Rebecca Sue Orange v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Record No. 0882-25-3
REBECCA SUE ORANGE
v.
COMMONWEALTH OF VIRGINIA
Present: Judges Causey, Raphael and Duffan
Argued at Lexington, Virginia
Opinion Issued July 28, 2026
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
Eric Weathers, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs),
for appellant.
Dennis J. McLoughlin, Jr., Senior Assistant Attorney General (Jason S. Miyares,1 Attorney
General; Rachel A. Glines, Assistant Attorney General, on brief), for appellee.
PUBLISHED OPINION BY
JUDGE STUART A. RAPHAEL
The question presented here is whether the Second Amendment bars the States from
prohibiting persons convicted of forgery from possessing a firearm once they have served their
sentence. The appellant argues that people convicted of nonviolent felonies like forgery do not
permanently forfeit their Second Amendment rights, including the right to possess a firearm in
the home for self-defense. The Commonwealth counters that the Second Amendment permits
disarming anyone convicted of a felony, even a nonviolent one. Both sides recognize that the
federal circuits are split on this question.
1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026.

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Resolving this appeal on the best and narrowest grounds, we hold that the Second
Amendment does not prohibit the States from disarming persons convicted of forgery. Forgery
was punishable in most American jurisdictions by death and forfeiture of all property when the
Second Amendment was ratified in 1791. Not only was disarmament a lesser-included
punishment when the Second Amendment was ratified, but taking away the offender’s firearm
rights is consistent with our Nation’s tradition of disarming those persons who so severely
violate established legal norms as to be deemed untrustworthy to possess firearms. We leave for
another day whether States may disarm persons convicted of other nonviolent felonies.
BACKGROUND
The facts are undisputed. In 2021, appellant Rebecca Sue Orange was convicted of
forgery, a Class 5 felony, in violation of Code § 18.2-172. The record is silent on the details of
her offense or the punishment imposed, except that she was not on probation at the time of the
offense.
In May 2024, a sheriff’s deputy responded to a domestic-disturbance call at Orange’s
home. Orange was intoxicated and had gotten into an argument with her fiancée. When the
deputy arrived, Orange was sitting in a chair on the front deck; a 12-gauge shotgun was leaning
against the wall behind her. Orange’s fiancée showed the deputy a video of Orange carrying the
shotgun into the house.
In November 2024, Orange was indicted under Code § 18.2-308.2(A) on one count of
possessing a firearm after having been convicted of a nonviolent felony. Orange moved to
dismiss the indictment, arguing that the felon-in-possession statute as applied to her violated the
Second Amendment and similar protections in Virginia’s constitution. The Commonwealth
responded that the Second Amendment protected only law-abiding citizens and that the United

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States has a long history of disarming even nonviolent offenders who ignore the law or pose a
threat to the established legal order.
The court denied the motion to dismiss. Orange conditionally pleaded guilty to an
amended indictment for possession of a firearm by a nonviolent felon “outside of ten years” in
violation of the same statute, reserving her right to appeal the denial of her motion to dismiss.2
The court sentenced Orange to incarceration for a term of “5 years in the penitentiary suspended
after serving 1 year in the penitentiary.” The suspended sentence was conditioned on five years
of good behavior and two years of supervised probation. The court stayed execution of the
sentence pending appeal.
ANALYSIS
Orange renews her Second Amendment argument that Code § 18.2-308.2 is
unconstitutional as applied to persons previously convicted of nonviolent felonies.3
Orange Br. 1. She concedes that “[t]he historical tradition supports disarming those who have
been convicted of a violent felony.” Id. at 14-15. But she argues that this tradition does not
support “disarming . . . those convicted of nonviolent felonies.” Id. at 15. For its part, the
Commonwealth responds broadly that “[l]aws prohibiting the possession of a firearm by a
non-violent felon are constitutional.” Commonwealth Br. 6.
Because the caselaw in this area is still percolating, we decline to resolve the broader
question of whether the Second Amendment bars States from disarming all persons previously
2 The “outside of ten years” qualifier avoided the mandatory-minimum sentence of two
years in prison. See Code § 18.2-308.2(A) (“Any person who violates this section by knowingly
and intentionally possessing or transporting any firearm and who was previously convicted of
any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of
imprisonment of two years.”).
3 Orange does not renew her argument that the Virginia Constitution also protects the
right of nonviolent felons to possess a firearm. So we do not consider that claim. See Rule
5A:20(c)(1) (“Only assignments of error listed in the brief will be noticed by this Court.”).

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convicted of nonviolent felonies. We agree with the Commonwealth, however, that the Second
Amendment permits disarming convicted forgers because forgery was punishable by death and
forfeiture of all property when the Second Amendment was ratified.
A. Bruen and Rahimi compel a two-step historical inquiry into whether a law challenged
under the Second Amendment is “relevantly similar” to laws that our tradition is
understood to permit.
The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In
2008, the United States Supreme Court held that the Second Amendment confers “an individual
right to keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 622 (2008). In a
majority opinion authored by Justice Scalia, the Court invalidated the District of Columbia’s
“ban on handgun possession in the home,” as well as “its prohibition against rendering any
lawful firearm in the home operable for the purpose of immediate self-defense.” Id. at 635.
Heller “declin[ed] to establish a level of scrutiny for evaluating Second Amendment
restrictions.” Id. at 634. The Court said instead that “[u]nder any of the standards of scrutiny
that we have applied to enumerated constitutional rights, banning from the home ‘the most
preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would
fail constitutional muster.” Id. at 628-29 (citation and footnote omitted).
Still, Heller cautioned that, “[l]ike most rights, the right secured by the Second
Amendment is not unlimited.” Id. at 626. So “nothing in [the] 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. The Court said that “there will be time enough to expound upon the historical
justifications for the exceptions we have mentioned if and when those exceptions come before

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us.” Id. at 635. In the meantime, the Court identified these examples as “presumptively lawful
regulatory measures,” noting that the “list does not purport to be exhaustive.” Id. at 627 n.26.
Two years later, the Court held “that the Due Process Clause of the Fourteenth
Amendment incorporates the Second Amendment right recognized in Heller.” McDonald v. City
of Chicago, 561 U.S. 742, 791 (2010). In a majority opinion written by Justice Alito, the Court
held that “the 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.” Id. at
778. As in Heller, the Court did not identify the legal test by which lower courts should
determine whether a firearm restriction passes constitutional muster. Seven justices agreed that
nothing in the Court’s opinions cast doubt on longstanding regulatory measures such as
prohibitions on felons possessing firearms. See id. at 786 (plurality opinion by Alito, J., joined
by Roberts, C.J., and Scalia and Kennedy, J.J.); id. at 925 (Breyer, J., dissenting, joined by
Ginsburg and Sotomayor, J.J.).
In 2022, the Supreme Court ruled that courts should not evaluate Second Amendment
challenges to firearm laws using the traditional “‘two-step’ framework . . . that combines history
with means-end scrutiny.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). In an
opinion for the Court by Justice Thomas, Bruen said that “the government may not simply posit
that the regulation promotes an important interest. Rather, the government must demonstrate
that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.
Instead of the traditional “two-step approach,” which the Court found “one step too many,” the
“government must affirmatively prove that its firearms regulation is part of the historical
tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19.

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The analysis required by Bruen also “involves two steps.” Wolford v. Lopez, 225 L. Ed.
2d 494, 506 (2026). First, a court must determine whether the challenged law “clashes with the
‘plain text’ of the Amendment’s language.” Id. (quoting Bruen, 597 U.S. at 24).
This inquiry entails three subsidiary questions. First, does the law
apply to “the people”—which is to say, to “all members of the
political community”? Second, does it concern any form of
“Arms,” i.e., any weapon customarily used for offensive or
defensive purposes? Third, does the law place any restrictions on
either the “keep[ing]” (i.e., possession) or the “bear[ing]” (i.e.,
carrying) of arms?
Id. (alterations in original) (citations omitted). If the plain text of the Second Amendment does
not cover the individual’s conduct, “that ends the inquiry: the Second Amendment does not
apply.” United States v. Price, 111 F.4th 392, 398 (4th Cir. 2024) (en banc), cert. denied, 145 S.
Ct. 1891 (2025). But if the “challenged law falls within the plain text, it is presumptively
unconstitutional—which means that it may violate the preexisting right that the Amendment
codified,” then the analysis proceeds to the second step. Wolford, 225 L. Ed. 2d at 506.
At the second step, “the relevant government—federal, state, or local—may be able to
show that its challenged law did not infringe the historical understanding of the codified right.”
Id. “A variety of sources, including scholarship, may aid this inquiry. But often, the best
evidence may be what Bruen called historical analogues. These are old legal rules from which a
court may draw a strong inference that the modern law at issue is consistent with the codified
right.” Id. (citation omitted).
Bruen identified three important inquiries that courts should
undertake in evaluating proffered analogues. The first is the
number of jurisdictions in which they were adopted. The second is
the extent to which they were well-accepted.
. . . .
The third is whether any analogue or collection of analogues is
“relevantly similar” to the modern law. Determining whether this
condition is met requires consideration of “how” the analogue

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restricted the keeping or bearing of arms—that is, whether it
imposed a restriction similar to that imposed by the challenged
law. And a court must also consider “why” the analogue restricted
the keeping or bearing of arms—that is, whether its rationale was
similar to that of the new law.
Id. at 506-07 (citations omitted).
Applying that approach to the historical evidence in Bruen, the Court invalidated a New
York law that permitted the issuance of a license to carry a firearm in public only when the
applicant demonstrated a special need for self-defense. 597 U.S. at 11, 34-71. Although Justice
Thomas’s majority opinion did not mention it, five justices wrote separately to repeat Heller’s
assurance that the Court was not casting doubt on longstanding prohibitions on the possession of
firearms by felons. Id. at 80-81 (Kavanaugh, J., concurring, joined by Roberts, C.J.); id. at 129
(Breyer, J., concurring, joined by Sotomayor and Kagan, J.J.).
In 2024, the Court in United States v. Rahimi, 602 U.S. 680 (2024), refined the required
historical inquiry in an opinion by Chief Justice Roberts. The Court repeated that a reviewing
“court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is
understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to
modern circumstances.’” Id. at 692 (alteration in original) (quoting Bruen, 597 U.S. at 29 &
n.7). “Why and how the regulation burdens the right are central to this inquiry.” Id. “And when
a challenged regulation does not precisely match its historical precursors, ‘it still may be
analogous enough to pass constitutional muster.’ The law must comport with the principles
underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id.
at 692 (quoting Bruen, 597 U.S. at 30). The Court reiterated that “Heller never established a
categorical rule that the Constitution prohibits regulations that forbid firearm possession in the
home. In fact, our opinion [in Heller] stated that many such prohibitions, like those on the

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possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” Id. at 699
(quoting Heller, 554 U.S. at 626, 627 n.26); id. at 735 (Kavanaugh, J., concurring) (same).
Rahimi upheld the constitutionality of the federal statute that “prohibits an individual
subject to a domestic violence restraining order from possessing a firearm if that order includes a
finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a
child of the partner or individual.” Id. at 684-85 (quoting 18 U.S.C. § 922(g)(8)). The Court
reasoned that, “[s]ince the founding, our Nation’s firearm laws have included provisions
preventing individuals who threaten physical harm to others from misusing firearms. As applied
to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.” Id. at 690. The
Court relied on a variety of historical analogues to support that conclusion. The analogues
included “going armed” laws that prohibited riding with weapons to frighten people, id. at
693-94, 697-99; and “surety” laws that “authorized magistrates to require individuals suspected
of future misbehavior to post a bond,” id. at 695-66, 699.
The Court recently applied the Bruen-Rahimi framework again in United States v.
Hemani, 225 L. Ed. 2d 314 (2026), as well as in Wolford. Hemani held that the prosecution
there under 18 U.S.C. § 922(g)(3) was inconsistent with the Second Amendment. Section
922(g)(3) prohibits firearm possession by anyone “who is an unlawful user of or addicted to any
controlled substance.” Hemani’s conviction under that statute was premised on “a gun he kept in
the house,” “some marijuana on the property,” and his admission “that he used marijuana ‘about
every other day.’” Hemani, 225 L. Ed. 2d at 322. In an opinion by Justice Gorsuch, joined by
six other Justices, the Court rejected the government’s position that it could “automatically strip
Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a
few times a week,” regardless of “how much marijuana [he] uses or what effect it has on him.”
Id. at 331-32. The Court disagreed with the government that its expansive position was

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supported by the history of vagrancy, civil-commitment, and surety laws. Id. at 325-29. The
“historical evidence the government present[ed]” simply “d[id] not support the categorical
restriction it urge[d].” Id. at 330 n.6.4
Hemani cautioned that the decision in “many respects” was “a narrow one.” Id. at 331.
The Court did “not address efforts to ban addicts, or those presently intoxicated, from possessing
a firearm,” nor did it “address other prophylactic laws Congress might adopt after determining
that users of a particular drug pose a special risk of misusing firearms.” Id. The Court also did
“not address 18 U.S.C. § 922(g)(1)’s provision disarming individuals convicted of felonies (often
including drug-related ones).” Id. Indeed, the Court observed that unlike convictions under
§ 922(g)(3), convictions under “other provisions,” such as the felon-in-possession ban in
§ 922(g)(1), “involve some manner of pre-deprivation process before an individual’s Second
Amendment rights are lost.” Id. at 330 n.6. “For that reason, they differ from subsection (g)(3)
and ‘nothing in our opinion should be taken to cast doubt’ on them.” Id. (quoting Heller, 554
U.S. at 626). The Court added that nothing in the opinion should be construed “to suggest ‘that
the Second Amendment prohibits the enactment of laws banning the possession of guns by
categories of persons thought by a legislature to present a special danger of misuse.’” Id.
(quoting Rahimi, 602 U.S. at 698).
4 One of our decisions last year held that the Second Amendment permitted disarming a
person who admitted to being a user of controlled substances while simultaneously possessing a
firearm. Watkins v. Commonwealth, 83 Va. App. 456, 463 (2025), petition for appeal refused,
No. 250325 (Va. Sept. 11, 2025). A panel of this Court subsequently concluded that “the right to
keep and bear arms in the home for self-defense does not include the right to concurrent drug and
firearm possession, even where the arms in question are found in the home not on the
defendant’s person.” Fitzgerald v. Commonwealth, No. 0261-24-3, slip op. at 19, 2025 Va. App.
LEXIS 319, at *27 (June 3, 2025) (unpublished), petition for appeal granted, No. 250588, 2025
Va. LEXIS 65 (Nov. 7, 2025). The assignments of error allowed by our Supreme Court in
Fitzgerald include that “[t]he Court of Appeals erred in finding that Mr. Fitzgerald, by his use of
drugs and conduct, fell under the ratio decidendi of Watkins” and that “Watkins was wrongly
decided and should be overturned, reversed, or modified.” 2025 Va. LEXIS 65, at *1 (citation
omitted).

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The Court issued its opinion in Wolford a week later. In an opinion by Justice Alito,
joined by five other Justices, the Court invalidated a Hawaii law that prohibited a person with a
conceal-carry permit from bringing firearms onto private property open to the public without the
express and affirmative consent of the property owner. 225 L. Ed. 2d at 503. The law
effectively prohibited persons lawfully carrying firearms “from entering many places that people
routinely visit in the course of their daily routines, such as gas stations, convenience stores,
restaurants, coffee shops, drug stores, grocery stores, ‘big box’ stores, home improvement stores,
barber shops or hair salons, dry cleaners, and laundromats.” Id.
We now apply the Bruen-Rahimi framework here.
B. The Commonwealth does not dispute at Step 1 that the Second Amendment covers
Orange’s conduct in possessing a firearm at home.
At Step 1 of the analysis required by Rahimi and Bruen, the Commonwealth does not
contest Orange’s assertion that the plain text of the Second Amendment covers her conduct in
possessing a shotgun at home. As Heller stated, “the home” is “where the need for defense of
self, family, and property is most acute.” 554 U.S. at 628. Nor does the Commonwealth dispute
that ordinary shotguns—as opposed to “short-barreled shotguns”—qualify as the sort of weapon
“‘in common use’” when the Second Amendment was ratified. Id. at 625, 627 (quoting United
States v. Miller, 307 U.S. 174, 179 (1939)). So we start from the premise that the Second
Amendment covers Orange’s conduct in possessing a firearm in the home.5
5 The Commonwealth also does not claim—as it did in the trial court below and in
Ginevan—that a convicted felon “is not a law-abiding citizen” and therefore “not one of ‘the
people’” covered by the Second Amendment. Brief of the Commonwealth at 9-10, Ginevan v.
Commonwealth, 83 Va. App. 1 (2024) (No. 1765-23-4). We noted in Ginevan that federal
circuits are split on that question. 83 Va. App. at 19 & n.13 (collecting cases). So we assumed
without deciding that Ginevan was one of “the people” protected by the Second Amendment. Id.
at 20. But see Hemani, 225 L. Ed. 2d at 322 (“The Second Amendment protects the right of ‘all
Americans’ to keep and bear firearms for self-defense.” (quoting Heller, 554 U.S. at 581)).

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C. The Commonwealth has satisfied its Step 2 burden to show that disarming felony
forgers is consistent with our historical tradition.
We now turn to “whether the challenged regulation is consistent with the principles that
underpin the Nation’s regulatory tradition.” Rahimi, 602 U.S. at 681 (citing Bruen, 597 U.S. at
26-31).
1. We do not reach the Commonwealth’s argument that the Second Amendment
permits all nonviolent felons to be disarmed.
As already noted, Rahimi reiterated Heller’s pronouncement that “many” prohibitions on
firearm possession, “like those on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’” Id. at 699 (quoting Heller, 554 U.S. at 626-27 & n.26). Chief Justice
Roberts was joined in that statement by seven other justices. Id. at 683; see also id. at 735
(Kavanaugh, J., concurring) (same). The seven-Justice majority in Hemani repeated that nothing
in that decision “should be taken to cast doubt” upon the felon-in-possession prohibition in
18 U.S.C. § 922(g)(1). 225 L. Ed. 2d at 330 n.6 (quoting Heller, 554 U.S. 626). Wolford
provided the same assurance. 225 L. Ed. 2d at 504.6
Buoyed by that line of authority, the Commonwealth argues that any felony conviction—
even for a nonviolent crime—conclusively satisfies the Commonwealth’s burden under Bruen
and Rahimi to show that felon-disarmament is “‘relevantly similar’ to laws that our tradition is
understood to permit.” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29 & n.7). The
Commonwealth points out that “death was ‘the standard penalty for all serious crimes’ at the
Founding.” Commonwealth Br. 11 (quoting Bucklew v. Precythe, 587 U.S. 119, 129 (2019)).
And “at common law, ‘virtually all felonies were punishable by death.’” Id. (quoting Tennessee
v. Garner, 471 U.S. 1, 13 (1985)).
6 In Rahimi, Justice Thomas called that statement “dicta.” 602 U.S. at 773 (Thomas, J.,
dissenting). But he joined the majority opinions containing that same statement in both Hemani
and Wolford.

