang of Tories,” and exclaimed that “[i]f these internal enemies are suffered to
proceed in their hellish schemes, our ruin is certain.”94 Soon after, such Tories
were “convicted of high treason, and sentenced to death,” rather than merely
disarmed or imprisoned.95
In 1776, in response to General Arthur Lee’s plea for emergency military
measures, the Continental Congress recommended that colonies disarm
persons “who are notoriously disaffected to the cause of America, or who have
not associated, and shall refuse to associate, to defend, by arms, these United
Colonies.”96 Massachusetts acted within months “to cause all persons to be
disarmed within their respective colonies who are notoriously disaffected to the
cause of America.”97 The confiscated arms were provided to the Continental
Army. Pennsylvania enacted similar laws in April 1776 and June 1777.98
In 1777, New Jersey empowered its Council of Safety “to deprive and take
from such Persons as they shall judge disaffected and dangerous to the present

91
The British, for their part, implemented far more severe gun control measures on the
colonists. These laws—including bans on domestic commerce in gunpowder, bans on the
importation of gunpowder and arms, and confiscation of gunpowder and arms—and the Patriots’
dogged defiance of the laws, led to the start of the Revolutionary War. Indeed, the Battles of
Lexington and Concord occurred when British soldiers set out to seize American munitions at
Concord, and American Patriots took up arms to prevent it. See generally David B. Kopel,
How the British Gun Control Program Precipitated the American Revolution 6 Charleston L.
Rev. 283 (2012).
92

G.A. Gilbert, The Connecticut Loyalists in 4 Am. Historical Rev. 273, 282 (1899).

93

Id. at 283 n.2.

94

Id.

95

Id. at 284.

96

1 Journals of the Continental Congress, 1774–1789, 285 (1906).

97

Mass. Gen. Laws ch. 21 (1776).

8 The Statutes at Large of Pennsylvania from 1682 to 1801, 559–60 (1902); 9 id. at
110–14 (1903).
98

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Government, all the Arms, Accoutrements, and Ammunition which they own or
possess.”99 That same year, North Carolina went further, essentially stripping “all
Persons failing or refusing to take the Oath of Allegiance” of any citizenship rights.
Those “permitted . . . to remain in the State” could “not keep Guns or other Arms
within his or their house.”100 In May 1777, Virginia did the same.101 In 1779,
Pennsylvania determined that “it is very improper and dangerous that persons
disaffected to the liberty and independence of this state shall possess or have in
their own keeping, or elsewhere, any firearms.”102 So Pennsylvania “empowered
[militia officers] to disarm any person or persons who shall not have taken any
oath or affirmation of allegiance to this or any other state.”103
Most disarmament efforts during the colonial period targeted disaffected
persons. Like the English, and out of similar concerns of violent insurrections, the
colonists disarmed those who might rebel against them. As the Fifth Circuit noted,
“these revolutionary and founding-era gun regulations . . . targeted particular
groups for public safety reasons . . . . Although these Loyalists were neither
criminals nor traitors, American legislators had determined that permitting these
persons to keep and bear arms posed a potential danger.”104 The laws may have
sometimes been misused to punish political dissidents, but as was the case with all
disarmaments during the colonial period, the justification was always that those
being disarmed were dangerous.

C. Ratifying Conventions and the Founding Era
The Heller Court emphasized that “[c]onstitutional rights are enshrined
with the scope they were understood to have when the people adopted them.”105
Heller thus concluded with “our adoption of the original understanding of the
Second Amendment.”106 The ratifying conventions are therefore instructive in
interpreting the right that was ultimately codified.
Samuel Adams opposed ratifying the Constitution without a declaration
of rights. Adams proposed at Massachusetts’s convention an amendment
guaranteeing that “the said constitution be never construed . . . to prevent

99
100

1777 N.J. Laws 90, ch. 40 § 20.
24 The State Records of North Carolina 89 (Walter Clark ed.1905).

9 William Waller Hening, The Statutes
Virginia 282 (1821).
101

at

Large;

a

Collection

of all the

Laws

of

102

Id.

103

The Acts of the General Assembly of the Commonwealth of Pennsylvania 193 (1782).

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 700
F.3d 185, 200 (5th Cir. 2012).
104

105

District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008).

106

Id. at 625.

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the people of the United States who are peaceable citizens, from keeping their
own arms.”107
Adams’s proposal was celebrated by his supporters as ultimately becoming
the Second Amendment. For example, an editorial in the Boston Independent
Chronicle called for the paper to republish Adams’s proposed amendments
alongside Madison’s proposed Bill of Rights, “in order that they may be compared
together,” to show that “every one of [Adams’s] intended alterations but one [i.e.,
proscription of standing armies]” were adopted.108
“Peaceable” did not necessarily mean law-abiding in the founding era.
Contemporaneous dictionary definitions show that peaceable was better under­
stood as meaning nonviolent. Samuel Johnson’s dictionary defined “peaceable”
as “1. Free from war; free from tumult. 2. Quiet; undisturbed. 3. Not violent;
not bloody. 4. Not quarrelsome; not turbulent.”109 Thomas Sheridan defined
“peaceable” as “Free from war, free from tumult; quiet, undisturbed; not
quarrelsome, not turbulent.”110 Noah Webster defined “peaceable” as “Not
violent, bloody or unnatural.”111 The Heller Court relied on Johnson’s, Sheridan’s,
and Webster’s definitions in defining the Second Amendment’s text.112
New Hampshire proposed a bill of rights that allowed the disarmament of
only violent insurgents: “Congress shall never disarm any citizen, unless such as
are or have been in actual rebellion.”113 New Hampshire’s proposal would not
have disarmed those who posed a mere danger to the public, but only those who
had been engaged in armed conflict against the government.

107

2 Bernard Schwartz, The Bill of Rights: A Documentary History 675 (1971).

Editorial, Boston Independent Chronicle, Aug. 20, 1789, at 2, col. 2; see also Stephen
Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 86 (revised
ed. 2013) (“[T]he Second Amendment . . . originated in part from Samuel Adams’s proposal . . .
that Congress could not disarm any peaceable citizens.”).
108

109

2 Samuel Johnson, A Dictionary of the English Language (5th ed. 1773).

110

Thomas Sheridan, A Complete Dictionary of the English Language 438 (2d ed. 1789).

Peaceable, American Dictionary of the English Language, http://webstersdictionary
1828.com/Dictionary/peaceable (last visited May 5, 2020) [https://perma.cc/2YZH-UX9M].
111

112
For Johnson, see District of Columbia v. Heller, 554 U.S. 570, 581 (“arms”), 582
(“keep”), 584 (“bear”), 597 (“regulate”) (2008). For Sheridan, see id. at 584 (defining “bear”). For
Webster, see id. at 581 (“arms”), 582 (“keep”), 584 (“bear”), 595 (“militia”). See also Peaceable,
Black’s Law Dictionary (6th ed. 1996) (defining “peaceable” as “Free from the character of force,
violence, or trespass.”).

