No. 21-11001
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codified as the 1689 English Bill of Rights, qualified the Militia Act by
guaranteeing “[t]hat the subjects which are Protestants may have arms for
their defence suitable to their Conditions and as allowed by Law.” 1 W. &
M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. “This right,” which restricted the
Militia Act’s reach in order to prevent the kind of politically motivated
disarmaments pursued by Charles II and James II, “has long been understood
to be the predecessor to our Second Amendment.” Heller, 554 U.S. at 593.
This understanding, and the history behind it, defeats any utility of the
Militia Act of 1662 as a historical analogue for § 922(g)(8).
The Government next points to laws in several colonies and states that
disarmed classes of people considered to be dangerous, specifically including
those unwilling to take an oath of allegiance, slaves, and Native Americans.
See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to
Keep Arms in Early America: The Legal Context of the Second Amendment, 25
Law & Hist. Rev. 139, 157–60 (2007). These laws disarmed people
thought to pose a threat to the security of the state due to their perceived lack
of loyalty or societal status. See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 200–01 (5th Cir. 2012)
(discussing relevant scholarship), abrogated by Bruen, 142 S. Ct. at 2126–30.
“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.” Greenlee, supra, at 261.
But we question at a threshold level whether colonial and state laws
disarming categories of “disloyal” or “unacceptable” people present tenable
analogues to § 922(g)(8). Laws that disarmed slaves, Native Americans, and
disloyal people may well have been targeted at groups excluded from the
political community—i.e., written out of “the people” altogether—as much
as they were about curtailing violence or ensuring the security of the state.
Their utility as historical analogues is therefore dubious, at best. In any