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But the federal circuits are split on whether the Second Amendment permits a State to
disarm a person convicted of only a nonviolent felony. Seven circuits have held that the Second
Amendment permits disarming a person who was convicted of a felony without regard to
whether the crime was violent or nonviolent.7 Most of those have rejected the need to examine
on a “felony-by-felony” basis whether disarmament is allowed.8 Two circuits, on the other hand,
have held that disarmament is unconstitutional for persons convicted of at least some nonviolent
crimes that do not suggest a risk of future dangerousness.9 For its part, the Sixth Circuit has
ruled that defendants previously convicted of even violent crimes are entitled, when prosecuted
for possessing a firearm, to show that they should not have lost their firearm rights. United
States v. Williams, 113 F.4th 637, 663 (6th Cir. 2024). The Seventh Circuit has “not decide[d]
whether an individual with a non-dangerous felony [conviction] can be disarmed.” United States
v. Watson, 171 F.4th 1012, 1013 (7th Cir. 2026).10
7 See Zherka v. Bondi, 140 F.4th 68, 93 (2d Cir. 2025), cert. denied, 223 L. Ed. 2d 555
(2026); United States v. Hunt, 123 F.4th 697, 705-07 (4th Cir. 2024), cert. denied, 145 S. Ct.
2756 (2025); United States v. Jackson, 110 F.4th 1120, 1127-29 (8th Cir. 2024), cert. denied,
145 S. Ct. 2708 (2025); United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025) (en banc),
cert. denied, 223 L. Ed. 2d 556 (2026); Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025),
cert. denied, 146 S. Ct. 1768 (2026); United States v. Dubois, 139 F.4th 887, 893 (11th Cir.
2025), cert. denied, 223 L. Ed. 2d 570 (2026); United States v. Johnson, 158 F.4th 200, 208-09
(D.C. Cir. 2025); Medina v. Whitaker, 913 F.3d 152, 159 (D.C. Cir. 2019).
8 See, e.g., Hunt, 123 F.4th at 708; Jackson, 110 F.4th at 1125; Duarte, 137 F.4th at 761;
Vincent, 127 F.4th at 1265.
9 See Range v. Att’y Gen. U.S., 124 F.4th 218, 231 (3d Cir. 2024) (en banc) (“Range’s
crime—making a false statement on an application for food stamps—did not involve a firearm,
so there was no criminal instrument to forfeit”); United States v. Cockerham, 162 F.4th 500, 504
(5th Cir. 2025) (holding that conviction for failing to pay child support—an offense punishable
under State law by up to five years in prison—could not justify loss of Second Amendment
rights), cert. denied, 2026 U.S. LEXIS 2455 (June 8, 2026) (No. 25-1029).
10 Although the First Circuit has not yet answered that question either, it recently rejected
a challenge to 18 U.S.C. § 922(g)(5)(A), which makes it a crime for “alien[s]” who are “illegally
or unlawfully in the United States” to possess a firearm tied to interstate commerce. See United
States v. Vizcaíno-Peguero, 175 F.4th 34 (1st Cir. 2026). The court concluded in that context

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Our own cases have declined to give a blanket answer to whether the Second Amendment
categorically permits disarming persons convicted of a felony. True, we held before Bruen was
decided that the felon-in-possession ban in Code § 18.2-308.2(A) could be applied to a person
“previously adjudicated delinquent for an offense that would have been a felony if he had been
an adult.” Prekker v. Commonwealth, 66 Va. App. 103, 104-05 (2016), overruled on other
grounds by Jennings v. Commonwealth, 82 Va. App. 692, 695 (2024) (en banc). The
Commonwealth insists that Prekker binds us to the categorical rule that a previous felony
conviction justifies permanent disarmament. Commonwealth Br. 7-9. But we do not share the
Commonwealth’s assuredness. We overruled Prekker’s application of a mandatory-minimum
sentence for firearm possession to a person previously adjudicated a juvenile delinquent.
Jennings, 82 Va. App. at 695.
Moreover, Prekker turned on the defendant’s concession “that Code § 18.2-308.2(A)(i)’s
permanent ban on felons possessing firearms is valid” under Heller. See Prekker, 66 Va. App. at
118. That begs the question whether the result would be the same, without such a concession,
under Bruen and Rahimi. See, e.g., Commonwealth v. Holman, 303 Va. 62, 75 (2024) (“[A]
concession of law is not binding on a court.”). We also declined the categorical approach urged
by the Commonwealth in Ginevan v. Commonwealth, 83 Va. App. 1 (2024), petition for appeal
granted, No. 250051, 2025 Va. LEXIS 35 (June 30, 2025), saying it was “a debate into which we
need not wade.” Id. at 19.11
When possible, we seek to resolve cases on the best and narrowest ground. Theologis v.
Weiler, 76 Va. App. 596, 603 (2023). We therefore decline the Commonwealth’s invitation to
that the Second Amendment did not require an individualized finding of dangerousness to
warrant disarmament. Id. at 47.
11 Ginevan upheld the constitutionality of Code § 18.2-308.2(A) as applied to firearm
possession by “violent” felons. 83 Va. App. at 3, 28.

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follow the lead of most federal circuits that have categorically upheld felon-in-possession laws
regardless of whether the underlying crime was violent or nonviolent.
As explained below, the founders understood that forgery was punishable by death and
forfeiture of all property, and that offenders who so transgressed such established legal norms
could be disarmed. Because that is an adequate basis on which to affirm Orange’s conviction,
we leave for another day whether the Second Amendment permits disarming persons who
commit other nonviolent felonies.
2. The founders recognized forgery as a felony punishable by death and forfeiture of
all property.
Is a law that disarms felony forgers “consistent with the Nation’s historical tradition of
firearm regulation”? Bruen, 597 U.S. at 24. After surveying historical laws against forgery in
England and the United States before and after the Second Amendment was ratified in 1791, we
answer in the affirmative.12
12 The dissent critiques our historical survey for including laws that were not cited by the
Commonwealth, even as the dissent cites numerous other laws not mentioned by the parties.
Watkins, however, squarely rejected the argument that “in imposing the burden to provide
historical analogues for a contested statute on ‘the Government,’ the Supreme Court of the
United States intended to confine appellate courts to consider only the historical analogues
provided at the trial level by line prosecutors.” 83 Va. App. at 475 n.18. The Court in Hemani
said, “We decide cases ‘based on the historical record’ and arguments ‘compiled by the parties’
before us.” 225 L. Ed. 2d at 324-25. But that dictum does not disable courts from evaluating
other historical laws not cited by the parties that bear on each side’s principal claim that a
modern law is (or is not) consistent with the historical tradition underlying the Second
Amendment.
The Commonwealth’s principal claim here is that “death was ‘the standard penalty for all
serious crimes’ at the Founding.” Commonwealth Br. 11 (quoting Bucklew, 587 U.S. at 129). It
does not transgress Bruen or Hemani to look more deeply at Founding Era laws not cited by the
Commonwealth to test its claim in the context of the forgery statute at issue. To the contrary, it
is the “court [that] must ascertain whether the new law is ‘relevantly similar’ to laws that our
tradition is understood to permit . . . . Discerning and developing the law in this way is ‘a
commonplace task for any lawyer or judge.’” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S.
at 28) (emphases added). Indeed, courts are uniquely qualified to take judicial notice of current
and historic laws in any American jurisdiction, whether cited by the parties or not. See Va. R.
Evid. 2:202(a) (“Whenever . . . it becomes necessary to ascertain what the law, statutory,
administrative, or otherwise, of this Commonwealth, of another state, [or] of the United States

- 15 -
The most serious forms of forgery in Virginia are currently classified as Class 4 felonies,
Code §§ 18.2-168 to -171, punishable by “a term of imprisonment of not less than two years nor
more than 10 years and . . . a fine of not more than $100,000,” Code § 18.2-10(d). The most
serious forms of forgery under federal law are punishable by a prison term of up to 25 years.
See, e.g., 18 U.S.C. § 1546 (forgery of immigration documents to facilitate international
terrorism). But it was not always so.
When the Bill of Rights was ratified in 1791, England, the United States, Virginia, and
most of our sister States permitted forgery to be punished by death and forfeiture of all personal
and real property. Although Virginia repealed the death penalty for forgery in 1796, it was not
until 1825—34 years after the Second Amendment was ratified—that the federal government
followed suit.
England before and after American independence
William Blackstone’s 18th century treatise on English law “constituted the preeminent
authority on English law for the founding generation.” Heller, 554 U.S. at 593-94 (quoting
Alden v. Maine, 527 U.S. 706, 715 (1999)). His treatise was “‘heavily’ relied upon by the
Founders.” Howell v. McAuliffe, 292 Va. 320, 347 n.15 (2016) (quoting Akhil Reed Amar,
America’s Unwritten Constitution: The Precedents and Principles We Live By 7 (2012)).
The term felony in Blackstone’s time meant “a total forfeiture of either lands, or goods, or
both, at the common law; and to which capital or other punishment may be superadded,
according to the degree of guilt.” 4 William Blackstone, The Commentaries on the Laws of
England 95 (1769). “If a statute makes any new offence felony, the law implies that it shall be
. . . is, or was, at any time, the court may take judicial notice thereof whether specially pleaded
or not.” (emphases added)). Doing so does not run afoul of the party-presentation principle
when the historic laws, as here, are considered in support or in opposition to the party’s principal
argument.

- 16 -
punished with death, . . . as well as with forfeiture: unless the offender prays the benefit of
clergy; which all felons are entitled once to have unless the same is expressly taken away by
statute.” Id. at 98.
The “benefit of clergy” was the “one palliative element which in many cases mitigated”
the death penalty for felony conviction. George W. Dalzell, Benefit of Clergy in America &
Related Matters 10 (1955).
By the seventeenth century, most persons convicted of a crime
within the benefit of clergy could successfully claim the benefit if
[1] they had never claimed the benefit before, and [2] they could
“read as clerks.” Upon a guilty verdict, the sentencing judge
would ask the defendant if he had anything further to say as to why
judgment and execution should not proceed. If the defendant then
“prayed the book” he would be given the chance to read a passage
from the Bible. If the defendant passed this test, the judge was
then obliged to arrest judgment; the convict was then “burnt in the
hand,” and in most cases probably released.
Jeffrey K. Sawyer, Benefit of Clergy in Maryland and Virginia, 34 Am. J. Legal Hist. 49, 53-54
(1990); see also Kathryn Preyer, Penal Measures in the American Colonies: An Overview, 26
Am. J. Legal Hist. 326, 331 n.9 (1982).
All felony offenses at common law were “clergyable” unless the statute provided
otherwise. Sawyer, supra, at 53. The most serious offenses, such as “[m]urder, house-breaking,
certain kinds of robbery, horse-stealing, [and] certain kinds of arson . . . were explicitly
withdrawn from the list of clergyable offenses by statute. The most important felonies that
remained clergyable were petty larceny and manslaughter . . . .” Id.
England had long treated forgery as a heinous crime. The Statute Against Forgers of
False Deeds and Writings of 1562, 5 Eliz. ch. 14, punished a convicted forger by making him
“stand[] in the pillory, . . . having both his ears cut off . . . and his nostrils slit, and seared; by
forfeiture to the crown of the profits of his lands, and by perpetual imprisonment.” Blackstone,

- 17 -
supra, at 245-46. A second offense was a “felony without benefit of clergy.” Id. at 246. The
punishment was severe despite that forgery was “attended with no act of violence.” Id. at 229.
Blackstone catalogued various acts of Parliament in subsequent years that imposed the
death penalty for forgery. Id. at 246-47. Parliament continued to enact new laws that made
forgery punishable by death “without benefit of clergy,” including the dreaded Stamp Act of
1765, 5 Geo. 3 c.12, §§ 18-19 (Eng.).
It was not until 66 years after American independence that England eliminated the death
penalty for most forgery crimes, though not for forgery of wills and other testamentary
instruments. See An Act for Abolishing the Punishment of Death in certain Cases of Forgery of
1832, 2 & 3 Will. 4 ch. 123 (Eng.). England eliminated the death penalty for the remaining
forgery crimes in 1837. See An Act to Abolish the Punishment of Death in Cases of Forgery of
1837, 7 Will. 4 & 1 Vict. ch. 84 (Eng.).
Virginia and other States
Numerous American jurisdictions before and after independence punished the crime of
forgery just as severely as England. “Between 1790 to 1829 . . . the states carried out an
estimated 779 executions, and did so for crimes against people (e.g., murder and rape) [and]
property (e.g., arson, forgery, and horse stealing).” Watson, 171 F.4th at 1023 (alterations in
original) (quoting Hannah Freedman, The Modern Federal Death Penalty: A Cruel and Unusual
Punishment, 107 Cornell L. Rev. 1689, 1709 (2022)). Although the relevant focus of the inquiry
under Bruen is on the “Nation’s historical tradition,” 597 U.S. at 24, we begin with our own.
Virginia’s founders determined at independence that “the common law of England” and
“all statutes or acts of parliament made in aid of the common law” before 1607 (the fourth year
of the reign of James I), “and which are of a general nature, . . . shall be the rule of decision, and
shall be considered in full force, until the same shall be altered” by the General Assembly. 1776

- 18 -
Va. Acts ch. 5, § 6. In 1792, the General Assembly repealed the portion of the 1776 ordinance
that received “any statute or act of parliament.” 1792 Va. Acts ch. 79, § 3, reprinted in 1 Samuel
Shepherd, Statutes at Large of Virginia 199-200 (1835). The 1792 law explained that “the good
people of this commonwealth may be ensnared by an ignorance of acts of parliament, which
have never been published in any collection of the law.” Id., § 2. It also noted that the General
Assembly “during their present session” had enacted “such of the said statutes as to them appear
worthy of adoption.” Id. The common-law reception statute has remained on the books ever
since and is currently found in Code § 1-200.13
Virginia’s reception of English common law at our founding included the rules for
defining and punishing felonies. The Court in Barker v. Commonwealth, 4 Va. (2 Va. Cas.) 122
(1817), citing Blackstone, explained that the “forfeiture of lands or goods, or both, is, by the
Common Law, essential to the offence so termed; insomuch that if a new crime, either in
England or in Virginia, before the year 1789, was created by Statute, and declared thereby to be a
felony, forfeiture would immediately attach thereto.” Id. at 123. The punishment of death
“would also attach thereto, not because the word felony . . . had any reference to capital
punishments, but because all felonies, with a few exceptions only . . . (which exceptions serve to
prove the rule[]) were by the Common Law so punished.” Id.
Both before and after independence, the Virginia General Assembly, like Parliament,
enacted numerous laws imposing the death penalty “without benefit of clergy” on persons
convicted of forgery.14 A handful of forgery crimes that did not carry the death penalty
13 Our Supreme Court has not yet determined whether the precise date for the reception
of English common law is 1776 or 1792. See White v. United States, 300 Va. 269, 277 n.5
(2021). The exact date does not matter here.
14 See 1765 Va. Acts ch. 18, § 68 (tobacco stamps and receipts); 1777 Va. Acts ch. 4, § 5
(certificate of money); 1779 Va. Acts ch. 13, § 6 (land-office warrants); 1779 Va. Acts ch. 24
(government bills of credit and treasure notes); 1782 Va. Acts ch. 52, § 6 (inspection stamps for

- 19 -
nevertheless required the offender to, among other things, “forfeit his whole estate, real and
personal,” and be indentured to military service “without wages” for a term not exceeding seven
years.15 In 1789, as mentioned in Barker, the General Assembly softened the forfeiture penalty
for felonies without benefit of clergy, providing that the offender’s assets would no longer be
forfeited to the Commonwealth but would pass to the offender’s heirs as if the offender had died
intestate. 1789 Va. Acts ch. 30, § 13.
Most of our sister States after independence also continued to impose the death penalty
for various forgery crimes.16 Significantly, that list includes States that adopted constitutions at
the founding that included provisions addressing militias or firearm rights.17 A compilation of
Maryland laws published in 1799—eight years after the Second Amendment was ratified—
identified five different forgery laws, all of which required the offender to “suffer death as a
felon, without benefit of clergy.” Thomas Herty, Digest of the Laws of Maryland 255-56 (1799).
Our dissenting colleague points out that Connecticut and Massachusetts did not impose
the death penalty for forgery, but that is immaterial. That two of the original States did not
impose the maximum punishment for forgery fails to show a widely held belief in the Founding
flour and hemp); 1783 Va. Acts ch. 10, § 35 (tobacco stamps and receipts); 1784 Va. Acts ch. 69
(government certificates and warrants); 1789 Va. Acts ch. 19 (testamentary documents and
promissory notes).
15 See 1777 Va. Acts ch. 2, § 18 (certificates of money); 1777 Va. Acts ch. 5, §§ 4, 9
(loan certificates); 1777 Va. Acts ch. 11 (certain government warrants and drafts).
16 See, e.g., 1776 Del. Acts ch. 45 at 366; 1792 Ga. Acts 35; 1778 Md. Acts ch. 17; Act of
Feb. 8, 1791, reprinted in Laws of the State of New Hampshire 243, 246 (1792); 1780 N.J. Acts
ch. 208, § 1, reprinted in Acts of the General Assembly of the State of New Jersey 136, 137 (Peter
Wilson ed. 1784); 1784-85 N.Y. Laws ch. 88; 1777 N.C. Acts ch. 12, § 10; Act of March 21,
1783, reprinted in 11 Statutes at Large of Pennsylvania from 1682 to 1801, at 81, 89 (1906);
1780 R.I. Laws 46, 51; 1783 S.C. Laws 17, § 2.
17 See Mass. Const. of 1780, pt. I, art. XVII (1780); N.C. Const. of 1776, Declaration of
Rights, art. XVII (1776); Pa. Const. of 1776, Declaration of Rights, art. XIII (1776); Va. Const.
of 1776, Declaration of Rights § 13 (1776).