1 The Debates in the Several State Conventions on the Adoption of the Federal
Constitution 326 (Jonathan Elliot ed., 2d ed. 1836). Webster defined “rebellion” as “[a]n open
and avowed renunciation of the authority of the government to which one owes allegiance; or the
taking of arms traitorously to resist the authority of lawful government; revolt.” Rebellion, American
Dictionary of the English Language. http://webstersdictionary1828.com/Dictionary/rebellion
(last visited May 5, 2020) [https://perma.cc/4C29-DXCU].
113

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After Pennsylvania’s ratifying convention, the Anti-Federalist minority—
which opposed ratification without a declaration of rights—proposed the
following right to bear arms:
That the people have a right to bear arms for the defence of
themselves and their own state, or the United States, or for the
purpose of killing game, and no law shall be passed for disarming
the people or any of them, unless for crimes committed, or real
danger of public injury from individuals.114
While the language did not expressly limit “crimes committed” to violent crimes,
every arms prohibition throughout American history to that point had been
based—justified or not—on perceived dangerousness.115 And the non-criminal
basis—“real danger of public injury”—was self-evidently based on dangerousness.
There is no indication that the Anti-Federalists hoped to expand arms prohibitions
for the first time beyond dangerousness through the phrase “crimes committed.”
Colonial and founding-era tradition and the proposals from the other conventions
suggest otherwise.116
As Judge Hardiman from the Third Circuit explained,
the ‘debates from the Pennsylvania, Massachusetts and New
Hampshire ratifying conventions, which were considered
“highly influential” by the Supreme Court in Heller . . . confirm
that the common law right to keep and bear arms did not extend
to those who were likely to commit violent offenses.’ Hence, the
best evidence we have indicates that the right to keep and bear
arms was understood to exclude those who presented a danger
to the public.117
Peaceable citizens, by contrast, were always intended to be protected and could
not be disarmed under any proposal.

114
Nathaniel Breading et al., The Address and Reasons of Dissent of the Minority of
Convention, of the State of Pennsylvania, to their Constituents (Dec. 12, 1787), https://
www.loc.gov/resource/bdsdcc.c0401/?sp=1 [https://perma.cc/5YTZ-J57V].

the

115

See supra notes 41–104 and accompanying text.

See Rawle, supra note 75, at 126 (explaining that the right to arms “ought not . . . be
abused to the disturbance of the public peace. An assemblage of persons with arms, for an unlawful
purpose, is an indictable offense, and even the carrying of arms abroad by an individual, attended
with circumstances giving just reason to fear that he purposes to make an unlawful use of them,
would be sufficient cause to require him to give surety of the peace.”).
116

Binderup v. Attorney Gen. United States, 836 F.3d 336, 368 (3d Cir. 2016) (en banc)
(Hardiman, J., concurring in part and concurring in the judgments) (quoting United States v.
Barton, 633 F.3d 168, 174 (3d Cir. 2011)) (brackets omitted).
117

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D. Restoration of Arms Rights in the Founding Era
Persons who may have been prohibited from keeping arms in the founding
era were often punished by death.118 Many who committed firearms offenses were
not disarmed at all, but instead had to pay a surety to ensure good behavior.119
Even so, there are examples from the colonial and founding periods of prohibited
persons having their right to keep and bear arms restored. Connecticut’s 1775
law disarmed “inimical” persons only “until such time as he could prove his
friendliness to the liberal cause.”120 Massachusetts’s 1776 law disarming disaffected
persons provided that “persons who may have been heretofore disarmed by any
of the committees of correspondence, inspection or safety” may “receive their
arms again . . . by the order of such committee or the general court.”121 Many
disarmament acts provided exemptions for prohibited persons who swore loyalty
to the king.122 And when Anne Hutchinson’s supporters were being disarmed in
the Bay Colony, some who sought forgiveness from the Colony were welcomed
back into the community and could once again possess arms.123 So, once the
perceived danger abated, the arms disability was often lifted.
Another instructive example is Shays’s Rebellion, an armed uprising in
western Massachusetts starting in August 1786.124 Armed bands attacked
courthouses, the federal arsenal in Springfield, and other government properties,
ultimately resulting in a military confrontation with a Massachusetts militia on
February 2, 1787. As the rebellion ceased later that year, Massachusetts estab­
lished “the disqualifications to which persons shall be subjected, who have been,
or may be guilty of treason, or giving aid or support to the present rebellion, and
See Baze v. Rees, 553 U.S. 35, 94 (2008) (noting “the ubiquity of the death penalty in the
founding era” and that it was “the standard penalty for all serious crimes”) (Thomas, J., concurring)
(quoting Stuart Banner, The Death Penalty: An American History 23 (2002)).
118

For example, in 1759, New Hampshire persons “who shall go armed offensively” were
not released “until he or she find such surities of the peace and good behavior.” Acts and Laws
of His Majesty’s Province of New-Hampshire in New England 2 (1759). For an example of how
this process worked, see Welling’s Case, 47 Va. 670, 670 (Va. Gen. Ct. 1849) (“The County court
has authority to require a party to enter into a recognizance to keep the peace . . . . In February
1848, Edward Welling, with two sureties, entered into a recognizance before a justice of the peace
of the county, with condition to appear at the next term of the County court of Wood, and in the
meantime to keep the peace towards all persons in the Commonwealth, and especially towards
Edward Taggart . . . . The cause was then tried, and the Court required the defendant to enter into
a recognizance, with sureties, to keep the peace for one year from that day.”).
119

120

Gilbert, supra note 92, at 282.

121

Mass. Gen. Laws 484 (1776).

See, e.g., 52 Archives of Maryland, supra note 87, at 451–52; 7 Hening, supra note 87, at
36; The Acts of the General Assembly of the Commonwealth of Pennsylvania, supra note 103,
at 193.
122

123

See Johnson, supra note 84, at 175.

See Shays’ Rebellion, History.com, (Oct. 31, 2019), www.history.com/topics/early-us/
shays-rebellion [https://perma.cc/9TQJ-NXAS].
124

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to whom a pardon may be extended.”125 Among these disqualifications were the
temporary forfeiture of many civil rights, including a three-year prohibition on
bearing arms.126
By comparison to the treasonous rebels who took up arms to overthrow the
government in Shays’s Rebellion and had their arms rights restored after three
years, many nonviolent criminals today are prohibited forever from owning
firearms. The contrast between Shays’s rebels and present-day felons can be stark.
For example, in West Virginia, someone who shoplifts three times in seven years,
“regardless of the value of the merchandise,” is forever prohibited from possessing
a firearm.127 In Utah, someone who twice operates a recording device in a movie
theater is forever prohibited from possessing a firearm.128 And in Florida, a man
committed a felony when he released a dozen heart-shaped balloons in a romantic
gesture and thus earned a lifetime firearm prohibition.129 It is inconsistent with
history for many nonviolent present-day felons—someone who shoplifts three
packs of bubble gum in West Virginia—to receive a lifetime firearm prohibition,
when prohibited persons in the founding era—including armed insurrectionists—
regained their rights once they no longer posed a violent threat.130

E. Nineteenth-Century Arms Prohibitions
Because the “original understanding” of the Second Amendment defines
its scope,131 the Heller Court looked to nineteenth-century experiences only for
help “understanding . . . the origins and continuing significance of the [Second]
Amendment.”132 Nineteenth-century prohibitions on arms possession were
mostly discriminatory bans on slaves and freedmen.133 Another targeted group
1 Private and Special Statutes
1780 –1805, 145 (1805).
125

of the

Commonwealth

126

Id. at 146 – 47.

127

See W. Va. Code § 61-3A-3(c) (2020).

128

See Utah Code Ann. § 13-10b-201(2)(b) (West 2020).

of

Massachusetts

from

Erika Pesantes, Love Hurts: Man Arrested for Releasing Helium Balloon with His Girlfriend,
Sun Sentinel (Feb. 22, 2013), www.sun-sentinel.com/news/fl-xpm-2013-02-22-fl-helium-balloonenvironmental-crime-20130222-story.html [https://perma.cc/2P9W-JTLU]. The felony examples
were provided in United States v. Torres, 789 F. App’x 655, 658 n.2 (9th Cir. 2020) (Lee,
J., concurring).
129

130

See W. Va. Code Ann. § 61-3A-3(c).

District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (“We conclude that nothing in
our precedents forecloses our adoption of the original understanding of the Second Amendment.”);
id. at 634–35 (“Constitutional rights are enshrined with the scope they were understood to have
when the people adopted them.”).
131

132

Id. at 614.