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Era that imposing the death penalty for forgery exceeded the power of State government. We
should not “assume[] that founding-era legislatures maximally exercised their power to regulate,
thereby adopting a ‘use it or lose it’ view of legislative authority. Such assumptions are flawed.”
Rahimi, 602 U.S. at 739-40 (Barrett, J., concurring).
Like most of its sister States, Virginia continued to enact laws that imposed the death
penalty on forgers even after the States ratified the Second Amendment in 1791. The very next
year, the General Assembly enacted a law condemning anyone who forged a tobacco certificate
to “suffer death.” 1792 Va. Acts ch. 18, § 41. Two years later, the legislature consolidated
various Virginia forgery laws, providing that the offender upon conviction “shall suffer death as
a felon without benefit of clergy.” 1794 Va. Acts ch. 18, § 1.
It was not until 1796 that Virginia eliminated the death penalty for “free persons” for
most felonies except “first degree” murder, broadly defined. See 1796 Va. Acts ch. 2 (codified at
Code (1803), ch. 200, at 355).18 That statute also abolished the “dispensation from punishment
by benefit of clergy.” Id., § 13.19
The federal government
The federal government kept forgery as a capital offense for nearly three decades longer
than Virginia. In 1790—after Congress had approved the Bill of Rights but before ratification by
the States—Congress enacted a statute imposing the death penalty on anyone who forged or
18 One section of the statute imposed a prison term of 4 to 15 years for forging or
counterfeiting “any gold or silver coin” in circulation or “notes of the banks of Alexandria or the
United States.” 1796 Va. Acts ch. 2, § 9. But the statute did not address other forgery crimes.
19 Citing the Third Circuit’s en banc decision in Range, 124 F.4th at 227, Orange
mistakenly suggests that Virginia eliminated the death penalty for forgery before 1796. See
Orange Br. 18; Orange Reply 8. The court in Range erred in claiming that Virginia “at the
Founding” had eliminated the death penalty for “forgery and counterfeiting.” 124 F.4th at 227.
Range mistakenly relied on an 1803 compilation of Virginia laws, id. at 227 n.4, overlooking
Virginia’s earlier statutory history canvassed above.

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counterfeited any certificate or public security of the United States. Act of Apr. 30, 1790, ch. 9,
§ 14, 1 Stat. 112, 115. The law provided that “the benefit of clergy shall not be allowed.” Id.,
§ 31, 1 Stat. 119. The death penalty for forgery and counterfeiting remained in place until 1825.
See Act of March 3, 1825, ch. 45, §§ 17-18, 20, 4 Stat. 115, 119-21 (punishing various forgery
crimes with “imprisonment and confinement to hard labour, not exceeding ten years”); id., § 25,
4 Stat. 122 (repealing prior inconsistent laws); Wynne v. United States, 217 U.S. 234, 241 (1910)
(noting that the 1790 act “was remolded by” the 1825 act).
3. The death penalty for forgery at the founding extended to forgery of nonpublic
records.
Citing Campbell v. Commonwealth, 246 Va. 174 (1993), Orange asserted for the first
time at oral argument here that Founding Era forgery laws imposed the death penalty only for
forging public records, not other records. Orange was convicted of violating Code § 18.2-172,
which provides:
If any person forge any writing, other than such as is mentioned in
§§ 18.2-168 [forgery of a public record] and 18.2-170 [forgery of
a coin or bank note], to the prejudice of another’s right, or utter, or
attempt to employ as true, such forged writing, knowing it to be
forged, he shall be guilty of a Class 5 felony.
(Emphasis added). Orange argued that the founders would not have thought the death penalty
warranted for a person who forged only a nonpublic record.
We are not persuaded. To start, Campbell does not support Orange’s claim. The issue
there was whether the offense of forgery of a public record in violation of Code § 18.2-168
required proof of harm or prejudice to the rights of another. Campbell, 246 Va. at 176. After
surveying 18th century English common law, the Court said that “forgery of both public records
and private papers was a common-law crime in England.” Id. at 179 (emphasis added). But
Campbell determined that common-law forgery of a private record required proof of harm to

- 22 -
another while forgery of a public record did not. Id. at 180-81. The Court concluded that the
General Assembly had codified that distinction in 1819. Id. at 181-83.
Campbell did not address how forgery of nonpublic records was punished at the
founding; that question was not implicated. The opinion made a passing reference that “[t]he
common-law crime of forgery of public records, a capital offense in England, was augmented by
statutes punishing the lesser offense of forgery of certain private documents.” Id. at 180. But
that dictum does not tell us how forgery of nonpublic records was punished.
While most of the Founding Era statutes canvassed above involved forgery of public
records, the death penalty was also imposed at the founding as punishment for forging various
other records as well. In 1711, Parliament imposed the death penalty without benefit of clergy
on persons who forged instruments to transfer or sell the stock of a company.20 It extended that
penalty in 1722 to persons using forgery to impersonate the proprietor of a company to receive or
transfer annuities, stocks or dividends.21 In 1729, Parliament imposed the death penalty without
benefit of clergy on first offenders who forged testamentary instruments, promissory notes, and
other financial instruments.22 Writing in 1769, Blackstone catalogued these and other English
statutes, concluding that “through the number of these general and special provisions, there is
now hardly a case possible to be conceived, wherein forgery, that tends to defraud . . . is not
20 An Act to prevent the Mischiefs by forging Powers to transfer such Stocks, or to
receive such Annuities or Dividends as are therein mentioned, or by fraudulently personating the
true Owners thereof, and to rectify Mistakes of the late Managers for taking Subscriptions for
increasing the Capital Stock of the South Sea Company, 8 Geo. I ch. 22, § 1 (1711) (Eng.).
21 An Act for the more easy assigning or transferring certain redeemable Annuities,
payable at the Exchequer, by Endorsements on the Standing Orders for the same, 9 Geo. I ch. 12,
§ 4 (1722) (Eng.).
22 An Act for the more effectual preventing and further Punishment of Forgery, Perjury
and Subornation of Perjury; and to make it Felony to steal Bonds, Notes or other Securities for
Payment of Money, 2 Geo. II ch. 25, § 1 (1729) (Eng.).

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made a capital crime.” 4 Blackstone, supra, at 246-47. As already noted, the 1832 act of
Parliament that abolished the death penalty for most forgery crimes kept that penalty in place for
forgery of wills and other testamentary writings. 2 & 3 Will. 4 ch. 123. The death penalty for
those offenses was not repealed until 1837. 7 Will. 4 & 1 Vict. ch. 84.
In Virginia, a 1789 law imposed “death as a felon without benefit of clergy” on persons
convicted of forging any “deed, will, testament, bond, . . . [or] promissory note for payment of
money. . . with intention to defraud any person.” 1789 Va. Acts ch. 19. The statute was similar
to one enacted in New York the year before. See 1788 N.Y. Laws ch. 20. Georgia enacted a
similar law in 1792, the year after the Second Amendment was ratified. 1792 Ga. Acts 35.
Virginia reenacted the same offense two years later—also punishable by “death as a felon
without benefit of clergy.” See 1794 Va. Acts ch. 28. And South Carolina followed suit in 1801.
See 1801 S.C. Laws 37. All those statutes imposed the death penalty for forging a promissory
note.
While our colleague argues in dissent that forgery of deeds and testamentary instruments
qualifies as “public records” forgery under Code § 18.2-168—an issue we do not decide23—
promissory notes are not public records under that statute. Our Supreme Court held in 1854 that
forging the endorsement on a promissory note was covered by the predecessor to the “other
writings” forgery statute in Code § 18.2-172, the same statute under which Orange was
convicted. See Powell v. Commonwealth, 52 Va. (11 Gratt.) 822, 829 (1854) (affirming
conviction under Code of 1849, ch. 193, § 5).
In short, the historical record discredits Orange’s assertion that the founders would not
have countenanced the death penalty for persons convicted of forging nonpublic records.
23 Our appellate courts have not decided whether forgery of deeds or testamentary
instruments is punishable as forgery of “public records” under Code § 18.2-168, or forgery of
“other writings” under Code § 18.2-172.

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4. Founding Era evidence controls the scope of firearm rights when such evidence
conflicts with Reconstruction Era evidence.
It is a fair question why our Second Amendment analysis here focuses on Founding Era
laws that recognized the death penalty and property forfeiture as a permissible punishment for
forgery (subsuming the loss of firearm rights), rather than laws from the Reconstruction Era.
After all, although the Second Amendment was ratified in 1791, it was not made binding on the
States until 1868, when “the Due Process Clause of the Fourteenth Amendment incorporate[d]”
it. McDonald, 561 U.S. at 791. By that time, the States and the federal government had
eliminated the death penalty and property forfeiture as a punishment for forgery. So why 1791
instead of 1868?
Although the Supreme Court declined to definitively answer the temporal question in
Bruen, Rahimi, Hemani, or Wolford, it has made clear that because the Second Amendment
codified a preexisting right, we must first examine Founding Era evidence. The Court has
repeatedly referred to the Second Amendment as a preexisting right that was codified in the Bill
of Rights. See Bruen, 597 U.S. at 20 (“‘[I]t has always been widely understood that the Second
Amendment . . . codified a pre-existing right.’ The Amendment ‘was not intended to lay down a
novel principle but rather codified a right inherited from our English ancestors.’” (second
alteration in original) (quoting Heller, 554 U.S. at 599)); id. at 25 (“meant to codify a pre-
existing right”); Hemani, 225 L. Ed. At 323 (same); Wolford, 225 L. Ed. 2d at 506 (“the
preexisting right that the Amendment codified”). In that respect, the Second Amendment is like
the other Bill of Rights provisions. Those provisions “were not intended to lay down any novel
principles of government, but simply to embody certain guaranties and immunities [that] we had
inherited from our English ancestors, and [that] had from time immemorial been subject to
certain well-recognized exceptions arising from the necessities of the case.” Robertson v.
Baldwin, 165 U.S. 275, 281 (1897).

- 25 -
Bruen explained that “when it comes to interpreting the Constitution, not all history is
created equal. ‘Constitutional rights are enshrined with the scope they were understood to have
when the people adopted them.’” 597 U.S. at 34 (quoting Heller, 554 U.S. at 634-35). Courts
must be careful “‘not to go too far back into antiquity’ . . . unless evidence shows that medieval
law survived to become our Founders’ law.” Id. at 35 (quoting Funk v. United States, 290 U.S.
371, 382 (1933)). By the same token, however, courts “must also guard against giving
postenactment history more weight than it can rightly bear.” Id. The Court acknowledged its
statement in Heller that “evidence of ‘how the Second Amendment was interpreted from
immediately after its ratification through the end of the 19th century’ represented a ‘critical tool
of constitutional interpretation.’” Id. (quoting Heller, 554 U.S. at 605). But Bruen qualified that
statement by adding that “postratification adoption or acceptance of laws that are inconsistent
with the original meaning of the constitutional text obviously cannot overcome or alter that text.”
Id. at 36 (quoting Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting)).
Still, the issues in Bruen, Rahimi, Hemani, and Wolford did not require the Court to
address what happens if Founding Era evidence conflicts with that from the Reconstruction Era.
In Bruen, “the public understanding of the right to keep and bear arms in both 1791 and 1868
was, for all relevant purposes, the same with respect to public carry.” 597 U.S. at 38. In Rahimi,
Founding Era laws sufficed to answer the question, so the Court did not examine 19th century
laws. 602 U.S. at 693-98. In Hemani and Wolford, the Court found the asserted historical
analogues insufficient “at either point in time.” Hemani, 225 L. Ed. 2d at 325 n.3; Wolford, 225
L. Ed. 2d at 514-16. Bruen and Rahimi acknowledged the “ongoing scholarly debate on whether
courts should primarily rely on the prevailing understanding of an individual right when the
Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the

- 26 -
right against the Federal Government).” Rahimi, 602 U.S. at 692 n.1 (quoting Bruen, 597 U.S. at
37-38). But “[t]he Court has consistently reserved whether the relevant timeframe for assessing
the Second Amendment’s original meaning, as applied to the States, is 1791 or 1868.” Wolford,
225 L. Ed. 2d at 522 n.7 (Barrett, J., concurring).
Among federal appellate courts, only the Third Circuit has definitively answered the
question, holding that “the constitutional right to keep and bear arms should be understood
according to its public meaning in 1791.” Lara v. Comm’r Penn. State Police, 125 F.4th 428,
441 (3d Cir. 2025), cert. denied sub nom., Bivens v. Second Am. Found., 2026 U.S. LEXIS 2891
(June 30, 2026). The court explained that although laws enacted through the 19th century “can
be evidence of a historical tradition and shed important light on the meaning of the Amendment
as it was originally understood,” such evidence may not be used to contradict the original
understanding. Id. at 441-42. Other federal appellate courts have not yet squarely addressed
what to do when Founding Era evidence conflicts with that of the Reconstruction Era.24
24 Compare Frey v. City of New York, 157 F.4th 118, 128 (2d Cir. 2025) (noting that the
court has “not definitively answer[ed] the question”), with Christian v. James, 176 F.4th 189,
207 (2d Cir. 2026) (Menashi, J., concurring in part and dissenting in part) (“I would resolve the
conflict in favor of 1791.”); compare Kipke v. Moore, 165 F.4th 194, 207 (4th Cir. 2026) (“[W]e
look beyond the Founding Era to determine whether our national tradition of firearm regulation
supports a government’s restriction today.”), petition for cert. filed (Apr. 15, 2026) (No. 25-
1324), with id. at 226 (Agee, J., concurring in part and dissenting in part) (“‘[P]ost-ratification
history [of the Fourteenth Amendment] can confirm a court’s understanding of Founding-Era
public meaning,’ but the Supreme Court has drawn ‘a firm line where later evidence “contradicts
earlier evidence[.]”’” (second and third alterations in original) (quoting Lara, 125 F.4th at 441));
compare also Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1116-17 (11th Cir. 2025) (en banc)
(“[W]e need not and do not decide in this appeal how to address a conflict between the
Founding-era and Reconstruction-era understandings of the right because the law of both eras
restricted the purchase of firearms by minors.”), cert. denied sub nom., Nat’l Rifle Ass’n v. Glass,
2026 U.S. LEXIS 2914 (June 30, 2026), with id. at 1157 n.1 (Newsom, J., concurring) (“[W]hen
the Founding-and Reconstruction-era sources point in different directions, the former has to
prevail.”). See also Schoenthal v. Raoul, 150 F.4th 889, 913 (7th Cir. 2025) (declining to decide
“trickier issue . . . when Founding-era evidence and laws from later periods, such as
Reconstruction, provide opposite signals about the contours of the Second Amendment”), cert.
denied, 224 L. Ed. 2d 380 (2026).

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We conclude that Founding Era evidence controls over conflicting evidence from later
eras. Consider the opposite proposition; suppose that Reconstruction Era evidence has primacy.
If that were correct, then one of two things would have to be true: either (1) the scope of the right
to bear arms under the Second Amendment as applied to the States must have a different
meaning from the one restricting federal power (the “dual-track incorporation” theory); or (2) the
meaning of the Second Amendment as a restriction on federal power was itself modified or
updated in 1868 when the Fourteenth Amendment was ratified (the “reverse incorporation”
theory).25
Under current precedent, however, neither of those theories is viable.
The Supreme Court squarely rejected dual-track incorporation in Ramos v. Louisiana,
590 U.S. 83 (2020), which held that “the Sixth Amendment’s unanimity requirement applies to
state and federal criminal trials equally.” Id. at 93. Before Ramos, Louisiana and Oregon were
the only two States that permitted less than a unanimous jury verdict in criminal cases. Id. at 87.
The Court held that those laws violated the Sixth Amendment because “incorporated provisions
of the Bill of Rights bear the same content when asserted against States as they do when asserted
against the federal government.” Id. at 93. “So if the Sixth Amendment’s right to a jury trial
requires a unanimous verdict to support a conviction in federal court, it requires no less in state
court.” Id. The Court put it even more emphatically in Timbs v. Indiana, 586 U.S. 146 (2019):
“if a Bill of Rights protection is incorporated, there is no daylight between the federal and state
conduct it prohibits or requires.” Id. at 150.
Citing Ramos and Timbs, Bruen made clear that the content of the Second Amendment as
applied to the States is the same as applied to the federal government. Thus, despite that New
25 We use the same names for those theories as Judge Porter. See Koons v. Att’y Gen.,
156 F.4th 210, 293 (3d Cir.) (Porter, J., concurring in the judgment in part and dissenting in
part), reh’g en banc granted and judgment vacated, 162 F.4th 100 (3d Cir. 2025).

- 28 -
York was “bound to respect the right to keep and bear arms because of the Fourteenth
Amendment, not the Second,” the “individual rights enumerated in the Bill of Rights and made
applicable against the States through the Fourteenth Amendment have the same scope as against
the Federal Government.” Bruen, 597 U.S. at 37.
The Court drove home that point in Wolford, cementing the plurality’s view in McDonald
that “the Second Amendment has the same meaning in all parts of the United States.” Wolford,
522 L. Ed. 2d at 513. “It cannot give way to ‘the spirit of Aloha’ in Hawaii, any more than it can
yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald).” Id. (quoting State v.
Wilson, 543 P. 3d 440, 459 (Haw. 2024)). Nor is the Second Amendment different as applied to
the federal government. As the Court explained, “virtually all the provisions of the Bill of Rights
ha[ve] been held to apply equally to the Federal Government and the States.” Id. at 505. The
Second Amendment thus “embodies a uniform national standard,” not “one that varies from one
locale to another.” Id. at 506.
The reverse-incorporation theory fares no better. That theory posits that the meaning of
the right to bear arms was updated from the public understanding of the Second Amendment in
1791 to the public understanding when the Fourteenth Amendment was ratified in 1868. In other
words, the Fourteenth Amendment not only incorporated the 1868 understanding of the right to
bear arms, but reverse-incorporated the same understanding of the Second Amendment as a
limitation on federal power. This “new way” to think about incorporation supposes that “[w]hen
the people adopted the Fourteenth Amendment, they readopted the original Bill of Rights, and
did so in a manner that invested those original 1791 texts with new 1868 meanings.” Kurt Lash,
Respeaking the Bill of Rights: A New Doctrine of Incorporation, 97 Ind. L. J. 1439, 1441 (2022).
The reverse-incorporation theory, however, conflicts with the text of the Due Process
Clause itself, the constitutional precedent that binds us, and the contemporaneous statements of

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the framers of the Fourteenth Amendment. The Due Process Clause of the Fourteenth
Amendment provides that “No State shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1 (emphasis added). It says nothing
about binding the federal government, let alone updating or modifying the meaning of the Bill of
Rights to the public understanding of those rights as of 1868.26 Professor Lash would ground the
reverse-incorporation theory in the Fourteenth Amendment’s Privileges and Immunities
Clause.27 Lash, supra, at 1441, 1448-49. So would Justice Thomas. See McDonald, 561 U.S. at
805-06 (Thomas, J., concurring in part and concurring in the judgment). But the Supreme Court
rejected that basis for incorporating the Bill of Rights in the Slaughter-House Cases, 83 U.S. (16
Wall) 36, 77-78 (1873), and the Supreme Court saw “no need to reconsider that interpretation” in
McDonald, 561 U.S. at 758 (plurality).
When interpreting other Bill of Rights provisions that have been incorporated against the
States, the Supreme Court has looked to the public understanding of the scope of the right in the
Founding Era, not the Reconstruction Era. For instance, when construing how the religion
clauses of the First Amendment applied to State laws prohibiting aid to schools controlled by a
church, the Court rejected as irrelevant various “no-aid” laws adopted “in the second half of the
19th century” by “more than 30 States.” Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 482
(2020). The Court reasoned that such laws could not “establish an early American tradition.”
Id. (emphasis added). The Court found “no inconsistency in recognizing that [Reconstruction
Era] evidence may reinforce an early practice but cannot create one.” Id.
26 The Fifth Amendment, ratified in 1791, already prohibited the federal government
from enacting any law depriving a person “of life, liberty, or property, without due process of
law.” U.S. Const. amend. V.
27 “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States. . . .” U.S. Const. amend. XIV, § 1.

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Similarly, when construing the scope of the Fourth Amendment as a restriction on State
power, the Court has “look[ed] to the statutes and common law of the founding era to determine
the norms that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164,
168 (2008) (emphasis added). The Court rejected the relevance of treatises published after 1791
as probative of the meaning of the Fifth Amendment. Gamble v. United States, 587 U.S. 678,
701-02, 702 n.13 (2019). And when considering the scope of the Confrontation Clause in the
Sixth Amendment, the Court looked to “English common law,” which provided “[t]he founding
generation’s immediate source of the concept.” Crawford v. Washington, 541 U.S. 36, 43
(2004) (emphasis added).
Nothing in Bruen warrants departing from that approach when interpreting the Second
Amendment. To the contrary, Bruen “generally assumed that the scope of the protection
applicable to the Federal Government and States is pegged to the public understanding of the
right when the Bill of Rights was adopted in 1791.” 597 U.S. at 37. That is why Bruen
described “Heller’s interest in mid- to late-19th-century commentary []as secondary.” Id. at 37
(emphasis added). “In other words, [such] 19th-century evidence was ‘treated as mere
confirmation of what the Court thought had already been established.’” Id. (quoting Gamble,
587 U.S. at 702).
Finally, we cannot help but observe that proponents of the reverse-incorporation theory
have not identified contemporaneous evidence that those who drafted or ratified the Fourteenth
Amendment said publicly that the amendment was updating the meaning of the Bill of Rights as
a restriction on federal power. That omission is striking, given that one would expect to see the
idea of reverse-incorporation expressed in contemporaneous debates if it had been intended.
Professor Lash argues that Representative John Bingham—who drafted the Privileges and
Immunities Clause—thought that it incorporated the Bill of Rights as against the States. Lash,

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supra, at 1451 (citing Cong. Globe, 42d Cong., 1st Sess. app. at 84 (Mar. 31, 1871)). But
Bingham never indicated that those rights would be modified from their 1791 meaning. To the
contrary, he said that the rights of each citizen were “those guarantied [sic] to him from the
beginning, but which guarantee has unhappily been disregarded by more than one State of this
Union, defiantly disregarded, simply because of a want of power in Congress to enforce that
guarantee.” Cong. Globe, 39th Cong., 1st Sess. 429 (Jan. 25, 1866) (emphasis added) (Statement
of Rep. Bingham). As Representative James Wilson put it, “We are establishing no new right,
declaring no new principle. It is not the object of this bill to establish new rights, but to protect
and enforce those [that] already belong to every citizen.” Cong. Globe, 39th Cong., 1st Sess.
1117 (Mar. 1, 1866).
For all those reasons, we reject the dual-track incorporation theory as well as the reverse-
incorporation theory. We read current precedent to require that when Founding Era evidence
conflicts with later evidence about the scope of firearm rights protected by the Second
Amendment, Founding Era evidence controls.
5. The founders would have understood the Second Amendment to permit disarming
persons convicted of forgery.
The penalty of disarmament for the crime of forgery “fits within the regulatory tradition”
familiar to the Founding Era because it is a “lesser restriction” than what the founders would
have thought permissible. Rahimi, 602 U.S. at 699. As to “how” the forgery laws burdened the
offender’s “right to armed self-defense,” Bruen, 597 U.S. at 29, disarmament was obviously
subsumed within the punishment of execution and forfeiture of all property, real and personal.
That understanding is reinforced by the congressional debate in 1790 over the federal
crime bill, which revealed the founders’ belief that forgery should be a capital offense because
offenders were too untrustworthy to remain in civil society. Representative Roger Sherman at
first favored eliminating the death penalty for forgery and counterfeiting but relented,

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“conced[ing] to the clause as it stood” after a persuasive speech by Representative Theodore
Sedgwick. 2 Annals of Cong. 1521 (Apr. 7, 1790). Sedgwick “enlarged on the pernicious
consequences of counterfeiting. He considered it as a crime against the most important interests
of society, and of a peculiarly malignant tendency in the present and probable situation of the
United States.” Id. Sedgwick added that “[p]ersons addicted to forgery are seldom, if ever,
reclaimed.” Id. So “the security of the society, therefore, appears to depend on a capital
punishment. The idea is strengthened when we reflect on the mischief and ruin which have
already ensued from forgery.” Id.
Representative Thomas Fitzsimons also opposed eliminating the death penalty for
forgery, citing “the practice and experience of Great Britain.” Id. He said that “the injurious and
fatal consequences to credit which result from forgery are considered in England in so serious a
point of light, that the bank pays notes which they know to be counterfeit. Hence the inexorable
rigor of the laws of that country in cases of forgery.” Id. When Sherman responded that “he had
known persons who had been convicted of this crime, [who] had afterwards reformed,” id., two
other representatives disagreed. Representatives William L. Smith and Aedanus Burke warned
of “the injuries which society was liable to from the ingenuity of these unprincipled persons; the
extreme difficulty of guarding against their depredations, rendered it highly expedient they
should be cut off.” Id.
Orange counters that just because a felon at the founding might have been executed for a
forgery conviction would not justify denying constitutional rights today to a felon who has
completed his sentence. Reply Br. 9-11. Then-Judge Barrett offered a similar critique in 2019:
“[t]he obvious point that the dead enjoy no rights does not tell us what the founding-era
generation would have understood about the rights of felons who lived, discharged their

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sentences, and returned to society.” Kanter v. Barr, 919 F.3d 437, 462 (7th Cir. 2019) (Barrett,
J., dissenting).
But “[t]hat argument cannot be squared with Rahimi, which also relied on a greater-
includes-the-lesser theory in holding that ‘if imprisonment was permissible to respond to the use
of guns to threaten the physical safety of others, then the lesser restriction of temporary
disarmament . . . is also permissible.’” United States v. Hunt, 123 F.4th 697, 706 (4th Cir. 2024)
(quoting Rahimi, 602 U.S. at 699), cert. denied, 145 S. Ct. 2756 (2025); see also Watson, 171
F.4th at 1024 (“[U]ntil the Supreme Court provides further guidance, the ‘greater includes the
lesser’ theory fortifies that conclusion.”). “As the Supreme Court has explained, the Second
Amendment ‘codified a pre-existing right.’ And ‘it is difficult to conclude that the public, in
1791, would have understood someone facing death and estate forfeiture to be within the scope
of those entitled to possess arms.’” Hunt, 123 F.4th at 706 (first quoting Heller, 554 U.S. at 592;
and then quoting Medina v. Whitaker, 913 F.3d 152, 158 (D.C. Cir. 2019)).
Other historical analogues support the inference that the founders understood that those
convicted of serious felonies like forgery should forfeit their firearm rights. Such laws included
the “going armed” laws canvassed in Rahimi. See 602 U.S. at 693-94, 697-99. Virginia’s
“going armed” law in 1786 also prohibited appearing “with force of arms” before ministers of
justice “doing their office.” 1786 Va. Acts ch. 49 (codified at 1 Rev. Code ch. 140 (1819)).
Offenders who violated that command were liable “to forfeit their armour to the Commonwealth
and their bodies to prison, at the pleasure of a court.” Id. In other words, even the nonviolent
offense of appearing armed before a judicial officer warranted the inference that the offender
could not be trusted to keep his weapons. Id.
Virginia’s punishment of horse theft—a capital offense like forgery—is another
Founding Era example of why the punishment for at least some nonviolent crimes was

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understood to include disarmament. In 1789, the legislature imposed the death sentence without
benefit of clergy for, among other crimes, “the felonious stealing of any horse.” 1789 Va. Acts
ch. 22, § 1, reprinted in 13 William Waller Hening, Statutes at Large; Being a Collection of All
the Laws of Virginia, from the First Session of the Legislature 30, 31 (1823). The legislature
extended the death penalty in 1792 to accessories to horse stealing, explaining that “a great
number of persons make a trade to receive and buy of such felons” and “conceal such
Offenders.” 1792 Va. Acts ch. 101, reprinted in Collection of All Such Acts of the General
Assembly of Virginia, of a Public and Permanent Nature, as Are Now in Force 188 (1794).
The court in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct.
2822 (2025), found Virginia’s punishment of horse theft to be “the closest colonial-era analogue
to vehicle theft” and “often subject to the death penalty.” Id. at 468. Those laws satisfy the why
inquiry of Bruen, the court explained, because the laws “were ‘justified by the need to
adequately punish felons, deter reoffending, and protect society from those proven untrustworthy
to follow the law.’” Id. at 469. Most States and the federal government likewise punished
forgery at the founding for the same deterrent purposes and to protect the public from criminals
who could not be trusted to obey the law. Accord Hawker v. New York, 170 U.S. 189, 197
(1898) (“[C]onviction of a felony is evidence of the unfitness of such persons as a class . . . .”
(quoting Foster v. Bd. of Police Comm’rs, 102 Cal. 483, 492 (1894))). In other words, the lesser-
included punishment of disarmament for the serious but nonviolent crimes of forgery and horse
theft would not have troubled the founders.
The founders also disarmed various categories of people who they believed could not be
trusted to be loyal citizens, even those who committed no crime. See Watson, 171 F.4th at 1021
(“[I]n pre- and post-Founding America, the tradition of disarming those viewed as dangerous to
society continued.”). The Continental Congress “recommended” that the colonies “immediately

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. . . cause all persons to be disarmed within their respective colonies, 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, against the hostile attempts of the British fleets and
armies.” 4 Journals of the Continental Congress, 1774-1789, at 205 (1906) (Resolution of Mar.
14, 1776). Massachusetts, Virginia, and Pennsylvania all did so. See Joseph Blocher & Caitlan
Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders, in New Histories
of Gun Rights and Regulation: Essays on the Place of Guns in American Law and Society 131,
136 (Joseph Blocher et al. eds., 2023). Virginia’s statute directed justices of the peace who
administered the oath “forthwith to cause such recusants to be disarmed” who declined to swear
it. 1777 Va. Acts ch. 3, reprinted in 9 William Waller Hening, Statutes at Large; Being a
Collection of All the Laws of Virginia, from the First Session of the Legislature 281, 282 (1821).
After independence, Massachusetts required that anyone pardoned for having participated
in Shays’ Rebellion, even for having “given . . . counsel, aid, comfort or support, voluntarily,
with intent to encourage the opposition to Government,” be disarmed for at least three years. Act
of Feb. 16, 1787, 1787 Mass. Acts 555, 555-56. If they “ke[pt] the peace” for the duration, they
could appear before a court to regain their gun rights upon a showing that they “possess an
unequivocal attachment to the Government.” Id. at 556.
That is not all. As various appellate courts have noted, “[r]eligious minorities, political
dissenters, Native Americans, and persons of color were among the disfavored groups that
historical legislatures disarmed based on a perception that persons in those categories were
inherently dangerous or non-law-abiding.” Zherka v. Bondi, 140 F.4th 68, 85 (2d Cir. 2025),
cert. denied, 223 L. Ed. 2d 555 (2026); Watson, 171 F.4th at 1021 (same). To be sure, “this sad
tradition includes laws repugnant by today’s standards,” laws that would be struck down as
unconstitutional on other grounds. Watson, 171 F.4th at 1022; see also Zherka, 140 F.4th at 85

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(same). But “one can accept that the framers denied firearms to groups they thought to be
particularly dangerous (or unvirtuous, or irresponsible) without sharing their conclusions about
which groups qualify as such.” Blocher, supra, at 135. “To disregard [such laws] in favor of the
more reassuring laws disarming violent criminals risks, as Justice Scalia famously put it in
another context, ‘looking over a crowd and picking out your friends.’” Id. (quoting Antonin
Scalia, A Matter of Interpretation: Federal Courts and the Law 36 (1997)).
Although such laws are and were “abhorrent[,] . . . what is relevant to the Second
Amendment analysis is whether the categorical disarmament of individual members of those
groups for reasons other than demonstrated dangerousness was viewed as consistent with the
right. It was.” Fooks v. State, 337 A.3d 83, 107 (Md. 2025) (footnote omitted), cert. denied, 224
L. Ed. 2d 4 (2026). So “for this analysis their import cannot be ignored.” Watson, 171 F.4th at
1022.
Such historical analogues do not need to be “a ‘dead ringer’ or a ‘historical twin,’”
Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 30), to modern felon-in-possession laws. It
is enough that they are “‘relevantly similar’ to laws that our tradition is understood to permit,
‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”
Id. (alteration in original) (quoting Bruen, 597 U.S. at 29 & n.7). “Group disarmaments were
often based on similar concerns, as the ‘historical record suggests that legislatures traditionally
possessed discretion to disqualify categories of people from possessing firearms to address a
danger of misuse by those who deviated from legal norms, not merely to address a person’s
demonstrated propensity for violence.’” United States v. Dubois, 139 F.4th 887, 897 (11th Cir.
2025) (Pryor, J., concurring) (quoting United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir.
2024) (Colloton, C.J.)), cert. denied, 145 S. Ct. 2708 (2026).

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In sum, the historical evidence shows that the Commonwealth has satisfied its burden at
Step 2 of Bruen to justify disarming persons convicted of forgery, a felony punishable at the
founding by death and forfeiture of property. We do not reach whether other nonviolent felonies
that were not as severely punished in the Founding Era could justify disarmament.28
D. We do not reach whether Orange’s loss of firearm rights is permanent or temporary.
Our resolution of this appeal also makes it unnecessary to reach Orange’s claim that a
permanent restriction on her firearms rights is materially different from a temporary one. Orange
Reply 1, 6, 9. Notably, however, Orange has failed to establish that her loss of firearm rights is,
in fact, “permanent.”
In opposing certiorari in Second Amendment cases, the United States has explained that
the Attorney General has reinvigorated the process under 18 U.S.C. § 925(c) to restore firearm
rights to persons previously convicted of crimes punishable by incarceration for more than one
year. See, e.g., Brief for the United States in Opposition at 6-8, Zherka v. United States, No. 25-
269 (U.S. Nov. 2025).29 The United States insists that this process fully addresses any Second
Amendment concerns for persons whose convictions have resulted in the loss of firearm rights:
28 We also do not reach whether the automatic loss of firearm rights is a disproportionate
punishment under the Eighth Amendment for a nonviolent felony conviction. Compare
Montgomery v. Louisiana, 577 U.S. 190, 206 (2016) (“Protection against disproportionate
punishment is the central substantive guarantee of the Eighth Amendment and goes far beyond
the manner of determining a defendant’s sentence.”), with Cheripka v. Commonwealth, 78
Va. App. 480, 506 (2023) (declining “to engage in a proportionality review in cases that do not
involve life sentences without the possibility of parole”). Because Orange has never contended
that her loss of firearm rights upon her conviction of forgery violated the Eighth Amendment, we
do not consider that argument here.
29 The rights-restoration process had not been effective before because the Attorney
General had delegated the task of investigating applicants to the Bureau of Alcohol, Tobacco and
Firearms, and Congress had blocked funding for ATF to carry out those responsibilities. See
generally Focke v. Commonwealth, 77 Va. App. 366, 369-70 (2023). But the Attorney General
withdrew that delegation in March 2025 and has begun to review and grant applications to
restore firearm rights. See Withdrawing the Attorney General’s Delegation of Authority, 90 Fed.
Reg. 13,080 (Mar. 20, 2025); Granting of Relief; Federal Fire-Arms Privileges, 90 Fed. Reg.

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By providing a mechanism through which convicted felons can
regain their ability to possess firearms and can challenge any
ensuing denials of relief on an as-applied basis in court, upon a
record that covers the individual applicant’s circumstances, Section
925(c) addresses any constitutional concerns about the breadth and
duration of the restriction imposed by Section 922(g)(1).
Id. at 7 (emphasis added).30 The United States also contends that applying to the Attorney
General is “more workable . . . for restoring firearm rights than would a court-administered
regime of as-applied challenges.” Id. Federal courts too have begun to cite that mechanism to
show that “felon status does not necessarily mean permanent disarmament.” Watson, 171 F.4th
at 1025. Virginia also permits felons to petition for their firearm rights to be restored after first
having their civil rights restored by the Governor. See Code § 18.2-308.2(C).
Because the record is silent on any efforts by Orange to take advantage of those
mechanisms, however, we simply assume without deciding that her loss of firearm rights is
“permanent,” not temporary. We express no opinion about whether the ability of convicted
felons to apply to have their firearm rights restored alleviates Second Amendment concerns.
CONCLUSION
The trial court did not err in denying Orange’s motion to dismiss her felon-in-possession
indictment on Second Amendment grounds. The historical inquiry compelled by Bruen shows
that the founders who ratified the Second Amendment understood that forgery, though a
nonviolent crime, could be punished by death and forfeiture of all property. That punishment
17,835 (Apr. 29, 2025); Granting of Relief; Federal Fire-Arms Privileges, 91 Fed. Reg. 8532
(Feb. 23, 2026).
30 The United States has repeated that position multiple times. See, e.g., Brief for the
United States in Opposition at 6, Jackson v. United States, No. 24-6517 (U.S. Apr. 2025); Brief
for the United States in Opposition at 9, Vincent v. United States, No. 24-1155 (U.S. Aug. 2025).