See, e.g., 1804 Miss. Laws 90; 1804 Ind. Acts 108 § 4 (slaves); 1806 Md. Laws 44 (slaves);
1851 Ky. Acts 296 § 12 (freedmen); 1860– 61 N.C. Sess. Laws 68 (freedmen); 1863 Del. Laws
332 (freedmen).
133

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starting in the latter half of the century were “tramps”—typically defined as males
begging for charity outside of their home county.134 Since, by definition, bans
on tramps did not apply inside their home (or even their county), they were
less restrictive than the current federal ban on felons, which applies everywhere.135
New Hampshire, in 1878, imprisoned any tramp who “shall enter any
dwelling-house . . . without the consent of the owner . . . or shall be found carrying
any fire-arm or other dangerous weapon, or shall threaten to do any injury to any
person, or to the real or personal estate of another.”136 The point of prohibiting
armed tramps from threatening harm to another’s person or property was plainly
to prevent violence.137 Vermont enacted a similar law that year, followed by Rhode
Island, Ohio, Massachusetts, Wisconsin, and Iowa.138 Pennsylvania’s 1879 law was
narrower; it prohibited tramps from carrying a weapon “with intent unlawfully to
do injury or intimidate any other person.”139 Pennsylvania’s wording reflects the
fact that all these laws were enacted for the purpose of promoting public safety by
disarming dangerous persons.
Ohio’s Supreme Court recognized this purpose, opining that Ohio’s
prohibition on tramps was constitutional because it applied to “vicious persons”:
The constitutional right to bear arms is intended to guaranty
to the people, in support of just government, such right, and to
afford the citizen means for defense of self and property . . . . If
he employs those arms which he ought to wield for the safety
and protection of his country, his person, and his property, to
the annoyance and terror and danger of its citizens, his acts find
no vindication in the bill of rights. That guaranty was never
intended as a warrant for vicious persons to carry weapons with
which to terrorize others.140

134
See, e.g., 1 A Digest of the Statute Law of the State of Pennsylvania from the Year
1700 to 1894, 541 (Frank F. Brightly ed., 12th ed. 1894) (“Any person going about from place to
place begging, asking or subsisting upon charity, and for the purpose of acquiring money or living,
and who shall have no fixed place of residence, or lawful occupation in the county or city in which
he shall be arrested, shall be taken and deemed to be a tramp.”).
135

18 U.S.C. § 922(g)(1) (2018).

136

1878 N.H. Laws 612, ch. 270 § 2.

137

See State v. Hogan, 63 Ohio St. 202, 215, 219 (1900).

1878 Vt. Acts 30, ch. 14 § 3; 1879 R.I. Laws 110, ch. 806 § 3; 1880 Oh. Rev. St. 1654, ch.
8 § 6995; Mass. Gen. Laws 232, ch. 257 § 4 (1880); 1 Annotated Statutes of Wisconsin, containing
the General Laws in Force October 1, 1889, at 940 (1889); 1897 Iowa Laws 1981, ch. 5 § 5135.
138

139

Digest of Pa., supra note 134, at 541.

140

State v. Hogan, 63 Ohio St. 202, 218 –19 (1900).

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Arms prohibitions on tramps were justified as promoting public safety by
disarming vicious persons and, therefore, a direct extension of colonial and
founding-era laws that disarmed people based on dangerousness.
Two Kansas restrictions are also relevant. In 1868, Kansas prohibited
“[a]ny person who is not engaged in any legitimate business, any person under
the influence of intoxicating drink, and any person who has ever borne arms
against the government of the United States” from publicly carrying “any
pistol, bowie-knife, dirk, or other deadly weapon.”141 Fifteen years later, Kansas
prohibited the transfer of “any pistol, revolver or toy pistol . . . or any dirk,
bowie-knife, brass knuckles, slung shot, or other dangerous weapons . . . to any
person of notoriously unsound mind.”142 The Kansas Supreme Court held that
“other deadly weapons” did not include long guns.143 Thus, Kansas’s laws did not
prohibit anyone from possessing any arms, nor did they apply to long guns—
which makes them substantially less restrictive than the current federal ban on
felons, which prohibits the keeping and bearing of handguns and long guns.144
As Judge Barrett from the Seventh Circuit explained in a dissent, “[i]n 1791—
and for well more than a century afterward—legislatures disqualified categories
of people from the right to bear arms only when they judged that doing so was
necessary to protect the public safety.”145
When the Heller Court interpreted the Second Amendment, it reviewed
history and tradition from England, the colonial and founding periods, and
the nineteenth century to determine how that history and tradition informed
or reflected the founding-era understanding of the Second Amendment.146

141

2 General Statutes of the State of Kansas 353 (1897).

142

1883 Kan. Sess. Laws 159 § 1.

After initially holding that shotguns (and therefore all firearms) were included based on
the rule of ejusdem generis, Parman v. Lemmon, 244 P. 227, 229–30 (Kan. 1925), the court reversed
itself on rehearing, Parman v. Lemmon, 244 P. 232, 233 (Kan. 1926).
143

144

18 U.S.C. § 922(g)(1) (2018).

Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). Judge Barrett
was dissenting from a decision upholding the federal firearm ban as applied to a nonviolent felon
convicted of mail fraud.
145

Part I (pages 574–76) of Heller summarized the facts of the case. Part II constituted the
majority of the analysis. Part II.A presented a 24-page (576– 600) textual analysis, informed by
English and American history that defined the Second Amendment’s operative and prefatory clauses
and their relationship. Parts II.B–D were a 19-page (600–19) historical analysis: II.B explored state
constitutions in the founding-era; II.C analyzed the drafting history of the Second Amendment;
and II.D “address[ed] how the Second Amendment was interpreted from immediately after its
ratification through the end of the 19th century.” Heller, 554 U.S. at 605. II.E (619–26) focused
mostly on Supreme Court precedents. Part III (626–28) identified traditional restrictions on the
right. Part IV (628–36) addressed the ordinances at issue.
146

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Examining similar sources to identify the historical justification for felon bans
reveals one controlling principal that applies to each historical period: violent or
otherwise dangerous persons could be disarmed. Peaceable persons, conversely,
could not.

F. Twentieth-Century Arms Prohibitions
1. Non-Citizens
Since the Heller Court found limited historical value in nineteenth-century
sources, it is particularly dubious to rely on twentieth-century sources.147
Nevertheless, it is noteworthy that disarmament practices continued to focus
on persons perceived as potentially violent in the twentieth century. And it is
significant that no previous law prohibited a category of people as broad as the
current federal ban on felons.148
In the early twentieth century, as immigration increased and immigrants
were blamed for surges in crime and social unrest, several states enacted firearms
restrictions on non-citizens.149 Some states prohibited non-citizens from possessing arms under the guise of preserving game.150 Pennsylvania made it “unlawful
for any unnaturalized foreign born resident, within this commonwealth, to
either own or be possessed of a shotgun or rifle of any make,” for the stated
purpose of giving “additional protection to wild birds and animals and game.”151
North Dakota and New Jersey enacted similar laws, followed by New Mexico.152
Connecticut—without the pretense of protecting game—forbade any “alien
resident of the United States” to “own or be possessed of any shot gun or rifle.”153
Notably, all these laws allowed handgun ownership.

Heller, 554 U.S. at 614 (“Since those [post-Civil War] discussions took place 75 years after
the ratification of the Second Amendment, they do not provide as much insight into its original
meaning as earlier sources.”).
147

148

18 U.S.C. § 922(g)(1).

149

Johnson, et al., supra note 41, at 501.