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necessarily subsumed the loss of firearm rights, and disarmament is consistent with the purpose
of Founding Era laws punishing such serious but nonviolent felonies.
Affirmed.

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Causey, J., dissenting.
While the wisdom of Bruen1 may very well be something the Nation lives to regret,2 if
we lower courts are bound to apply it, we must apply it equally—not by cherry-picking historical
facts to support disarmament of certain, targeted communities. While I would never advocate for
firearms to be readily accessible to every person in every circumstance,3 we cannot allow for
categorical or status-based encroachments on civil liberties. Nor are we bound to do so. See
United States v. Hemani, 225 L. Ed. 2d 314, 322 (2026) (“[W]hen the government crosses the
line from permissible regulation into unconstitutional infringement, courts have a duty to say so
in the cases before them—no less in the Second Amendment context than in any other.” (citing
District of Columbia v. Heller, 554 U.S. 570, 606 (2008))).
The history and tradition of disarmament laws have focused on disarming only those
individuals who have proven themselves incapable of safely bearing a weapon. Without any
evidence that Orange presents such “individual markers of risk,” permanently barring her
possession of a shotgun violates her Second Amendment rights. Kanter v. Barr, 919 F.3d 437,
451 (7th Cir. 2019) (Barrett, J., dissenting).
1 N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
2 While Bruen is not the problem of this particular day, nothing in my dissent should be
construed to suggest that the Court’s 2022 decision is without its faults. See United States v.
Hemani, 225 L. Ed. 2d 314, 339 (2026) (Jackson, J., concurring) (“In a future case that squarely
presents the question, we should consider whether to retire the failed Bruen experiment and
return to an explicit assessment of Congress’s ends and means when deciding the
constitutionality of firearm restrictions.”); United States v. Rahimi, 602 U.S. 680, 706 (2024)
(Sotomayor, J., concurring) (emphasizing “Bruen’s myopic focus on history and tradition, which
fails to give full consideration to the real and present stakes of the problems facing our society
today”); Bruen, 597 U.S. at 102-03 (Breyer, J., dissenting) (“Although I agree that history can
often be a useful tool in determining the meaning and scope of constitutional provisions, I
believe the Court’s near-exclusive reliance on that single tool today goes much too far.”
(emphasis added)).
3 See generally Bruen, 597 U.S. at 83-102 (Breyer, J., dissenting) (detailing comparative
statistics of the United States’s gun violence epidemic).

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To say, as the majority does, that all persons convicted of nonviolent forgeries are
inherently dangerous is to live in a society devoid of second chances. Unwilling to accept that
principle, I respectfully dissent.
I. History and Tradition
Turning to the history and tradition of our nation, disarmament laws have intended to
keep firearms out of the hands of dangerous individuals. See United States v. Rahimi, 602 U.S.
680, 690 (2024); Hemani, 225 L. Ed. 2d at 330-31. At oral argument, the Commonwealth
conceded not only that Rebecca Sue Orange is not a dangerous individual but that the forgery of
a private document, for which she was convicted, is not a dangerous crime. See Oral Arg. 26:10
(“I agree that [forgery] does not indicate an underlying dangerous personality, but I think when
you have someone convicted of a felony they have demonstrated that they are willing to
disregard the commonwealth’s laws and we have many laws that regulate the use of firearms.”).
See also Oral Arg. 24:25-26:30 (full discussion of dangerousness standard). Though the
government carries the burden of showing the person being disarmed is dangerous, Hemani, 225
L. Ed. 2d at 332, the majority ignores the Commonwealth’s concession, arguing that Orange is
categorically dangerous on the sole basis of her previous felony conviction.
The majority asks whether a rule that disarms a person convicted of a Class 5 forgery
under Code § 18.2-172 is “consistent with the Nation’s historical tradition of firearm regulation.”
Identifying no actual disarmament laws in our nation’s history, the majority turns to a so-called
lesser-included-punishment theory, detailing a handful of English and Founding-era laws that
possibly allowed for the government to put to death those guilty of some forgeries. But the
majority opinion inappropriately analogizes to statutes that would today criminalize Class 4
forgeries of public documents, instead of analogizing to statutes that would have criminalized
Orange’s Class 5 forgery of private documents. And the majority fails to discuss important

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Founding-era statutes that analogize to forgery of a private document and did not call for the
death penalty, seemingly disregarding statutes that do not serve the policy preferences kept by
my colleagues.
A. Disarmament Laws in Virginia and Elsewhere
America’s history of disarmament laws, as the Supreme Court underscored in Rahimi,
suggests that, for new regulations to be upheld as constitutional, they must be limited to
disarming only dangerous individuals. See Rahimi, 602 U.S. at 694-98 (noting that the history
of “going armed” and “affray” laws disarming only those who “pose[] a clear threat of physical
violence to another”); Hemani, 225 L. Ed. 2d at 327 (noting that relevant historical analogues
protected the public from “categorically violent and unusually dangerous persons”). A survey of
the history of disarmament laws shows three types of dangerousness being regulated in the
history and tradition of the Second Amendment: (1) threats of “immediate personal violence,”
i.e., those crimes resulting in death, like murder and aggravated assault; (2) the danger posed by
“external threats,” i.e., foreign actors waging war; and (3) the danger posed by a tyrannical or
“unjust ruler.” Jamie G. McWilliam, A Classical Legal Interpretation of the Second Amendment,
28 Tex. Rev. L & Pol. 125, 151-58 (2023).4 Forgery of private documents falls outside of these
categories, as it threatens no physical harm and does not involve government interests or
otherwise shroud the government in conspiracy.
4 The majority cites multiple statutes that echo these three categories of dangerous crime,
rather glibly repackaging them as general forgeries. See 18 U.S.C. § 1546 (forgery related to
international terrorism); 5 Geo. 3 c.12, §§ 18-19 (Eng.) (Stamp Act of 1765). We must look to
the specific forgery of Rebecca Orange, a Class 5 forgery of private documents, not heightened
or extreme types of forgeries that today would never be charged at the state level, much less
classified as a Class 5 felony. See Range v. Att’y Gen. U.S. of Am., 69 F.4th 96, 104-05 (2023)
(noting the government cannot “analogize those [broad] groups to Range and his individual
circumstances” (emphasis added)).

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1. English Common Law
To start, it is worth noting that the Bruen Court weighed pre-ratification English common
law only as a tertiary consideration,5 noting that “English common-law practices and
understandings at any given time in history cannot be indiscriminately attributed to the Framers
of our own Constitution.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 35 (2022)
(emphasis added).6 The Court repeatedly highlighted the importance of the Founding era, see id.
at 21, 26 (emphasizing the “traditions of the American people”), and expressly weighed
Reconstruction as a “secondary” consideration due to the Fourteenth Amendment’s
incorporation, Heller, 554 U.S. at 614, 609-19.
Even to the extent we do consider English common law, the majority opinion notes that,
in 1776, Virginia’s Founders determined that “all statutes or acts of parliament made in aid of the
common law . . . shall be the rule of decision, and shall be considered in full force, until the same
shall be altered” by the General Assembly. However, in 1792, one year after ratification of the
5 The Supreme Court has not provided guidance on what we are to do if the English
common law is at odds with Founding and Reconstructionist history. An objective reading of
Bruen suggests that English common law is, at best, a tertiary consideration given the singular
analysis of the common law but a repeated focus on 1791 and 1868. See Bruen, 597 U.S. at 27
(“The regulatory challenges posed by firearms today are not always the same as those that
preoccupied the Founders in 1791 or the Reconstruction generation in 1868.”).
6 The Bruen Court emphasized that “not all history is created equal.” 597 U.S. at 34.
Citing Heller, 554 U.S. at 634-35, the Court noted,
“Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them.” The Second
Amendment was adopted in 1791; the Fourteenth in
1868. Historical evidence that long predates either date may not
illuminate the scope of the right if linguistic or legal conventions
changed in the intervening years. . . . As with historical evidence
generally, courts must be careful when assessing evidence
concerning English common-law rights.
Bruen, 597 U.S. at 34-35 (emphasis omitted) (quoting Heller, 554 U.S. at 634-35).

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Second Amendment, the General Assembly repealed the relevant portion of the ordinance that
adopted “all statutes or acts of parliament.” The majority does note that the pre-ratification law
was repealed but fails to consider the legal effects of that action, essentially ignoring the decision
of the General Assembly members one year after ratification.7
The majority’s other interpretations of the English common law substitute broad
assertions8 for the aggregate of the English’s firearms history, indiscriminately attributing
general claims of the typical onto our specific inquiry into disarmament laws. Had my
colleagues endeavored into English disarmament, they would have found that the common law
“allowed officers of the Crown broad powers to disarm English men on the basis of faith,
[socioeconomic] class, or perceived ‘dangerousness.’” Robert H. Churchill, Gun Regulation, the
Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second
Amendment, 25 L. & Hist. Rev. 139, 150 (2007) (emphasis added).
First, the bulk of English disarmament laws were adopted in an effort to subdue religious
and political uprisings in the face of violent insurrection and “armed conspiracy” following or
otherwise connected to the English Civil War.9 Joseph G. S. Greenlee, Disarming the
7 The General Assembly ratified the Bill of Rights on December 15, 1791. 1791 Va. Acts
37. Of the 185 delegates who served in the House in 1791, 103 served in the General Assembly
in 1792. Compare Burgesses and Delegates, House History (last visited May 16, 2024),
https://history.house.virginia.gov/members?session=88, with Burgesses and Delegates, House
History (last visited May 16, 2024), https://history.house.virginia.gov/members?session=89.
There seems to be no record of all 1791 or 1792 Senate members in attendance; however, we do
know that the founding Senate often acquiesced to the House, knowing the real power rested in
Virginia’s lower house. See, e.g., R. Beeman, The Old Dominion and the New Nation, 1788-
1801 33 & n.9 (1972).
8 See Tennessee v. Garner, 471 U.S. 1, 13 (1985) (“[A]t a time when virtually all felonies
were punishable by death.”); 4 William Blackstone, The Commentaries on the Laws of England
95 (1769) (noting the punishment for any felony as “may be superadded [with the death penalty],
according to the degree of guilt.”).
9 The 1650 law passed by Parliament following the beheading of Charles I instructed
commissioners to repress “all Conspiracies, Designs, Practises, secret and suspitious Meetings of

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Dangerous: The American Tradition of Firearm Prohibitions, 16 Drexel L. Rev. 1, 8-10, 14-15,
22-23 (2024). Insurrectionists were killing loyalists and setting fire to their homes, parading in
the streets armed, and plotting to kill the King of England—they were not nonviolent people
guilty of paper crimes, as the majority has suggested. Id. at 15-18. In fact, this violence is the
backdrop against which the English Bill of Rights was implemented. Id. at 22-24, 30; The
English Historical Review 620 (Reginald L. Poole ed., 1915) (noting the English Bill of Rights
passed “[f]or the securing the Peace of the Kingdome in this Time of Imminent Danger against
the Attempts and Trayterous Conspiracies of evill disposed Persons”); Joyce Lee Malcolm, To
Keep and Bear Arms: The Origins of an Anglo-American Right 42, 122 (1994) (similar). The
principles behind disarmament under the common law, then, were not to punish for the sake of
being non-law-abiding but to end violent rebellion.
And those few laws that were not an effort to target religious and political opponents
were passed to subdue dangerous people threatening the physical safety of the community. As
noted in Bruen, William Hawkins, in a 1716 treatise, wrote that “no wearing of Arms is within
the meaning of [the Statute of Northampton, upon which Blackstone’s writings were founded],
unless it be accompanied with such Circumstances as are apt to terrify the People.” 597 U.S. at
45 (citing 1 Pleas of the Crown 136). Hawkins clarified that “‘Persons of Quality’ were ‘in no
disaffected persons” by securing those whom “they finde to be especially active and dangerous.”
An Act For Setling of The Militia of The Commonwealth of England 931-32 (London, Edward
Husband & John Field 1650). Those commissioners were “authorized and required to disarm
and secure (by Imprisonment or otherwise) all Papists, and other ill-affected persons” who
demonstrated they were “against this present Parliament or against this present Government.”
Id. at 934. See also 8 Calendar of State Papers, Domestic Series, 1655, at 43 (London,
Longmass & Co. Trubner & Co. 1881); An Act for Ordering the Forces in the Several Counties
of this Kingdom, 14 Car. 2. c. 3, § 13. William Blackstone even acknowledged the disarmament
of Catholic insurrectionists, writing that such restrictions were necessary to “counteract” the
insurrectionists’ “dangerous . . . spirit,” which “foreigners who only judge from our statute-book
are not fully apprized of.” 4 William Blackstone, Commentaries on the Laws of England 54-57
(Oxford, The Clarendon Press 1769).

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Danger of Offending against this Statute by wearing common Weapons because, in those
circumstances, it would be clear that they had no ‘Intention to commit any Act of Violence or
Disturbance of the Peace.’” Id. (citing T. Barlow, The Justice of Peace 12 (1745)).
Lastly, as a practical approach to history, it seems unlikely that the Founders would smile
upon a court citing and transferring English history onto their intentions at the Founding, given
the nation had only just recovered from the ravages of the Revolutionary War. See Akhil Reed
Amar, The Bill of Rights: Creation and Reconstruction 46-47 (1998) (“In Locke’s influential
Second Treatise of Government, the people’s right to alter or abolish tyrannous government
invariably required a popular appeal to arms. To Americans in 1789, this was not merely
speculative theory. It was the lived experience of their age.”).
2. Colonial Disarmament
The majority points to no colonial history of disarmament. A deep dive uncovered only
disfavored laws enforced by the Crown against the colonists and one now-disfavored colonial
law in place before 1776.
The colonies were under the command of the English Crown and, in the years leading to
the war, the English tried to keep firearms out of the hands of the revolutionaries. See Greenlee,
supra, Disarming the Dangerous, 16 Drexel L. Rev. at 74-76. The colonists were distressed
about the impending disarmament. For instance, an officer from Mecklenburg County, Virginia
warned that “the frequent impressment of arms from the people has well nigh disarmed the
County. . . . The people hide their arms, and say they will risk their lives, rather than give up
what few remain.” See “An Act for the Better Supply of the Country with arms and
ammunition” (1684), William Waller Hening, Statutes at Large; Being a Collection of All the
Laws of Virginia, from the First Session of the Legislature, vol. 3, 13 (1820). “As a consequence
of this public resentment, colonial legislators approached the impressment of firearms with

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discernable wariness.” Robert H. Churchill, Gun Regulation, the Police Power, and the Right to
Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev.
139, 152 (2007). See Bruen, 597 U.S. at 45 (“And as that individual right matured, ‘by the time
of the founding,’ the right to keep and bear arms was ‘understood to be an individual right
protecting against both public and private violence.’” (citing Heller, 554 U.S. at 594)).
The one colonial10 disarmament law, oft-cited by Second Amendment scholars, is a
Virginia law that allowed for the disarmament of Catholics. But even when the Commonwealth
disarmed those unwilling to swear an oath to “the Protestant succession,” Virginia still exempted
“such necessary weapons as shall be allowed him by order of the justices of the peace at their
court, for the defense of his house and person.” See 1 George I, stat. 2, c. 13 (1714); “An Act for
Disarming Papists and Reputed Papists, refusing to take the oaths to the Government” (1756),
Hening, supra, Statutes at Large, vol. 7, 35-36. This Virginia history suggests that even those
seen as outsiders to the “law-abiding” body politic were allowed weapons like shotguns for self-
defense in the home.11
The colonists were so firmly against disarmament that even indentured servants, who
some scholars have considered the most analogous to present-day probationers and parolees,
10 In that it was adopted and enforced by a colonial government body, made up of
colonists, as opposed to a law enforced by the Crown.
11 See C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L.P.P.
695, 707 (2009) (noting the Founding states also “avoided regulation of long guns” as they were
seen as less dangerous than pistols, due to their inability to facilitate concealed carry). A 1925
compilation of then-current laws found that “no State banned possession of long guns based on a
prior conviction . . . and that no State with a constitutional arms right had enacted such a law
until 1925.” Id. at 708 (citing Handbook of the National Conference of Commissioners on
Uniform State Laws and Proceedings of the Thirty‐Fifth Annual Meeting 862-63 (1925)). “And
it appears that no state court case considered any law of this type under a constitutional
protection of arms until 1939, a century and a half after the Second Amendment’s adoption.” Id.

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were not permanently disarmed in any of the thirteen colonies.12 See, e.g., Greenlee, supra,
Disarming the Dangerous, 16 Drexel L. Rev. at 30-32 (comparing indentured servants to those
under state supervision after convictions for nonviolent felonies). Some laws did temporarily
exempt indentured servants from militia duty but others, conversely, required them to serve.13
And many indentured servants were allowed, if not required, to bear arms once their servitude
was over. See, e.g., 2 Selective Serv. Sys., Backgrounds of Selective Service: Military
Obligation: The American Tradition pt. 4, at 14 (1947) (Georgia Enactments: 1755) (noting
“every Servant in this province, who Shall be Freed or discharged from his Service shall be
allowed Six Months time after such discharge to provide himself with the Arms and Furniture”);
id. pt. 6, at 138 (Massachusetts Enactments: 1721) (requiring “three months’ time . . . after his
time is out”); id. pt. 7, at 51 (New Hampshire Enactments: 1718) (requiring “[t]hree Months time
. . . after his time is out”); id. pt. 13, at 10 (South Carolina Enactments: 1703) (requiring “within
the time and space of twelve months after he or they shall be free and discharged”).
3. Founding Era Disarmament
Founding-era disarmament laws focused on keeping firearms only out of the hands of
dangerous persons. The Supreme Court has suggested that the Founding era spans from 1776
12 See, e.g., 2 Selective Serv. Sys., Backgrounds of Selective Service: Military Obligation:
The American Tradition pt. 3, at 2, 27 (1947) (Delaware Enactments: 1741); id. pt. 4, at 20, 94,
132 (Georgia Enactments: 1755, 1773, and 1778); id. pt. 5, at 108 (Maryland Enactments: 1756);
id. pt. 6, at 21 (Massachusetts Enactments: 1643); id. pt. 13, at 32, 45-46, 70 (South Carolina
Enactments: 1721, 1747, and 1778); id. pt. 9, at 257 (New York Enactments: 1775); id. pt. 11, at
77 (Pennsylvania Enactments: 1780); id. pt. 14, at 84, 89, 94, 107, 115, 156, 216, 300, 327, 362,
435 (Virginia Enactments: 1723, 1727, 1738, 1748, 1755, 1775, 1777, and 1784).
13 See, e.g., 2 Selective Serv. Sys., supra, pt. 2, at 101 (Connecticut Enactments: 1715);
id. pt. 4, at 111 (Georgia Enactments: 1773); id. pt. 5, at 8 (Maryland Enactments: 1654); id. pt.
6, at 47 (Massachusetts Enactments: 1647); id. pt. 7, at 38 (New Hampshire Enactments: 1697);
id. pt. 8, at 51 (New Jersey Enactments: 1777); id. pt. 10, at 48 (North Carolina Enactments:
1774); id. pt. 11, at 10 (Pennsylvania Enactments: 1676); id. pt. 13, at 75 (South Carolina
Enactments: 1778); id. pt. 14, at 14 (Virginia Enactments: 1777).

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when our nation began to 1800, if not 1820. See generally Hemani, 225 L. Ed. 2d at 324
(analyzing laws “at the founding and in the decades following it,” including statutes from 1812,
1829, 1838, and 1851); Wolford v. Lopez, 225 L. Ed. 2d 494, 512 (2026) (analogizing to gun
rights statutes enacted in 1833, 1842, and 1852); Rahimi, 602 U.S. at 690-95 (analyzing laws
from 1783 to 1800); Bruen, 597 U.S. at 37-55 (analyzing laws from 1786 to 1795); Heller, 554
U.S. at 601-04 (analyzing state constitutions from 1791 to 1820). Both this dissent and the
majority have failed to identify any statute adopted within this timeline that permanently
disarmed convicted criminals, as analyzed below.
a. Proposals During Ratification
First, several proposals submitted during the ratification debates are worthwhile to our
analysis, as they highlight the dangerousness principles considered by the Founders and
underlying their understanding of the Second Amendment. Founders in Pennsylvania, New
Hampshire, and Massachusetts proposed amendments to the Constitution that recognized an
individual right to keep arms and limited that right only insofar as an individual was engaged in
affray, rebellion, or terrorizing another.
New Hampshire’s proposed language, “Congress shall never disarm any Citizen unless
such are or have been in Actual Rebellion,” supplied the broadest protection of the three
proposals, suggesting the right could be restricted only after a person committed an act of
levying war. 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of
the Federal Constitution 326 (2d ed. 1891) (emphasis added). See also Greenlee, supra,
Disarming the Dangerous, 16 Drexel L. Rev. at 74-76.
The Massachusetts proposal recognized the power to disarm violent people engaged in
riot, affray, and other breaches of peace. Samuel Adams proposed to the Massachusetts ratifying
convention that “the said Constitution be never construed to authorize Congress . . . to prevent

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the people of the United States, who are peaceable citizens, from keeping their own arms.” Neil
H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 181-82 (New
York: Oxford University Press, 1997) (emphasis added); 2 Bernard Schwartz, The Bill of Rights:
A Documentary History 675, 681 (1971). See also Greenlee, supra, 16 Drexel L. Rev. at 74-
76.14 At the time, “peaceable” was defined as “[f]ree from war; free from tumult”; “[n]ot
violent; not bloody”; “[n]ot quarrelsome; not turbulent.” 1 Samuel Johnson, A Dictionary of the
English Language (5th ed. 1773).
In December 1787, after Pennsylvania ratified the Constitution, 21 opponents signed the
“Dissent of the Minority of the Convention” that gave “the people . . . a right to bear arms for the
defense 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.” See Greenlee, supra, Disarming
the Dangerous, 16 Drexel L. Rev. at 74. At first glance, the Pennsylvania Dissent was narrower
than the other two proposals. However, the only dissenter who discussed the “crimes
committed” provision suggested that the dissenters were worried about insurrectionists, not
nonviolent criminals. Id. at 75.15
14 Samuel Adams later withdrew his motion for the amendment, as he submitted it for
consideration on the very day the convention was scheduled to vote on ratifying the constitution.
Greenlee, supra, Dismissing the Dangerous, 16 Drexel L. Rev. at 77 (“Because his last-minute
proposals ‘alarmed’ both federalists and antifederalists, Adams ‘perceived the mischief he had
made [and] withdrew his motion.’” (quoting “Letter from Jeremy Belknap to Ebenezer Hazard”
(Feb. 10, 1788), in 7 The Documentary History of the Ratification of the Constitution 1583, 1584
(John P. Kaminski et al. eds. 2001)). The antifederalists resubmitted his proposal, but even
Adams, worried it would tank the possibility of ratification, voted against it. Id. at 77-78.
15 The discussion came from Swedish immigrant turned Pennsylvania preacher, Nicholas
Collin, writing under the pseudonym Foreign Spectator. Stephen P. Halbrook, The Right of the
People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment,
26 Val. U. L. Rev. 131, 149-50 (1991) (citing Foreign Spectator, No. XI, Fed. Gazette, Nov. 28,
1788).

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Since disarmament had traditionally been based on dangerousness
to that point, it is more reasonable to read “crimes committed” as
covering violent crimes, and “real danger of public injury” as
providing a catchall that covers violent acts not covered by the
criminal law—which at the time was not nearly as expansive as
today’s laws.
Id.
Some believed that Adams’s proposed amendment in Massachusetts was based on the
Pennsylvania Dissent of the Minority. Id. at 78. In a letter, Jeremy Belknap of Boston, noted
that Adams had a copy of the Dissent of the Minority and that his amendments “proposed to
guard against” the “very things” the Minority “objected to.” Id. (quoting “Letter from Jeremy
Belknap to Ebenezer Hazard” (Feb. 10, 1788), in 7 The Documentary History of the Ratification
of the Constitution 1583, 1583-84 (John P. Kaminski et al. eds. 2001)). For this reason, scholars
do not believe the Founders interpreted the Pennsylvania dissent as disarming nonviolent
offenders—at least not unanimously. Id. at 78.
These proposals suggest that the Founders considered the right to bear arms as excluding
only those guilty of violent crimes. While none made it into the constitution, the proposals are
important because even “disputes regarding the lawfulness of [firearm] prohibitions” should be
considered in determining a regulation’s constitutionality, as they provide insight into the public
discourse around the Second Amendment. Bruen, 597 U.S. at 30 (emphasis added). And given
the dangerousness standard underscored in these pre-ratification proposals, it appears that at least
a plurality of the Founders would not have considered a forgery like Orange’s enough for her to
be disarmed at the Founding.
b. Disarmament Laws At or Around Ratification
The disarmament laws in force at and shortly after 1791 echo these pre-ratification
proposals. Only four state constitutions had Second Amendment analogues in 1791:
Massachusetts, North Carolina, Pennsylvania, and Vermont—and none of these provisions

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excluded persons convicted of a crime. See Heller, 554 U.S. at 601-03. Further, almost all of
these firearm regulations, as discussed in Bruen, contended with violent or dangerous
individuals, leading the Court to say, “A by-now-familiar thread runs through these three
statutes: They prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people.”
597 U.S. at 50-51.
For example, a Massachusetts statute from 1795 commanded justices of the peace to
arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go
armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass.
Acts and Laws ch. 2, at 436, in Laws of the Commonwealth of Massachusetts (emphasis added).
And an 1801 Tennessee statute likewise required any person who would “publicly ride or go
armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other
dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, any violation
of law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn.
Acts, at 260-261 (emphases added).
As the Bruen Court noted, disarmament was also based on an individual’s dangerousness
in the common law. 597 U.S. at 51. For instance, the Tennessee attorney general acted in vain
when he “charged a defendant with the common-law offense of affray,” on the theory that a man
had “‘arm[ed] himself with dangerous and unusual weapons, in such a manner as will naturally
cause terror to the people’ . . . with force and arms being arrayed in a warlike manner.” Id.
(emphasis added) (quoting Simpson v. State, 13 Tenn. 356, 358 (1833)). The Tennessee
Supreme Court quashed the indictment, partly because it “did not think that it could attribute to
the mere carrying of arms ‘a necessarily consequent operation as terror to the people.’” Id.
This principle was built upon throughout the 19th century, creating a tradition of
disarming dangerous individuals. The Tennessee Supreme Court echoed its previous holding in

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1840. See Aymette v. the State, 21 Tenn. 154, 158-60 (1840) (“The citizens have the unqualified
right to keep the weapon . . . . But the right to bear arms is not of that unqualified character. . . .
it does not follow, that they may be borne by an individual, merely to terrify the people, or for
purposes of private assassination.” (emphases added)). Similarly to the Tennessee Supreme
Court, in interpreting the common-law offense of affray, the North Carolina Supreme Court
found “‘that the carrying of a gun’ for a lawful purpose ‘per se constitutes no offence.’” Bruen,
597 U.S. at 52 (quoting State v. Huntly, 25 N. C. 418, 421-22 (1843) (per curiam)). Instead,
“only carrying for a ‘wicked purpose’ with a ‘mischievous result . . . constitute[d a] crime.’” Id.
at 52-53 (internal citations omitted).16
c. Virginia-Specific Disarmament Laws At or Around Ratification
Aside from the laws detailing the ins and outs of Virginia’s militia,17 there were few
firearm regulations in Virginia before the turn of the nineteenth century. See Everett A. Martin
Jr. & Nicholas W. Dudley, A History of Firearms Regulation in Virginia Until 1873, 71 Va.
Law. 22, 22 (2022).
16 Other state courts later followed suit, recognizing that the common law did not punish
the carrying of deadly weapons per se, but only the carrying of such weapons “for the purpose of
an affray, and in such manner as to strike terror to the people.” O’Neill v. State, 16 Ala. 65, 67
(1849) (emphases added). See also State v. Hogan, 58 N.E. 572, 575 (Ohio 1900) (noting the
Second Amendment right “was never intended as a warrant for vicious persons to carry weapons
with which to terrorize others”).
17 When the Virginia convention voted for ratification, it voted on a declaration asking
Congress to adopt the following into the Bill of Rights: “That the people have a right to keep and
bear arms: that a well regulated militia composed of the body of the people trained to arms, is the
proper, natural and safe defence of a free State.” 10 The Documentary History of the
Ratification of the Constitution of Virginia 1553 (1993); Martin & Dudley, A History of
Firearms Regulation in Virginia Until 1873, 71 Va. Law. 22, 22, 23 (2022).

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Between 1776 and 1873,18 there were only three statutes regulating the right to bear arms.
The first was the adoption of a version of the English Statute of Northampton, which outlawed
“com[ing] before the justices of any court, or either of their ministers of justice, doing their
office, with force and arms, on pain . . . in affray of the peace.”19 The Virginia statute, like the
Statute of Northampton, modified “going or riding armed” with “in terror of the county.” 1 Rev.
Code (1819), c. 140, at 554; 1786 Va. Acts ch. 49. By 1791, the Virginia statute provided that
“no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in
other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of
Virginia, ch. 21, at 33 (1794) (emphasis added). The Founding-era history of disarmament in
Virginia, then, begins with a law focused on dangerousness as the standard, not on nonviolent
crime.
Of note, the majority attempts to analogize to this “going armed” law. But as discussed,
the disarmament laws in Virginia and elsewhere were focused on disarming dangerous
individuals who were engaged in affray, threatened the immediate physical safety of others, or
armed themselves in furtherance of rebellion or insurrection. The Virginia going armed law falls
squarely into that category. To compare carrying a loaded gun into a public building, in front of
a public official—which is classified as a violent offense under Codes §§ 17.1-805(C) and
18 Before 1776, in Virginia, there were zero laws regulating the right of white men to bear
firearms. See Martin & Dudley, supra, A History of Firearms Regulation in Virginia Until 1873,
71 Va. Law. at 23. A number of statutes disarmed Black and Native Virginians and prohibited
the trade of arms with those groups. See id. Because such race-based restrictions would be
facially unconstitutional in 2026, a discussion of them would be gratuitous, if not deeply
offensive to the rule of law.
19 See also 2 Edw. 3, c. 3 (1328). In Bruen, interpreting the Statute of Northampton, the
Court relied on an English decision and treatise to interpret this statute as a prohibition on
wearing arms with the intent to terrorize people. See 597 U.S. at 32, 34-37. This interpretation
is in line with the dangerousness standard in Rahimi. The Court also noted that, because the
statute was “ancient,” it was essentially “obsolete.” Id. I mention it now only because the
majority appears to rely on it and its progeny.

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18.2-283, -283.1, and -283.2—to a nonviolent forgery is, frankly, to make a comparison without
merit.
The second Virginia statute, a general prohibition on affray, banned “[a]ll assemblages of
persons armed with fire-arms for purposes of drill or parade.” 1 Rev. Code (1819) c. III, §§ 7, 8,
at 423. This second statute echoed the first, attempting to prevent dangerous uses of firearms in
the event of insurrectionist activity. Id. The third disarmament statute, codified by the General
Assembly in 1838, prohibited concealed carry of “any pistol, dirk, bowie knife, or any other
weapon of the like kind a weapon.” 1838 Acts, p. 76, c. 101, § 1.20
These three laws cover Virginia’s historic tradition of firearm regulation from the time of
the Founding and shortly afterwards. Crucially, possession of a firearm by a person convicted of
a felony—the law under which Orange was convicted and now appeals—was not adopted in
Virginia until 1979, long after the Founding. See 1979 Acts ch. 474. The majority only briefly
acknowledges this point and does so within a footnote.
4. Post-Ratification Founding-Era Disarmament Laws
Between 1789 and 1820, nine States adopted Second Amendment analogues into their state
constitutions, all of which emphasized the importance of firearms in protecting oneself.21 See
Rahimi, 602 U.S. at 728-29 (Kavanaugh, J., concurring) (“Madison, Marshall, and Scalia made
clear that courts should look to post-ratification history as well as pre-ratification history to
20 Between the Founding era and Reconstruction, “the overwhelming focus of gun
regulation in the States (there was none from the Federal Government) was on carrying
weapons, particularly through laws against carrying them concealed . . . . States avoided the
more extreme approach of banning possession.” Marshall, supra, Why Can’t Martha Stewart
Have A Gun?, 32 Harv. J.L.P.P. at 707. The States also “avoided regulation of long guns.” Id.
21 Four of the states—Kentucky, Ohio, Indiana, and Missouri—conferred the right “to
bear arms in defence of themselves and the State.” Heller, 554 U.S. at 602. Mississippi,
Connecticut, and Alabama constitutions conferred the “right to bear arms in defence of himself
and the State.” Id. at 602. Tennessee and Maine constitutions conferred the right in furtherance
of the “common defence.” Id. at 602-03.

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interpret vague constitutional text.”).22 None of the nine constitutions made an exception for
those convicted of nonviolent felonies like Orange. Id. The absence of an exception is crucial
because seven of those constitutions did explicitly disenfranchise people convicted of certain
crimes from the right to vote; these states contemplated which civil disabilities to impose on
those with nonviolent felonies and declined to include disarmament. Cf. City of Richmond v.
VEPCO, 292 Va. 70, 75 (2016) (“[Courts] assume that the General Assembly chose, with care,
the words it used. . . .” (first alteration in original) (citations omitted)).
The majority spills much ink rationalizing why its 1791 analysis is the only one with
merit. And yet, its argument is supported only by two of the eleven federal circuits that provided
relevant precedent before Hemani.23 Those two decisions, like the majority’s narrow limitations
22 “For more than two centuries—from the early 1800s to this case—this Court has . . .
repeatedly employed post-ratification history to determine the meaning of vague constitutional
text.” Rahimi, 602 U.S. at 728-29. Reliance on post-ratification history has spanned “all
domains of constitutional law, every era of the nation’s history, and Justices of every stripe.” Id.
at 728 (citing Trump v. Anderson, 601 U.S. 100, 113-115 (2024) (per curiam)); Moore v.
Harper, 600 U.S. 1, 22, 32-34 (2023); Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535-36,
540-41 (2022); Bruen, 597 U.S. at 35-37, 50-70; City of Austin v. Reagan Nat’l Advert. of Austin,
LLC, 596 U.S. 61, 75 (2022); Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474-77 (2022);
PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 494-97, 508 (2021); TransUnion LLC v.
Ramirez, 594 U.S. 413, 424-25, 432-34 (2021); Torres v. Madrid, 592 U.S. 306, 314 (2021);
Trump v. Mazars USA, LLP, 591 U.S. 848, 858-62 (2020); Chiafalo v. Washington, 591 U.S.
578, 592-97 (2020); American Legion v. American Humanist Assn., 588 U.S. 19, 29, 58-66
(2019); Zivotofsky v. Kerry, 576 U.S. 1, 15-17, 23-28 (2015); Town of Greece v. Galloway, 572
U.S. 565, 575-79 (2014); District of Columbia v. Heller, 554 U.S. 570, 605-19, 626-28 (2008);
Crawford v. Washington, 541 U.S. 36, 47-50 (2004); Apprendi v. New Jersey, 530 U.S. 466,
481-83 (2000); Medina v. California, 505 U.S. 437, 445-48 (1992); Holland v. Illinois, 493 U.S.
474, 481-82 (1990); Marsh v. Chambers, 463 U.S. 783, 786-92 (1983); Dames & Moore v.
Regan, 453 U.S. 654, 678-82 (1981); Walz v. Tax Comm’n of City of New York, 397 U.S. 664,
676-80 (1970); Powell v. McCormack, 395 U.S. 486, 522, 541-47 (1969); United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 321-29 (1936); The Pocket Veto Case, 279 U.S. 655,
688-91 (1929); Myers v. United States, 272 U.S. 52, 155-58 (1926); United States v. Midwest Oil
Co., 236 U.S. 459, 469-75 (1915); Marshall Field & Co. v. Clark, 143 U.S. 649, 683-92
(1892); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 18 How. 272,
279-80 (1856); McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 400-01 (1819)).
23 Aside from relying on the two federal circuit decisions, the majority asserts academic
viewpoints or otherwise tangentially related theories to resolve in its favor the debate between

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on what it means to be a Founding era law, would have precluded most of the Hemani Court’s
analysis. In the 39-page decision, the Court cited only seven statutes that were enacted at or
before 1791, out of at least thirty statutes cited with years of enactment. Hemani, 225 L. Ed. 2d
at 325-26, 327 n.4, 328 n.5. The majority does not grapple with the Bruen, Rahimi, Hemani, and
Wolford Courts’ own expanded boundaries of the Founding era. Instead, it is forced to argue a
staunch 1791 end date; if forgery laws enacted as early as 1796 are proper analogues, the
Commonwealth cannot prevail in this appeal.
All in all, the states and the federal government all repealed laws imposing capital
punishment for forgery in the 1790s through 1852. Within the timeframe suggested by the
Supreme Court and lower courts, more than 60 years elapsed—three generations—with no
history or tradition of imposing the death penalty for forgery before the Fourteenth Amendment
was ratified.
5. Reconstructionist Disarmament
The Supreme Court has emphasized the importance of Reconstruction-era analysis in the
history and tradition test. Even if “secondary” to Founding-era principles, the Second
Amendment is only applicable to the states by way of its incorporation into the Fourteenth
Amendment, which demands some attention to the history of Reconstructionist firearm
regulations. Bruen, 597 U.S. at 37.24
1791 and 1868 statutes—a debate the Supreme Court has not yet resolved. This Court, instead,
should have merely done what the Supreme Court did in Hemani, looking to the history and
tradition of the nation in a Founding era that spanned into the 1850s.
24 See also Bruen, 597 U.S. at 60 (“[W]e think a short review of the public discourse
surrounding Reconstruction is useful in demonstrating how public carry for self-defense
remained a central component of the protection that the Fourteenth Amendment secured for all
citizens.”).