England had similarly used game laws to disarm segments of the population. See 2
Blackstone, supra note 73; 1 Tucker’s Blackstone, supra note 75, at 300 (“In England, the people
have been disarmed, generally, under the specious pretext of preserving the game”); Rawle, supra
note 75, at 121–23 (“An arbitrary code for the preservation of game in that country has long
disgraced them.”). But see 2 Blackstone, supra note 73, at 412 n.2 (stating generally, “everyone is
at liberty to keep or carry a gun, if he does not use it for the destruction of game.”).
150

151

1909 Pa. Laws 466 § 1.

1915 N.D. Laws 225–26, ch. 161 § 67; 1915 N.J. Laws 662–63, ch. 355 § 1; 1921 N.M.
Laws 201– 02, ch. 113 § 1.
152

153

1923 Conn. Acts 3732, ch. 259 § 17.

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Other states went further and prohibited ownership of all firearms. Utah
forbade “any unnaturalized foreign born person . . . to own or have in his
possession, or under his control, a shot gun, rifle, pistol, or any fire arm of any
make.”154 Minnesota passed a similar law that same year,155 followed by Colorado
and Michigan.156 In 1925, both Wyoming and West Virginia prohibited anyone
who was not a United States citizen from owning any firearm.157
As had always been the case throughout American history, the people being
disarmed were perceived as dangerous. Like some previous bans—for example,
bans on slaves and freedmen—restrictions on non-citizens unquestionably
included many peaceable persons who did not deserve to be deprived of their
rights.158 But, however misguided, preserving public safety was the underlying
rationale for the restrictions.

2. Violent Criminals
In contrast to non-citizens, most early twentieth-century laws applicable to
Americans restricted, rather than prohibited, arms possession—for example, by
allowing the possession of long guns but not handguns. All such disarmament
laws, however, targeted dangerous persons.
New Hampshire passed a law in 1923 providing that, “No unnaturalized
foreign-born person and no person who has been convicted of a felony against
the person or property of another shall own or have in his possession or under his
control a pistol or revolver . . . .”159 North Dakota and California passed similar
laws that same year, as did Nevada in 1925.160 California amended its law in 1931
to include persons “addicted to the use of any narcotic drug.”161 Then in 1933,
Oregon passed a version of the law that also prohibited machine guns.162 Notably,
none of these laws applied to rifles or shotguns, making them less burdensome
than present-day felon bans that prohibit all firearm possession.163

154

1917 Utah Laws 278.

155

1917 Minn. Laws 839–40, ch. 500 § 1.

156

1919 Colo. Sess. Laws 416–417 § 1; 1921 Mich. Pub. Acts 21 § 1.

157

1925 Wyo. Sess. Laws 110, ch. 106 § 1; 1925 W.Va. Acts 31, ch. 3 § 7.

158

See infra notes 151–157.

159

1923 N.H. Laws 138, ch. 118 § 3.

1923 N.D. Laws 380, ch. 266 § 5; 1923 Ca. Laws 696, ch. 339 § 2; 1925 Nev. Laws 54,
ch. 47 § 2.
160

161

1931 Cal. Laws 2316, ch. 1098 § 2.

162

1933 Or. Laws 488.

163

E.g., 18 U.S.C. § 922(g)(1) (2018) (the federal prohibition on felons).

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Pennsylvania’s 1931 law applied to handguns and some long guns. It provided that, “No person who has been convicted in this Commonwealth or
elsewhere of a crime of violence shall own a firearm, or have one in his possession
or under his control.”164 It defined “firearm” as “any pistol or revolver with a barrel
less than twelve inches, any shotgun with a barrel less than twenty-four inches, or
any rifle with a barrel less than fifteen inches.”165 “Crime of violence” was defined
as “murder, rape, mayhem, aggravated assault and battery, assault with intent to
kill, robbery, burglary, breaking and entering with intent to commit a felony,
and kidnapping.”166
The only law that applied to citizens and prohibited the keeping of all
firearms was from Rhode Island in 1927. Importantly, it applied to only violent
criminals. The law provided that, “No person who has been convicted in this
state or elsewhere of a crime of violence shall purchase own, carry or have in his
possession or under his control any firearm.”167 “Crime of violence” was defined
as “any of the following crimes or any attempt to commit any of the same, viz.:
murder, manslaughter, rape, mayhem, assault or battery involving grave bodily
injury, robbery, burglary, and breaking and entering.”168
The federal felon ban codified in § 922(g)(1) (1938) itself was originally
intended to keep firearms out of the hands of violent persons.169 As the First
Circuit explained in 2011,
the current federal felony firearm ban differs considerably from
the version of the proscription in force just half a century ago.
Enacted in its earliest incarnation as the Federal Firearms Act
of 1938, the law initially covered those convicted of a limited
set of violent crimes such as murder, rape, kidnapping, and
burglary, but extended to both felons and misdemeanants
convicted of qualifying offenses . . . . The law was expanded
to encompass all individuals convicted of a felony . . . several
decades later, in 1961.170
Early twentieth-century practice reflected the traditions of previous centu­
ries throughout American history: violent or otherwise dangerous persons were
164

1931 Pa. Laws 498, ch. 158, § 4.

165

1931 Pa. Laws 497, ch. 158, § 1.

166

Id.

167

1927 R.I. Pub. Laws 257 § 3.

168

1927 R.I. Pub. Laws 256 § 1.

169

See Federal Firearms Act, ch. 850, §§ 1(6), 2(f ), 52 Stat. 1250, 1250–51 (1938).

United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011) (citing Federal Firearms Act, ch.
850, §§ 1(6), 2(f ), 52 Stat. 1250,52 Stat. at 1250–51 (1938); An Act to Strengthen the Federal
Firearms Act, Pub.L. No. 87–342, § 2, 75 Stat. 757, 757 (1961) (some citations omitted)).
170

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sometimes disarmed, but peaceable citizens—even if not necessarily law-abiding—
were not.171 At Massachusetts’s ratifying convention, Samuel Adams proposed an
amendment guaranteeing that “the said constitution be never construed . . . to
prevent the people of the United States who are peaceable citizens, from keeping
their own arms.”172 American tradition reflects the right Adams envisioned.

IV. “Unvirtuous” Citizens
A. Lack of Historical Justification
Some scholars and courts have embraced a theory that the Second
Amendment protected only “virtuous” citizens in the founding era. This theory
allows for “unvirtuous” citizens to be disarmed—a class that includes nonviolent
felons and even nonviolent misdemeanants, and is thus far broader than the
dangerous persons who have traditionally been excluded from the right.173 While
the Founders envisioned a virtuous citizenry, there is no tradition of disarming
persons based on virtue, or even any indication that the right to arms was intended
to be so limited.174 The following sources are most commonly cited in support
of the “unvirtuous” citizen theory, and demonstrate how the theory developed
despite lacking historical foundation.
The “unvirtuous” citizen theory developed largely from Don Kates’s
important 1983 article, Handgun Prohibition and the Original Meaning of the
Second Amendment.175 Kates’s article, however, provides no meaningful support
for the theory. Professor Kates merely noted that “[t]he philosophical tradition

171

See supra notes 74–147 and accompanying text.

172

Schwartz , supra note 107, at 675.

See, e.g., Medina v. Whitaker, 913 F.3d 152, 159 (D.C. Cir. 2019) (upholding a firearm
ban based on a decades-old felony conviction for a false statement on a bank loan application);
Holloway v. Attorney Gen. United States, 948 F.3d 164, 171, 178 (3d Cir. 2020) (upholding a
firearm ban based on a 15-year-old misdemeanor conviction for driving under the influence).
173

174
The Founders similarly envisioned an engaged and informed citizenry, but that does not
justify limiting the free speech of the roughly 37% of Americans who cannot name any of the rights
protected by the First Amendment. See The Federalist No. 46 (James Madison) (“the ultimate
authority . . . resides in the people alone”); The Federalist No. 49 (James Madison & Alexander
Hamilton) (“the people are the only legitimate fountain of power”); The Federalist No. 51 (James
Madison & Alexander Hamilton) (discussing the need for citizen participation to safeguard against
a repressive government); Thomas Jefferson, Letter to Colonel Charles Yancy, Jan. 6, 1816, in The
Political Writings of Thomas Jefferson 93 (E. Dumbauld ed., 1955) (“If a nation expects to
be ignorant and free . . . it expects what never was and never will be.”); Americans Are Poorly
Informed About Basic Constitutional Provisions, Annenberg Public Policy Center, (Sept. 12, 2017),
www.annenbergpublicpolicycenter.org/americans-are-poorly-informed-about-basic-constitutionalprovisions/[https://perma.cc/8QCW-C8EF].

Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment,
82 Mich. L. Rev. 204 (1983) [hereinafter Kates, Original Meaning].
175

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embraced by the Founders regarded the survival of popular government and
republican institutions as wholly dependent upon the existence of a citizenry
that was ‘virtuous’ in upholding that ancient privilege and obligation” valued in
classical Greece and Rome, “to keep arms in his home so as always to be ready
to defend his own rights and to rush to defend the walls when the tocsin warned
of approaching enemies.”176 Professor Kates did not argue that citizens could be
disarmed merely for being unvirtuous, nor did he provide examples of any such
laws. In a separate discussion, Professor Kates asserted that, “[f ]elons simply did
not fall within the benefits of the common law right to possess arms,” but he
did not provide examples of laws prohibiting felons either. Rather, he cited the
ratifying convention proposals discussed above.177
Professor Kates addressed the issue more directly in his 1986 article, The
Second Amendment: A Dialogue.178 Addressing to whom the right to arms extends,
Professor Kates noted that “[f ]ree and republican institutions were believed to
be dependent upon civic virtu which, in turn, depended upon each citizen being
armed—and, therefore, fearless, self-reliant, and upright.”179 Professor Kates thus
concluded that, “[o]ne implication of this emphasis on the virtuous citizen is
that the right to arms does not preclude laws disarming the unvirtuous citizens
(i.e., criminals) or those who, like children or the mentally unbalanced, are
deemed incapable of virtue.”180 Professor Kates did not provide any examples
of laws disarming “unvirtuous” citizens, however, and for support cited only his
previous Original Meaning article, which did not include any examples of such
laws either.181
Glenn Reynolds’s A Critical Guide to the Second Amendment article is frequently cited in support of the virtuous citizen theory.182 Professor Reynolds
quoted Kates’s discussion about virtue in his Dialogue article, and reasoned that

Id. at 231–32. Kates continued to explain that, “[i]n this philosophy, the ideal of republican
virtue was the armed freeholder, upstanding, scrupulously honest, self-reliant and independent defender of his family, home and property, and joined with his fellow citizens in the militia for
the defense of their polity.” Id. at 232; see also id. at 225 n.87 (explaining that to the Anti-Federalists,
“[s]tanding armies were considered a threat to the development of the virtuous, self-reliant citizen
on whom the vitality of the republic rested.”).
176

177

Id. at 266.

Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143
(1986) [hereinafter Kates, Dialogue].
178

179

Id. at 146.

180

Id.

181

See Kates, Original Meaning, supra note 175.

Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461,
480 (1995).
182

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“felons, children, and the insane were excluded from the right to arms . . . .”183
But it is often overlooked that Professor Reynolds noted that prohibitions on
nonviolent felons might contradict history: “Given the rather promiscuous
designation of felonies nowadays, one might imagine an argument to the
contrary in the case of minor nonviolent felonies, crimes that would have been
misdemeanors (or perhaps not even crimes at all) under the common law.”184 The
article included no examples of laws disarming “unvirtuous” citizens.
Two of Saul Cornell’s articles are commonly cited to demonstrate that the
Second Amendment historically excluded unvirtuous citizens. In “Don’t Know
Much About History”: The Current Crisis in Second Amendment Scholarship,
Professor Cornell suggested that
[p]erhaps the most accurate way to describe the dominant
understanding of the right to bear arms in the Founding era is
as a civic right. Such a right was not something that all persons
could claim, but was limited to those members of the polity who
were deemed capable of exercising it in a virtuous manner.185
For support, Professor Cornell apparently relied on a Pennsylvania prohibition
on disaffected persons.186 As discussed above, such laws were intended to disarm
dangerous persons.
Professor Cornell’s other commonly cited article was co-authored by
Nathan DeDino, and entitled, A Well Regulated Right: The Early American
Origins of Gun Control.187 The authors explained that “[h]istorians have long
recognized that the Second Amendment was strongly connected to the republican
ideologies of the Founding Era, particularly the notion of civic virtue.”188
But they did not show that unvirtuous citizens were excluded from the right.
Rather, the authors cited an article “finding civic virtue to come from an
individual right to bear arms,” which is contrary to the contention that the right
depends on virtue.189

183

Id. at 480 (quoting Kates, Dialogue, supra note 178, at 215–16); Reynolds, supra note 182,

at 480.
184

Reynolds, supra note 182, at 481 n.90.

Saul Cornell, “Don’t Know Much About History”: The Current Crisis in Second Amendment
Scholarship, 29 N. Ky. L Rev. 657, 679 (2002).
185

See id. (citing a discussion on page 680, which seemingly refers to a more elaborate
discussion starting on page 670).
186

Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun
Control, 73 Fordham L. Rev. 487 (2004).
187

188

Id. at 492.

Id. (citing Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am.
Hist. 599 (1982)) (emphasis added).
189

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The Second Amendment: Structure, History, and Constitutional Change by
David Yassky is often cited as well.190 Yassky suggested that “[t]he average citizen
whom the Founders wished to see armed was a man of republican virtue — a man
shaped by his myriad ties to his community, the most important for this purpose
being the militia.”191 But Yassky provided no example of the right being limited
to such men.192
Despite none of these sources providing a single historical law disarming
“unvirtuous” citizens, many courts have been persuaded by them to exclude
unvirtuous citizens from the Second Amendment’s protections.
The First Circuit Court of Appeals recognized that “there is an ongoing
debate among historians about the extent to which the right to bear arms in the
founding period turned on concerns about the possessor’s ‘virtue.’”193 But the
court was nevertheless persuaded that “[i]n the parlance of the republican politics
of the time . . . limitations [on the right to keep and bear arms] were sometimes
expressed as efforts to disarm the ‘unvirtuous.’”194 In addition to Reynolds,195
Cornell,196 and the Dissent of the Minority of Pennsylvania,197 the court included
a quote from a 1697 article opposing standing armies in England.198 The quote
explained that in “the view of late-seventeenth century republicanism . . . ‘[t]he
right to arms was to be limited to virtuous citizens only. Arms were ‘never lodg’d
in the hand of any who had not an Interest in preserving the publick Peace.’”199
This quote was not about colonial America but about the ancient “Israelites,
Athenians, Corinthians, Achaians, Lacedemonians, Thebans, Samnites, and
Romans.”200 And by clarifying that arms were “never lodg’d in the hand of any

190
David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99
Mich. L. Rev. 588 (2000).
191

Id. at 626 –27.

Moreover, this argument was premised on the idea that “[t]he militia was a precondition
for the right to arms,” which Heller expressly rejected. Id. at 627 (citing David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551,
555 (1991)).
192

193

United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009).

194

Id. at 15.

195

Id. at 15 (quoting Reynolds, supra note 182, at 480).

196

Id. (quoting Cornell, supra note 185, at 679).

197

Id. at 15 –16 (quoting Breading et al., supra note 114).