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Throughout Reconstruction, disarmament laws continued to implement the
dangerousness standard set forth during the Founding era. General D. E. Sickles issued an 1866
decree stating that, in South Carolina, “The constitutional rights of all loyal and well-disposed
inhabitants to bear arms will not be infringed. . . . And no disorderly person, vagrant, or
disturber of the peace, shall be allowed to bear arms.” Bruen, 597 U.S. at 62-63 (emphasis
added) (first citing Cong. Globe, 39th Cong., 1st Sess., at 908-09; and then citing McDonald v.
City of Chicago, 561 U.S. 742, 847-48 (2010)). And, as the Bruen Court highlighted, a
Freedmen’s Bureau circular noted that “[a]ny person, white or [B]lack, may be disarmed if
convicted of making an improper or dangerous use of weapons,” even though “no military or
civil officer has the right or authority to disarm any class of people, thereby placing them at the
mercy of others.” Id. at 63 (emphasis added).25
Additionally, Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14
of the act stated: “[T]he right . . . to have full and equal benefit of all laws and proceedings
concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of
estate, real and personal, including the constitutional right to bear arms, shall be secured to and
enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”
25 [I]n some parts of [South Carolina,] armed parties are, without
proper authority, engaged in seizing all fire-arms found in the
hands of the freedmen. Such conduct is in plain and direct
violation of their personal rights as guaranteed by the Constitution
of the United States, which declares that “the right of the people to
keep and bear arms shall not be infringed.” The freedmen of South
Carolina have shown by their peaceful and orderly conduct that
they can safely be trusted with fire-arms, and they need them to
kill game for subsistence, and to protect their crops from
destruction by birds and animals.
Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, at 229 (1866)
(Proposed Circular of Brigadier General R. Saxton) (emphases added).

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14 Stat. 176-77. See also Michelle Goodwin, The Thirteenth Amendment: Modern Slavery,
Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 900, 928-33 (2019).
In Wolford, the Court acknowledged this valuable Reconstructionist sentiment. The
Court highlighted “[t]he Republican Party Platforms of 1856 and 1860,” writing, “the right to
keep and bear arms was crucially important for vulnerable [B]lack[ people] during this period.
And this was well-understood by the Republicans in Congress who were responsible for drafting,
approving, and securing the ratification of the Fourteenth Amendment.” Wolford, 225 L. Ed. 2d
at 516-17.
During the Reconstruction era, up to the turn of the twentieth century, there was no
history nor tradition of disarming nonviolent felons.26 The majority neglects to bring
Reconstruction—or any law after 1791—into its analysis, going so far as dismissing a 1796 law
as outside of the Founding era.27 By ignoring the Reconstructionist period, the majority
succumbs to the very error that Justice Scalia warned against: “looking over a crowd and picking
out your friends.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 36
(1997).
6. The Debate Over the End of the Founding Era
There is no need to resolve the ongoing, unsettled debate of how to weigh Founding- and
Reconstructionist-era statutes in the case before us today. See supra (“Bruen, Rahimi, and
Hemani did not require the Court to address what happens if Founding Era evidence conflicts
26 In fact, the opposite might be closer to the truth. See Marshall, supra, Why Can’t
Martha Stewart Have A Gun?, 32 Harv. J.L.P.P. at 710 (“The closest thing to a case considering
a felon disability” in the 18th and 19th centuries was a Texas case invalidating an 1878
regulation “to the extent that it required forfeiting the offending pistol upon a conviction.” (citing
Jennings v. State, 5 Tex. Ct. App. 298, 300 (1878))).
27 Of the 185 delegates in the General Assembly in 1791, 115 of them also served in
1796.

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with that from the Reconstruction Era.”). In including late-1790s and 1800s evidence as part of
our Founding-era analysis, I merely apply the settled boundaries of the Founding era repeatedly
established by the Supreme Court. See Hemani, 225 L. Ed. 2d at 324-26 (analyzing laws “at the
founding and in the decades following it,” including statutes from 1812, 1829, 1838, and 1851);
Wolford, 225 L. Ed. 2d at 512 (analogizing to gun rights statutes enacted in 1833, 1842, and
1852); Rahimi, 602 U.S. at 690-95 (analyzing laws from 1783 to 1800); Bruen, 597 U.S. at 37-55
(analyzing laws from 1786 to 1795); Heller, 554 U.S. at 601-04 (analyzing state constitutions
from 1791 to 1820). It is wholly unnecessary to wade into the Founding- versus Reconstruction-
era debate when only the Supreme Court can settle the score for us.28 Utilizing Founding era
evidence alone, Orange can and should prevail. The Founding-era historical record, within the
Court’s own timeframe, shows that no state punished forgery with death by 1800—much less by
1852.
28 Even if the debate were ours to settle, more circuits have taken the view opposite to the
majority’s, acknowledging that statutes from both 1791 and 1868 are relevant. See, e.g.,
Antonyuk v. James, 120 F.4th 941, 973-74 (2d Cir. 2024) (“While we recognize that evidence
nearest to 1791 can differ from that nearest to 1868, such discrepancy does not mean that the
right to keep and bear arms was calcified in either 1791 or 1868. Rather, 1791 and 1868 are both
fertile ground, and the adjacent and intervening periods are likewise places in the historical
record to seek evidence of our national tradition of firearms regulation.”); Range, 69 F.4th at 112
(Ambro, J., concurring) (noting that if the relevant period extends beyond the Founding era,
“then Founding-era regulations remain instructive unless contradicted by something specific in
the Reconstruction-era” (emphasis added)); Drummond v. Robinson Twp., 9 F.4th 217, 227 (3d
Cir. 2021) (“[T]he question is if the Second and Fourteenth Amendments’ ratifiers approved
regulations barring training with common weapons in areas where firearms practice was
otherwise permitted.” (emphasis added)); Kipke v. Moore, 165 F.4th 194, 207 (4th Cir. 2026)
(“[W]e look beyond the Founding Era to determine whether our national tradition of firearm
regulation supports a government’s restriction today.”); Ezell v. City of Chicago, 651 F.3d 684,
705-06 (7th Cir. 2011) (explaining that a “wider historical lens” is required for local and state
regulations, then considering evidence from both the Founding and Reconstruction).

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7. Modern Disarmament
The majority highlights that plenty of “felon-in-possession” laws were enacted in the
twentieth century, first in 1938 and later in 1961. Insofar as these well-past-ratification statutes
could be considered relevant, it is worth mentioning that the 1938 crime bill specifically
differentiated between “persons convicted of crimes of violence” and those convicted of
nonviolent crimes like forgery.29 It was not until the 1961 crime bill was passed that nonviolent
crimes were encompassed into the felon-in-possession regulation. See 18 U.S.C. § 921(a)(20)
(2006); C. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and
Judicial Ipse Dixit, 60 Hastings L. J. 1371, 1374-79 (2009) (concluding that “prohibitions on the
possession of firearms by felons and the mentally ill” have their origins in the 20th century).
And even the 1961 law exempted some business‐related crimes. See 18 U.S.C. § 921(a)(20)
(2006). Whether twentieth century law supports the history and tradition analysis seems to be a
question the Supreme Court has answered in the negative—but even the twentieth century legal
tradition is distinguishable from the present question concerning Orange.
8. Lesser Included Punishments
With no laws disarming individuals convicted of forgery to point to, the majority is
forced to rely on a so-called lesser-included punishment theory—that if a person convicted of
forgery could be put to death for their crimes, then surely the Founders would take no issue with
29 A 1922 report from the American Bar Association’s Committee on Law Enforcement
differentiated between “crimes of violence against the person and property,” like murder,
burglary, and robbery, which “will seldom be attempted unless the criminal is armed,” and
“crimes which indicate the dishonesty of the people” like “larceny, extortion, counterfeiting,
forgery, fraud, and other crimes of swindling.” For a Better Enforcement of the Law, 8 A.B.A. J.
588, 590 (1922).

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disarming them.30 As a result, the majority opinion neglects to properly weigh Orange’s
conviction under the dangerousness test set forward in Rahimi.
In applying the history and tradition test, the majority gives the Commonwealth a
decisive assist; most of the historical laws cited were supplied by this court. The majority’s is an
odd approach to holding the government to its burden of justifying a prohibition on one’s
exercise of an individually held constitutional right. See Bruen, 597 U.S. at 25, 34 (“Only if [the
Government can] carry that burden can [it] show that the pre-existing right codified in the
Second Amendment, and made applicable to the States through the Fourteenth, does not protect
petitioners’ proposed course of conduct.” (emphasis added)); Hemani, 225 L. Ed. 2d at 324-25
(“We decide cases ‘based on the historical record’ and arguments ‘compiled by the parties’
before us.” (quoting Bruen, 597 U.S. at 26 n.6)).
Many of the laws that my colleagues have plucked from obscurity are legally distinct
from the Class 5 forgery law, codified at Code § 18.2-172, for which Orange was convicted.
And even to the extent that the majority scrapes together a paltry collection of (arguably)
30 Fundamentally, our analysis should be focused on our nation’s tradition of firearm
regulations, not broadly on its historical punishments of those convicted of crime. The Supreme
Court, in Bruen, made a clear judgment that Founding-era views on firearms are to be considered
as part of our country’s tradition; but the justices have not made similar judgments for
punishments under the Eighth Amendment. This distinction suggests that Founding-era
punishments may simply reflect outdated, even barbarous moral judgments, that have, needfully,
advanced. Importantly, the Court has never suggested that a history-based test should apply in
interpreting the “cruel and unusual” clause of the Eighth Amendment. See, e.g., Miller v.
Alabama, 567 U.S. 460 (2012).
The greater-includes-the-lesser argument is the only one that the majority can utilize in
the case before us because historical firearm regulations—in earnest the only relevant regulations
lower courts should turn to—enveloped only dangerous individuals, which Orange is not (at the
Commonwealth’s own concession). See Oral Arg. 24:25-26:30.
The Commonwealth also expressed wariness during oral argument of a lesser-included-
punishment theory, noting that the theory could be used to “wipe away any number of rights in
the Bill of Rights.” See Oral Arg. at 17:06-27. Instead, the Commonwealth suggested that this
Court focus on the loss of property as punishment for crime, and whether firearms were taken as
part of that punishment. See Oral Arg. at 18:15-18:40.

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relevant capital punishment laws, they are a far cry from the “history and tradition” that the
Commonwealth bears the burden of proving. The modern forgery statute Orange was convicted
under covers both forgery and fraudulent inducement of a signature from someone else. Under
Bruen, the Commonwealth bore the burden to prove that there was a historical analogue to
disarm Orange. In looking at the statutes the majority uses as historical analogues, they all cover
traditional forgery, i.e., the defendant signing someone else’s name. The Commonwealth bears
the burden to prove the details of Orange’s forgery to be able to rely on these analogues to
establish the right to disarm her. If, for instance, her forgery was for tricking a third party into
signing a document, the historic forgery statutes would not apply, and the relevant analogue
would instead be statutes covering fraud at the time.
Article 1 of Chapter 6 of the Virginia Code contains our Commonwealth’s four felony
forgery statutes, each differentiated by the types of writings that a defendant has forged. See
Code §§ 18.2-168 through -173.31 Three statutes cover various forms of public forgery: Code
§ 18.2-168 covers every “public record, or certificate, return, or attestation. . . .” Code
§ 18.2-169 covers forgeries of the seal of the Commonwealth, court, public office, body politic,
or corporation in Virginia. Code § 18.2-170 covers each active “coin, note or bill” of both the
Commonwealth and any banking institutions therein. These three public forgeries are all Class 4
felonies, see Code §§ 18.2-168 to -170, punishable by not less than two years and not more than
ten years in prison. See Code § 18.2-10(d).
31 The remaining forgery statutes in Article 1, Chapter 6 relating to forgery, Code §§
18.2-172.1 and -172.2, are misdemeanor forgery statutes. Code § 18.2-171 and Code § 18.2-173
are felony statutes that relate to the usage of particular tools used to perpetuate, or in the
furtherance of, the four different kinds of forgeries.

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Orange, on the other hand, was convicted of a Class 5 forgery under Code § 18.2-172.32
Code § 18.2-172 has been explicitly recognized by the Virigina Supreme Court and this Court as
a private forgery.33 See Campbell v. Commonwealth, 13 Va. App. 33, 38 (1993) (“It is readily
apparent that violation of any of the forgery statutes other than Code § 18.2-172 is an offense
against the public in general or, as in this case, the government itself.” (emphasis added));
Gibson v. Commonwealth, No. 0130-95-3, slip op. at 2, 1996 Va. App. LEXIS 296, at *2 (Apr.
23, 1996) (referring to Code § 18.2-172 as “the private record statute”); Oral Arg. at 23:58 (the
Commonwealth conceding that Orange’s forgery “wasn’t forgery of a public record”).
The distinction between public and private documents is crucial, as the General
Assembly has decided to classify the forgery of public documents as a Class 4 felony and forgery
of private documents as a Class 5 felony. Class 4 felonies allow for a sentencing judge to
impose up to a $100,000 fine for which Class 5 felonies do not allow, as well as an additional
one year in prison for which Class 5 felonies do not allow. Compare Code § 18.2-10(d), with
Code § 18.2-10(e). And with a Class 5 felony, the jury can use its discretion to override the
mandatory minimum, instead sentencing the defendant to up to twelve months in jail and/or a
$2,500 fine. See Code § 18.2-10(e). Clearly, this disparity in sentencing shows that the General
32 Here, it is undisputed that Orange’s conviction for forgery was a nonviolent crime. See
Code § 17.1-805(C) (delineating all violent crimes in Virginia, among which forgery is not
listed); 18 U.S.C.A. § 924(e) (classifying violent felonies as those crimes involving use or threat
of physical force).
33 Such private documents include time sheets, hospital discharge forms, falsified
doctor’s notes, and patients’ medical charts. See, e.g., Barr v. Commonwealth, No. 1150-01-3,
slip op. 3-5, 2002 Va. App. LEXIS 218, at *4-6 (Apr. 9, 2002) (time sheets); Pullin v.
Commonwealth, No. 2758-07-2, slip op. at 1-2, 2009 Va. App. LEXIS 139, at *2 (Mar. 24, 2009)
(hospital discharge form); Lee v. Commonwealth, No. 1271-09-4, slip op. at 2-3, 2010 Va. App.
LEXIS 181, at *3 (May 4, 2010) (falsified doctor’s notes); Beshah v. Commonwealth, 60 Va.
App. 161 (2012) (medical chart).

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Assembly treats forgery of public and private documents as separate and distinct. The difference
of $97,5000, or between prison versus jail, should not be dismissed.
Ignoring this public-private distinction, the majority cites numerous public record
forgeries, which carried the death penalty, and next to zero private record forgeries, which did
not carry the death penalty. I will now discuss each in turn.
a. Death Penalty for Forgery Before Ratification
The majority next points to a handful of English common law rules that implemented the
death penalty for forgery of public documents—each a lackluster analogue for Orange’s Class 5
forgery conviction.34 First, the majority cites a 1711 law35 for forgery of the South Sea
Company’s stock. This law is better analogized to Code § 18.2-169, which covers forgeries of
the seal of any corporation in Virginia. Code § 18.2-169 is also the most appropriate historical
analogue for the 1722 law36 cited by the majority, that criminalized forgery of annuities, stocks,
or dividends. And the 1729 law37 outlawing forgery of promissory notes and financial
instruments is analogous, with some surprising specificity, to Code § 18.2-170, which regulates
the forgery of “any note or bill of a banking company.”
The majority next points to a handful of colonial Virginia’s laws against forgery of public
documents that are, at most, analogous to the Class 4 forgeries—not to Orange’s Class 5 forgery
34 I will not rehash the critiques of the Bruen Court, discussed above, wherein the Justices
expressed some wariness about pre-1776 laws under the British command. I will simply
reiterate my own suspicion, given our country’s nascency and the budding revolt against that
Crown—especially considering that our revolution was based in large part on the oppressive
nature of English law. We must look to the principles underlying the history and tradition of our
nation during that time period, not those of the government from which we declared
independence.
35 See 8 Geo. I ch. 22, § 1 (1711) (Eng.).
36 See 9 Geo. I ch. 12, § 4 (1722) (Eng.).
37 2 Geo. II ch. 25, § 1 (1729) (Eng.).