Id. at 16 (citing Robert Shalhope, The Armed Citizen in the Early Republic, 49 Law &
Contemp. Probs. 125, 130 (1986) (quoting John Trenchard & Walter Moyle, An Argument
Shewing, That a Standing Army Is Inconsistent with a Free Government, And Absolutely
Destructive to the Constitution of the English Monarchy 7 (1697))).
198

199

Id. (citing Shalhope, supra note 198 at 130 (quoting Trenchard & Moyle, supra note 198,

at 7)).
200

Trenchard & Moyle, supra note 198, at 7.

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who had not an Interest in preserving the publick Peace,” the quote seems to be
equating unvirtuous persons with dangerous persons, in which case it would be
more consistent with English and American tradition.201 But most importantly,
the article did not provide any examples of actual laws prohibiting “unvirtuous”
citizens from keeping arms—nor did any other source cited by the First Circuit.
The Ninth Circuit “observe[d] that most scholars of the Second Amendment
agree . . . that the right to bear arms does not preclude laws disarming the
unvirtuous citizens (i.e. criminals),” but while recognizing “that the historical
question has not been definitively resolved.”202 For support that most scholars
agree, the court cited Kates’s Dialogue and Reynolds.203
The Seventh Circuit acknowledged that “felon-in-possession laws could
be criticized as ‘wildly overinclusive’ for encompassing nonviolent offenders.”204
But the court dismissed the need to determine “the pedigree of the rule,” in part
because “most scholars of the Second Amendment agree that the right to bear
arms was tied to the concept of a virtuous citizenry and that, accordingly, the
government could disarm ‘unvirtuous citizens.’”205 The Seventh Circuit cited
Vongxay, Reynolds, and Kates, then Thomas Cooley “explaining that constitutions
protect rights for ‘the People’ excluding, among others, ‘the idiot, the lunatic,
and the felon.’”206 But as one scholar previously noted, “[t]he . . . discussion in
Cooley . . . concerns classes excluded from voting. These included women and
the property-less—both being citizens and protected by arms rights.”207 Indeed,
women were often required to possess firearms in the colonial and founding
periods, and they were never prohibited from doing so.208 And hundreds of

201

Id.

United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (quoting Kates, Dialogue,
supra note 178, at 146).
202

203

Id. (quoting Kates, Dialogue, supra note 178, at 146; quoting Reynolds, supra note 182,

at 480).
204

United States v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010).

205

Id. at 684–85.

Id. at 685 (quoting Vongxay, 594 F.3d at 1118 (citing Reynolds, supra note 182, at
480; Kates, Dialogue, supra note 178, at 146)); id. (quoting Thomas Cooley, A Treatise on
Constitutional Limitations 29 (1868)).
206

207
Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695,
709–10 (2009).
208
See, e.g., The Compact with the Charter and Laws of the Colony of New Plymouth
31 (William Brigham ed., 1836) (1632 Plymouth law requiring that “every freeman or other
inhabitant of this colony provide for himselfe and each under him able to beare armes a sufficient
musket and other serviceable peece.”); William Walter Hening, 1 The Statutes at Large: Being
a Collection of All the Laws of Virginia, from the First Session of the Legislature 226
(1808) (1639 Virginia law requiring “ALL persons except negroes to be provided with arms and
ammunition or be fined at pleasure of the Governor and Council”); id. at 263 (1643 Virginia law
providing that “masters of every family shall bring with them to church on Sundays one fixed and

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statutes required the property-less to possess arms, whereas no one was disarmed
based on a lack of property.209
In upholding a firearm ban on persons subject to a protection order, the
Eighth Circuit noted that its decision was “consistent with the view that . . . the
right to arms does not preclude laws disarming the unvirtuous (i.e. criminals)
or those who, like children or the mentally unbalanced, are deemed incapable
of virtue.”210 The court cited Kates’s Dialogue article,211 Reynolds,212 and two
additional articles. Neither of the additional articles provides much support.
The first was another article by Professor Kates, coauthored by Clayton Cramer,
which—like Professor Kates’s previous articles—emphasized the “classical
republican thought” that linked “the right to arms . . . to that of civic virtu
(i.e., the virtuous citizenry).”213 But the authors argued against a test that
allows nonviolent felons to be categorically disarmed.214 In Heller’s Catch-22,
Adam Winkler acknowledged the unvirtuous citizen theory and says it “may be
historically accurate,” before criticizing a test in which “rights are . . . selectively
doled out by legislatures to those whom elected officials deem to be sufficiently

serviceable gun with sufficient powder and shott”); 2 id. at 333 (1676 law mandating “that in goeing
to churches and courts in [ ] tymes of danger, all people be enjoyned and required to goe armed
for their greate security”); Proceedings and Acts of the General Assembly of Maryland Jan.
1637/8—Sept. 1664, 77 (1883) (1638/9 act requiring “that every house keeper or housekeepers
within this Province shall have ready continually upon all occasions within his her or their house
for him or themselves and for every person within his her or their house able to bear armes one
Serviceable fixed gunne.”); George H. Ryden, Delaware –The First State in the Union 117
(1938) (1741 Delaware law requiring that “every Freeholder and taxable Person” possess “[o]ne
well fixed Musket or Firelock.”); Vermont State Papers: Being a Collection of Records and
Documents, Connected with the Assumption and Establishment of Government by the
People of Vermont 307 (William Slade ed. 1823) (1779 Vermont law requiring “every listed
soldier and other householder” to “always be provided with, and have in constant readiness, a well
fixed firelock.”).
209
See generally, David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights
of Young Adults, 43 S. Ill. U. L.J. 495, 586, 612 (2019) (describing hundreds of pre–1800
arms statutes).
210

United States v. Bena, 664 F.3d 1180, 1183 (8th Cir. 2011).

211

Id. (quoting Kates, Dialogue, supra note 178, at 146).

212

Id. (citing Reynolds, supra note 182, at 480–81).

Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological
Considerations, 60 Hastings L.J. 1339, 1359 (2009).
213

Id. at 1362. Kates and Cramer explained that, “American state and federal law continues to
criminalize many trivial matters as felonies,” including “[s]cores of civilian offenses, many of them
posing no physical danger to others.” Id. While recognizing that “some kinds of prior felonious
activity indicate a proclivity to dangerous lawlessness and so should disqualify one from possessing
firearms for a number of years or even life,” they also call “any claim that income tax evasion [or]
antitrust law violations . . . should disqualify anyone from owning a firearm” “absurd.” Id. at 1363.
214

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virtuous or worthy.”215 Professor Winkler suggested a better rationale, which
happens to be historically accurate: “That some people are not virtuous enough
for the legislature’s liking is not a good public policy reason [to prohibit arms
possession]. That some people are too dangerous to permit to have firearms is.”216
None of the Eighth Circuit’s sources provided an example of a law disarming
“unvirtuous” citizens.
In upholding a firearm ban on an illegal alien, the Fourth Circuit was
persuaded that the right could be limited to virtuous citizens.217 The Fourth
Circuit cited Yancey, Vongxay, Reynolds, Kates’s Dialogue, Yassky, Cornell, Cornell
and DeDino, the Massachusetts and New Hampshire ratifying conventions,
and noted the English tradition of “disarm[ing] those . . . considered disloyal
or dangerous.”218 The court also cited Joyce Lee Malcolm’s To Keep and Bear
Arms, in which Professor Malcom explained that historically, “Indians and black
slaves . . . were barred from owning firearms.”219 Discriminatory bans on noncitizens, however, say little about “unvirtuous citizens.”220

215
Adam Winkler, The Second Amendment and the Right to Bear Arms After D.C. v. Heller:
Heller’s Catch-22, 56 UCLA L. Rev. 1551, 1563 n.67 (2009) (emphasis added).
216

Id.

217

United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012).

Id. at 979 (quoting United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010)); id. at
979–80 (citing United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010)); id. at 980 (quoting
Reynolds, supra note 182, at 480); id. (citing Kates, Dialogue, supra note 178, at 146); id. (quoting
Yassky, supra note 190, at 626); id. (quoting Cornell, supra note 185, at 671); id. (quoting Cornell
& DeDino, supra note 187, at 506); id. (quoting Schwartz, supra note 107, at 681).
218

219

Id. (citing Malcolm, supra note 56, at 140–41); Malcolm, supra note 56, at 140.

See, e.g., Aldridge v. Commonwealth, 4 Va. 447, 449 (Va. Gen. Ct. 1824) (“Notwithstanding
the general terms used in the Bill of Rights, it is undeniable that it never was contemplated, or
considered, to extend to the whole population of the State. Can it be doubted, that it not only
was not intended to apply to our slave population, but that the free blacks and mulattoes were also
not comprehended in it? The leading and most prominent feature in that paper, is the equality
of civil rights and liberty. And yet, nobody has ever questioned the power of the Legislature, to
deny to free blacks and mulattoes, one of the first privileges of a citizen; that of voting at elections,
although they might in every particular, except color, be in precisely the same condition as those
qualified to vote. The numerous restrictions imposed on this class of people in our Statute Book,
many of which are inconsistent with the letter and spirit of the Constitution, both of this State and
of the United States, as respects the free whites, demonstrate, that, here, those instruments have
not been considered to extend equally to both classes of our population. We will only instance the
restriction upon the migration of free blacks into this State, and upon their right to bear arms.”);
State v. Newsom, 27 N.C. 250, 252, 254–55 (1844) (upholding North Carolina’s 1840 law
entitled, “an act to prevent free persons of color from carrying fire arms,” which “imposes upon free
men of color, a restriction in the carrying of fire arms, from which the white men of the country are
exempt,” based on the “principle, settled by the highest authority, the organic law of the country,
that the free people of color cannot be considered as citizens, in the largest sense of the term, or, if
they are, they occupy such a position in society, as justifies the legislature in adopting a course of
policy in its acts peculiar to them; so that they do not violate those great principles of justice, which
ought to lie at the foundation of all laws.”).
220

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“Look[ing] to the historical justification for stripping felons . . . of their
Second Amendment rights,” seven judges on a fifteen-judge en banc Third
Circuit adopted an “unvirtuous” citizen test in Binderup v. Attorney General
United States of America.221 “[T]he historically barred class” was determined to be
those who were “unvirtuous” because they “committed a serious criminal offense,
violent or nonviolent.”222 The usual sources were cited for support: Cornell &
DeDino, Cornell, Yassky, Reynolds, Kates’s Original Meaning, Kates’s Dialogue,
Carpio-Leon, Yancey, Vongxay, Rene E., and Bena.223
The D.C. Circuit noted that “[a] number of other circuits . . . have concluded
that history and tradition support the disarmament of those who were not (or
could not be) virtuous members of the community.”224 The court determined
that the theory’s “support among courts and scholars serves as persuasive
evidence that the scope of the Second Amendment was understood to exclude
more than just individually identifiable dangerous individuals.”225 The court
cited the Dissent of the Minority of Pennsylvania, Reynolds, Cornell and
DeDino, Carpio-Leon, Yancey, Vongxay, Binderup, Rene E., and referenced
Massachusetts and Pennsylvania prohibitions on disaffected persons.226
Although seven federal circuit courts of appeals have acknowledged the
virtuous citizen theory and some have even adopted it, no court nor any source
a court has cited has provided any founding-era law disarming “unvirtuous”
citizens—or anyone, for that matter, who was not perceived as dangerous. As Judge

Binderup v. Attorney Gen. United States, 836 F.3d 336, 348–49 (3d Cir. 2016) (en banc)
(plurality opinion).
221

222

Id. at 348 (en banc) (plurality opinion).

Id. (plurality opinion) (citing Cornell & DeDino, supra note 187, at 491–92); id. (plurality
opinion) (citing Cornell, supra note 185, at 679); id. (plurality opinion) (citing Yassky, supra note
190, at 626–27); id. (plurality opinion) (citing Reynolds, supra note 182, at 480); id. (plurality
opinion) (citing Kates, Handgun Prohibition, supra note 175, at 266); id. (plurality opinion) (citing
Kates, Dialogue, supra note 178, at 146); id. (plurality opinion) (citing Kates, Dialogue, supra note
178, at 146); id. (plurality opinion) (quoting United States v. Carpio-Leon, 701 F.3d 974, 979–80
(4th Cir. 2012)); id. (plurality opinion) (citing United States v. Yancey, 621 F.3d 681, 684–85
(7th Cir. 2010)); id. (plurality opinion) (quoting United States v. Vongxay, 594 F.3d 1111, 1118
(9th Cir. 2010) (quoting Kates, Dialogue, supra note 178, at 146)); id. (plurality opinion) (quoting
United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009); id. (plurality opinion) (quoting United
States v. Bena, 664 F.3d 1180, 1184 (2011)).
223

224

Medina v. Whitaker, 913 F.3d 152, 159 (D.C. Cir. 2019).

225

Id. (citing Carpio-Leon, 701 F.3d at 979–80).

Id. at 158–59 (quoting Schwartz, supra note 107, at 665); id. at 159 (quoting Reynolds,
supra note 182, at 480); id. (citing Cornell & DeDino, supra note 187, at 506); id. (citing CarpioLeon, 701 F.3d at 979); id. (quoting Yancey, 621 F.3d at 684–85); id. (citing Vongxay, 594 F.3d at
1118); id. (citing Binderup v. Attorney Gen. United States, 836 F.3d 336, 348 (3d Cir. 2016) (en
banc)); id. (quoting Rene E., 583 F.3d at 15); id. (citing Carpio-Leon, 701 F.3d at 980 (citing Cornell
& DeDino, supra note 187, at 506)).
226

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Hardiman explained, he and the four judges joining his Binderup concurrence
“found no historical evidence on the public meaning of the right to keep and
bear arms indicating that ‘virtuousness’ was a limitation on one’s qualification
for the right—contemporary insistence to the contrary falls somewhere between
guesswork and ipse dixit.”227 Because it lacks historical foundation, the virtuous
citizen theory is defective and contradicts Heller.

B. Unvirtuous Citizens Retained Their Arms
While no historical laws disarmed “unvirtuous” citizens, there were laws
that expressly permitted citizens who were unvirtuous to keep arms. In 1692,
Maryland forbade press masters or anyone else “to seize Press or Carry away
from any Inhabitant Resident in this Province, any Armes or Ammunition of
any kind whatsoever upon any duty or Service, or upon any Account whatsoever . . . .”228 Violent felons were still punished by death, so this was not an exemption
for dangerous persons, but it did prevent unvirtuous nonviolent colonists from
being disarmed.
In 1705, to ensure that militiamen were able to provide their own firearms
and ammunition, Virginia forbade arms required for militia service “from being
impressed upon any account whatsoever, and likewise from being seized or taken
by any manner of distress, attachment, or writt of execution.”229 Anyone who
confiscated the arms was “lyable to the suit of the party greived, wherein double
damages shall be given upon a recovery.”230 Virginia passed similar laws in 1755
and 1757, additionally providing that “every person going to, attending at, or
returning from muster” was “exempted from arrests.”231
The federal Uniform Militia Act in 1792 exempted militia arms “from all
suits, distresses, executions or sales, for debt or for the payment of taxes.”232
This law, like Maryland’s and Virginia’s laws, intentionally kept unvirtuous
citizens armed.

227
Binderup, 836 F.3d at 372 (en banc) (Hardiman, J., concurring in part and concurring in
the judgments); see also Kanter v. Barr, 919 F.3d 437, 464 (7th Cir. 2019) (Barrett, J., dissenting)
(“[A]lthough the right protected by the Second Amendment is not unlimited, its limits are not
defined by a general felon ban tied to a lack of virtue or good character.”) (citation omitted). Judges
Fisher, Chagares, Jordan, and Nygaard joined Judge Hardiman’s Binderup concurrence.
228
13 Archives of Maryland 557 (William Hand Browne ed., 1894). Press masters were
responsible for commandeering private possessions for public service.
229
3 William Waller Hening, The Statutes
Virginia 339 (1823).

Large;

a

Collection

of all the

Laws

of

6 William Waller Hening, The Statutes at Large;
Virginia 538 (1819); 7 Hening, supra note 87, at 100.

a

Collection

of all the

Laws

of

230

at

Id.

231

232

1 Stat. 271, § 1 (1792) (Uniform Militia Act).

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In 1786 Massachusetts, if the tax collector stole the money he collected, the
sheriff could sell the collector’s estate to recover the stolen funds. And if the sheriff
stole the money from the collector’s estate sale, the sheriff ’s estate could be sold to
recover the amount he stole. If an estate sale did not cover the stolen amount, the
deficient collector or sheriff would be imprisoned. But the law made clear that the
necessities of life—including firearms—could not be sold in any estate sale:
[I]n no case whatever, any distress shall be made or taken from
any person, of his arms or household utensils, necessary for
upholding life; nor of tools or implements necessary for his trade
or occupation, beasts of the plough necessary for the cultivation
of his improved land; nor of bedding or apparel necessary for
him and his family; any law, usage, or custom to the contrary
notwithstanding.233
Under this law, which existed when Samuel Adams proposed his amendment
at Massachusetts’s ratifying convention, even these unvirtuous citizens who were
convicted of stealing tax money, imprisoned, and had nearly all their belongings
confiscated retained the right to arms.234
It is no answer to suggest that statutes providing for estate sales without
a firearm exception prove that those persons could be disarmed. They could
immediately acquire a new firearm after the sale, just like any other item. They
were no more prohibited from possessing firearms than they were kitchen utensils,
bedding, or clothing.
It is true that many founders envisioned a virtuous citizenry and some believed
it essential to the Republic.235 But like the Second Amendment’s “well regulated
militia”—which many founders also believed essential to the Republic—the
233

1786 Ma. Laws 265 (emphasis added).

234

See supra note 107 and accompanying text.

George Washington said in his farewell address that “virtue or morality is a necessary spring
of popular government.” Washington’s Farewell Address: Delivered September 17, 1796, 16
(1861). In a speech at Virginia’s ratifying convention, James Madison stated, “To suppose that any
form of government will secure liberty or happiness without any virtue in the people, is a chimerical
idea.” 2 The Debates, Resolutions, and Other Proceedings in Convention, on the Adoption
of the Federal Constitution 393 (Jonathan Elliot ed., 1828). Thomas Jefferson wrote to John
Adams that “[n]o government can continue good but under the control of the people” who need “to
be encouraged in habits of virtue and to be deterred from those of vice.” Thomas Jefferson, Letter
from Thomas Jefferson to John Adams, (Dec. 10, 1819), in 7 The Writings of Thomas Jefferson 115
(1861). John Adams wrote that “[p]ublic virtue cannot exist in a Nation without private, and public
Virtue is the only Foundation of Republics.” Letter from John Adams to Mercy Otis Warren (Apr. 16,
1776), in John Adams, 4 Papers of John Adams 124 (Robert Joseph Taylor ed., 1979). And later,
Adams wrote that “[o]ur Constitution was made only for a moral and religious people. It is wholly
inadequate to the government of any other.” Letter from John Adams to The Officers of the First
Brigade of the Third Division of the Militia of Massachusetts, (Oct. 11, 1798), in 9 The Works of
235

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right to keep and bear arms was not conditioned upon it.236 Recognizing the
broad necessity of virtue in society is different than suggesting that people can be
deprived of fundamental and natural individual rights merely because they lack
virtue. Atheists, adulterers, gamblers, liars, cheaters, lazy layabouts, and others
viewed as unvirtuous in the founding era were never deprived of their right to
keep and bear arms.237
In sum, no laws disarmed “unvirtuous” citizens, and some even provided
language expressly permitting citizens who were unvirtuous to keep the arms they
already owned. Contrasted with the myriad laws disarming dangerous persons,
it must be that the “historical justification” for a ban on felons is the tradition of
disarming dangerous—not merely unvirtuous—persons.

V. Conclusion
The Heller Court promised a “historical justification” for bans on felons.238
Indeed, there appears to be such a justification for violent felons. Violent and
other dangerous persons have historically been banned from keeping arms in
several contexts—specifically, persons guilty of committing violent crimes,
persons expected to take up arms against the government, persons with violent
tendencies, distrusted groups of people, and those of presently unsound mind.239

John Adams, Second President of the United States, (Charles Francis Adams, ed., 1854). John
Adams’s second cousin, Samuel Adams, firmly believed in the necessity of virtue and frequently
spoke of it. Samuel Adams wrote to his wife, “[i]t is the duty of every one to use his utmost exertions
in promoting the cause of liberty and virtue.” Letter from Samuel Adams to Elizabeth Adams, (Nov.
24, 1780), in 3 William Vincent Wells, The Life and Public Services of Samuel Adams 118
(1865). Benjamin Franklin wrote that, “only a virtuous people are capable of freedom.” Letter from
Benjamin Franklin to Messrs. the Abbes Chalut and Arnaud, (Apr. 17, 1787), in 9 The Writings of
Benjamin Franklin 569 (Albert Henry Smith, ed., 1907).
The preamble to a Massachusetts act to suppress tumults and insurrections started, “in
a free government, where the people have a right to bear arms for the common defence, and the
military power is held in subordination to the civil authority, it is necessary for the safety of the
State, that the virtuous citizens thereof should hold themselves in readiness . . . .” Mass. Gen. Laws
227 (1787). But even this law—distinguishing between “the people” who had the right and the
“virtuous citizens” necessary for the safety of the State—did nothing to limit the right to virtuous
citizens. In fact, a conviction for refusing to serve, neglecting to serve, or desertion under this act
resulted in a fine rather than disarmament. Id. at 367. Convicted officers were prevented from
holding office for 10 years, but they were not disarmed either. Id.
236

See Binderup v. Attorney Gen. United States, 836 F.3d 336, 372 (3d Cir. 2016) (en banc)
(Hardiman, J., concurring in part and concurring in the judgments) (“Contemporary advocates of
a ‘virtuousness’ limitation have projected that constraint onto the right to keep and bear arms based
on the fact that the very existence of the right was informed by republican philosophical principles.
That is not enough.”).
237

238
District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see supra notes 20–40 and
accompanying text.
239

See supra notes 41–146 and accompanying text.

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While many of these bans have been unjust and discriminatory, the purpose was
always the same: to disarm those who posed a danger.240
In contrast, there is no historical justification for completely and forever
depriving peaceable citizens—even nonviolent felons—of the right to keep
and bear arms. Nor is there a historical justification for disarming unvirtuous
citizens.241 History shows that the right could be denied only to mitigate threats
posed by dangerous persons. Therefore, firearm prohibitions on peaceable
citizens contradict the original understanding of the Second Amendment and are
thus unconstitutional.

See Binderup, 836 F.3d at 357 (Hardiman, J., concurring in part and concurring in the
judgments) (“The most cogent principle that can be drawn from traditional limitations on the right
to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not
understood to be protected by the Second Amendment.”).
240

241

See supra notes 147–238 and accompanying text.

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