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conviction. See 1777 Va. Acts 63 (ch. 2, § 18) (certificates of money for war debts); 1777 Va.
Acts 51 (ch. 5, § 4) (certificates of money borrowed from the Commonwealth), § 9 (loan
certificates and treasury notes); 1777 Va. Acts 55 (ch. 11, § 1) (certain government warrants and
drafts); 1783 Va. Acts 198 (ch. 10, § 38) (forgery of a certificate of a justice of the peace
concerning tobacco receipt).
The 1777 act provided: “if any person within this commonwealth shall forge or
counterfeit, alter or erase, any certificate of money . . ., every person so offending, and being
lawfully convicted, shall forfeit his whole estate, real and personal, . . . and shall be obliged to
serve on board some armed vessel . . . without wages, not exceeding seven years.” 1777 Va.
Acts 51 (ch. 5, §§ 4, 9). The sections of the act criminalizing the forgery of a certificate of
money and loan certificate would likely fall under Code § 18.2-170, as a forgery of a “coin, note,
or bill” or certificate by a banking institution. The section criminalizing the forgery of
government warrants would likely fall under Code § 18.2-168’s forgery of public records.
Orange’s Class 5 felony conviction for forgery of a private document is a less serious felony than
the 1777 act—and still the death penalty was not attached to those Class 4 forgery analogues.
The only death penalty imposition in 1777 for a forgery crime came from the General
Assembly’s May session: the forgery of certificates of federal money. See 1777 Va. Acts 50
(May Session, ch. 4, § 5). Forgery of a certificate of money would likely be Class 4 felonies
under Code § 18.2-170, as a forgery of a “coin, note, or bill” or certificate by a banking
institution. It should not, then, serve as a historical analogue to Code § 18.2-172.38
38 There were also a handful of pre-1789 Acts that the majority did not cite, but I will
mention for the sake of executing an exhaustive historical survey. Virginia punished with death:
the forgery of currency of the continental congress (directly comparable to Code § 18.2-170), see
1776 Va. Acts 38 (ch. 10); the forgery of the public seal (directly comparable to Code
§ 18.2-169), see 1779 Va. Acts 98 (ch. 13); forgery of treasury notes and warrants signed by the
governor, state auditor, and other enumerated government or military officials (comparable to
Code § 18.2-168), see 1779 Va. Acts 102-03 (ch. 24), 1783 Va. Acts 188 (ch. 8, § 14); forgery of

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b. Death Penalty for Forgery Under Virginia’s 1789 Act39
I turn now, as the majority does, to a Founding-era Virginia law that specifically provided
the death penalty for forgery of public documents. The majority highlighted several public-
documents statutes that imposed the death penalty, but my colleagues failed to identify one
important historical analogue within this act. For private letters, in the very same statute, the
General Assembly punished those who
falsely and deceitfully obtain or get into his or their hands or
possession, any money, goods or chattels of any other person or
persons, by colour and means of any such false token, or
counterfeit letter, made in any other man’s name as is aforesaid;
every such person and persons so offending . . . shall have and
suffer such correction and punishment, by imprisonment . . . not
exceeding one year, and setting upon the pillory . . . .
1789 Va. Acts 11. This appears to be the only Virginia statute that is truly analogous to the
forgery of private documents under Code § 18.2-172.40
the stamp of the state inspector of flour (comparable to Code § 18.2-169), see 1782 Va. Acts 170
(ch. 52, § 6); forgery of the stamp of the state inspector of tobacco (comparable to Code
§ 18.2-169), see 1783 Va. Acts 198 (ch. 10, § 35); forgery of certificates of money (directly
comparable to Code § 18.2-170), see 1784 Va. Acts 19 (ch. 69, § 1). But the same rule applies.
None of these death-penalty-imposing statutes are analogous to Orange’s Class 5 forgery of a
private document.
39 While we consider the entire history of the nation, the Second Amendment is only
applicable to the states by way of its incorporation in the Fourteenth Amendment. That Virginia
chose to ratify the Bill of Rights necessitates the import of the history of Virginia law. This is
especially true because, at the Founding, felonies were treated differently state by state.
According to James Madison, “felony” was “a term of loose signification even in the common
law of England, but more so in the States where [t]he meaning of the term . . . [was] not precisely
the same in any two of the States; and varie[d] in each with every revision of its criminal laws.”
The Federalist No. 42, at 228 (J. R. Pole ed., 2005).
40 This statute shows, as Hening acknowledges, that Virginia’s Founders recognized the
traditional common law rule that lesser “forgeries” were either not classified as forgeries at all or
were misdemeanors. See William Heller Hening, The New Virginia Justice 510 (1795) (“As for
writings of an inferior nature as private letters, and such like, the counterfeiting of them is not
properly forgery, therefore in some cases, it may be more safe to prosecute such offenders for a
misdemeanor as cheats.” (emphasis added)); White v. United States, 300 Va. 269, 274 n. 2
(2021) (referring to Hening as “one of Virginia’s leading legal scholars after the revolution” and

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Even assuming that Orange’s forgery of private documents could have somehow fallen
under the 1789 Act regulating public forgeries, the majority concedes that the Virginia state
legislators repealed the death penalty for forgery in 1796. See 1796 Va. Acts 4 (ch. 2, § 9). And
yet, the majority failed to factor the repeal into its analysis. By hanging their hat on the lapse of
five years after the Founding, my colleagues unnecessarily limit the history and tradition test
beyond what the Supreme Court mandated. See Bruen, 597 U.S. at 20 (noting an “examination
of a variety of legal and other sources to determine the public understanding of a legal text in the
period after its enactment or ratification’ was ‘a critical tool of constitutional interpretation’”).
Courts must reject “rigid” or forced approaches to historic analogues. See Rahimi, 602 U.S. at
703-04 (Sotomayor, J., concurring) (noting courts applying Bruen should “conside[r] whether the
challenged regulation is consistent with the principles that underpin our regulatory tradition”
(alteration in original)); id. at 705 (Sotomayor, J., concurring) (“Bruen was ‘not meant to suggest
a law trapped in amber.’”).
In fact, the Bruen Court took history beyond the Founding era, considering gun
regulations that spanned the 19th century. See 597 U.S. at 50-70. The Bruen majority even cited
two surety laws from 1795 and 1801 to support its history and tradition analysis. Id. at 49-50.
Rahimi built onto this history and tradition test by relying on that same 1795 surety law, as well
as the development of surety laws from “the 1700s and early 1800s.” 602 U.S. at 681. The
Heller Court’s analysis of the Founding era included history from “the 18th century or the first
two decades of the 19th.” 554 U.S. at 584, 602. The Heller Court then considered pre- and post-
noting the importance that Thomas Jefferson placed in Hening’s “New Virginia Justice,” as well
as the work’s contemporaneous public significance); Powell v. Commonwealth, 52 Va. 822, 825
(1854) (noting the distinction between public and private forgery was made for the purpose of
“discriminating between those writings which might affect the rights of others whereof forgery
might be committed, and other writings by which, whether false or genuine, the pecuniary
interests of others could not be affected,” such that an element of fraud must also be proven).

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Civil War laws as a secondary but “instructive” consideration. Id. at 614, 609-19. A law was in
place in 1791; the General Assembly repealed that law in 1796. A five-year period between
mid-1791 and 1796 does not “a Nation’s history and tradition” make. A faithful application of
the Bruen test does not miss the forest for the trees.41
Further, if we must consider the repealed 1789 law, it is still distinguishable from forgery
of private documents, for which Orange was convicted. Compare 1789 Va. Acts 13 (ch. 19),
with Code § 18.2-172. The majority asserts that, because it punished forgery of deeds and wills
with death, the 1789 law regulated private documents enough for it to be a historical analogue to
Code § 18.2-172. However, deeds, wills, and money orders have long been considered public
records in Virginia. See Campbell, 246 Va. at 181-82 (noting “any will, testament or codicil; any
deed, bond, writing or note [concerning property]” in a long list of public records applicable
under Code § 18.2-168 (citing Code ch. 154, § 4 (1819))).42 The Campbell Court examined
41 By 1796, Virginia did not even put to death those who forged coins, bills, or other
money of the bank of the United States. The General Assembly’s decision to lessen the
punishment of these forgery statutes is significant, especially the statute regulating coins,
moneys, and bills, as the forgery of these documents was seemingly the most severely punished
forgery crime across the nation. See 1796 Va. Acts 5 (ch. 2, § 9). The trend in the 1790s to
remove the death penalty displays a trend in public discourse surrounding the death penalty for
forgery crimes at large, though no state ever imposed the death penalty for private documents.
42 The majority asserts that Campbell makes no such public-private distinction. But it
does. In Campbell, the Virginia Supreme Court analyzed the 1819 codification of the forgery
statutes we have in place now. In 1819, the statute enumerated a list of public records and then,
after significant historical analysis, differentiated those public records from “other writing[s],
[forged] to the prejudice of another’s right.” 246 Va. at 182. The Court found that “the
descriptive phrase ‘to the prejudice of another’s right’ appears only in relation to ‘other
writings.’” Id. As a result, the Court wrote, “We think that the purpose of the 1819 Act was to
codify the English common law and to preserve its distinctions between forgery of public
records and forgery of private documents. In our view, the language ‘to the prejudice of
another’s right’ modifies only writings other than those specifically listed by name.” Id.
(emphasis added). As a result, “harm or prejudice to the right of another person has never been
and is not now an element of the crime of forgery of public records in this Commonwealth.” Id.
at 184. The writings listed as public records included deeds and wills expressly. Id. While I
agree with my colleagues that the discussion of prejudice, the main issue in Campbell, is

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English common law and Virginia historical statutes, in interpreting the 1819 law, and expressly
rejected the majority’s current argument that wills and deeds are private documents in the
context of forgery.43 All in all, a survey of the historical statutes clearly indicates that Virginia’s
Founders would not have imposed the death penalty for forgery of private documents.
c. Death Penalty for Forgery Under Virginia’s 1792 Act
The majority next incorrectly claims that the “General Assembly enacted a law
condemning anyone who forged a tobacco certificate to ‘suffer death.’” 1792 Va. Acts ch. 18,
§ 41.44 However, under Section 41 of the cited statute, a person who forged such a certificate
was to “suffer as in case of willful and corrupt perjury.”45 Id. See also 1792 Va. Acts 76,
https://heinonline.org/HOL/P?h=hein.ssl/ssva0180&i=64. The “perjury” language under Section
41 is different from the punishment for stealing tobacco in Section 40, immediately preceding
irrelevant to our holding, the Campbell Court’s understanding of the history, as well as the
acknowledgment of the public-private distinction, directly informs today’s inquiry.
43 Although the majority is interpreting a statute from 1819, which is on the outer bounds
of the “Founding era,” the Virginia Supreme Court’s analysis is still informative to—if not
binding on—our decision today, as the 1819 statute became Virginia’s current Code § 18.2-168.
Not to mention the fact that historical discussion therein shows important trends in Virginia’s
history and tradition. See Adams v. Cowan, 160 Va. 1, 9 (1933) (“It is said that this was a
dictum. Grant that it is so; it was the dictum of a distinguished judge, concurred in by the entire
court, and is entitled to much respect.” (citing Kent v. Kent, 106 Va. 199, 203 (1906))).
44 The majority did not, but for the sake of completeness, I will note that the 1792
General Assembly also put to death anyone who forged the notes and checks of a certain bank.
1792 Va. Acts 107 (ch. 78, § 22). This statute is clearly a better analogue to Code § 18.2-170,
for forgery of banking notes, than it is for forgery of private documents.
45 The punishment for perjury, at the Founding and under the common law, was not
death. Perjury in Virginia during this time period was “adjudged to pay a fine not exceeding one
hundred pounds, and to suffer imprisonment by the space of six months,” as well as the inability
to serve on a jury or testify in court. See 1789 Va. Acts 16. Even the English abolished the
death penalty for perjury in 1563. See 5 Eliz., c. 9; Charles Viner, General Abridgment of Law
and Equity, Alphabetically Digested under Proper Titles; with Notes and References to the
Whole, 309 (2d ed. 1791-1795) (describing the punishment of death for perjury in the medieval
times to corporeal punishment in the 1400s and 1500s to a “fine and ransom, and never to bear
testimony” after 1563).

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Section 41. Section 40 required anyone “convicted by due course of law” to “be adjudged a
felon” and to “suffer death as in case of felony, without benefit of clergy.” Id. That these two
statutes are in the same chapter, one after another, and have different penalties implies that the
General Assembly did not want for those convicted of forgery to be put to death. See Bragg Hill
Corp. v. City of Fredericksburg, 297 Va. 566, 584 (2019) (noting courts “presume that every part
of a statute has some effect, and [] will not consider any portion meaningless unless absolutely
necessary” (alteration in original) (quoting Logan v. City Council, 275 Va. 483, 493, 659
(2008))).
d. Death Penalty for Horse Stealing Under 1794 Act
Lastly, the majority makes a comparison to Virginia’s punishment of horse theft, which
the Fifth Circuit in Diaz found to be the “closest colonial-era analogue to vehicle theft.” United
States v. Diaz, 116 F.4th 458, 468 (5th Cir. 2024) (emphasis added) (deciding whether theft of a
vehicle was a dangerous crime for which the defendant could be disarmed). However, the
history of horse theft is well beyond the scope of our inquiry of forgery of private documents.
See Range v. Att’y Gen. U.S. of Am., 124 F.4th 218, 231 (3d Cir. 2024) (noting that the inquiry
into whether “the Founding-era practice of punishing some nonviolent crimes with death” is
analogous to “the particular (and distinct) punishment at issue here . . .” (emphasis added));
United States v. Williams, 113 F.4th 637, 660 (6th Cir. 2024) (“The dangerousness determination
will be fact-specific, depending on the unique circumstances of the individual defendant.”).46
46 The majority believes all forgery laws are to be treated equally, citing to the “historic
twin” language from Rahimi. 602 U.S. at 701. While this is obviously a helpful rule for
ambiguous statutes, or those contemporary statutes that might not have been anticipated by the
Founders, when a law regulating a particular crime was existing in the Founding era almost
exactly as it is today, criminalizing the same conduct, surely there is a need to honor the
Founding traditions surrounding that conduct.
In Rahimi, the court compared historic “going armed” disarmament laws to the
contemporary “going armed” disarmament law in Texas. The regulation was the same,
criminalizing the same gun-related conduct. Rahimi, 602 U.S. at 697-99. In the historical law

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Additionally, under Code § 17.1-805(C), robbery, breaking and entering, and some trespass
crimes are all classified as violent crimes, while paper crimes like forgery are classified as
nonviolent crimes. While historical analogues need not be “twins,” they must be “analogous
enough to pass constitutional muster.” Bruen, 597 U.S. at 30.
e. Death Penalty for Forgery in Other States
Though it cited a great many Founding era statutes, the majority has failed to find a
historical analogue justifying the disarmament of Orange. In 1791, the United States was
comprised of thirteen states. Only two of these states arguably allowed for the execution of a
person convicted of forgery of documents not directly related to the government—and the
available evidence indicates that none of them actually carried out an execution because the
defendants committed a forgery of a private document. The majority claims, citing Bucklew v.
Precythe, 587 U.S. 119, 129 (2019), that “death was ‘the standard penalty for all serious crimes’
at the time of the founding.” But, as detailed below, forgery for private documents was not
considered a “serious” crime. The practice of the Founding generation, as well as the statutes
regulating forgery, do not support the majority’s broad contention.
cited, violent individuals using guns to terrorize others were disarmed; this is an exact analogue
to the criminal behavior for which Mr. Rahimi was convicted: threatening at gunpoint his
intimate partner and being involved in five different shootings. Id. at 687. The Court then noted,
“the penalty—another relevant aspect of the burden—also fits within the regulatory tradition.
The going armed laws provided for imprisonment, and if imprisonment was permissible to
respond to the use of guns to threaten the physical safety of others, then the lesser restriction of
temporary disarmament that Section 922(g)(8) imposes is also permissible.” Id. at 682
(emphasis added).
Though the majority, in the present case, seems to have read Rahimi as “blessing
disarmament as a lesser punishment generally, the [Rahimi] Court did not do that. Instead, it
authorized temporary disarmament as a sufficient analogue to historic temporary imprisonment
only to ‘respond to the use of guns to threaten the physical safety of others.’” Range, 124 F.4th
at 231 (emphasis added) (quoting Rahimi, 602 U.S. at 699). Orange was convicted of forgery of
a private document; this kind of conduct existed in the Founding era, and many states regulated
it. Therefore, we must look to lesser-included-punishments of forgery of private documents
only.

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The majority first cites a 1792 forgery law from Georgia that punishes forgeries of a long
list of public documents and monies—all of which are encompassed in Code § 18.2-168 (public
record, certificate, return, or attestation), Code § 18.2-169 (seal of the Commonwealth, court,
public office, body politic, or corporation), and Code § 18.2-170 (coin, note, bill, or bank note).47
Under this statute, like Virginia, Georgia also authorized the death penalty for those guilty of
forgeries of “any deed, will, testament bond, writing obligatory, bill of exchange, promissory
note, or order for money or goods.” See 1792 Ga. Acts 35. The majority claims that the
promissory note, deeds, and will documents could be classified as private documents under Code
§ 18.2-172. However, a promissory note, as a promise-to-pay between a debtor and the bank, is
analogous to Code § 18.2-170 (coin, note, bill, or bank note).48 And as discussed above, deeds
and wills have long been considered public records in Virginia. See Campbell, 246 Va. at
181-82 (citing Code ch. 154, § 4 (1819)).49 All in all, because of Campbell, it is, in the
47 For the sake of completeness, although the majority does not cite it, I will note that in a
1773 Georgia statute, the death penalty was imposed for counterfeiting paper money and for bills
of credit. Robert Watkins & George Watkins, Digest of the Laws of the State of Georgia from Its
First Establishment as a British Province down to the Year 1798, Inclusive, and the Principal
Acts of 1799 (1800), at 181, 341. This, of course, would today be regulated under Code
§ 18.2-170, Virginia’s public record forgery statute regarding currency, and would not operate as
a strong historical analogue to forgery of a private document.
48 The majority claims that Powell, 52 Va. at 829, controls our inquiry, as the Virginia
Supreme Court decided that the forgery of a promissory note between two private parties fell
under the predecessor of Code § 18.2-172. However, nothing in Powell changes our analysis.
The defendant there was convicted of signing a false name on the back of a promissory note
between him and a private party that sold him a bill of goods. This kind of private promise-to-
pay is distinguishable from the historical laws cited by the majority that put to death those
convicted of forging promissory notes to which the United States is a party (given its jurisdiction
over the national bank). These laws are more analogous to Code § 18.2-170 (coin, note, bill, or
bank note), as discussed throughout this dissent.
Also, while the Court affirmed the conviction under Code 18.2-168’s predecessor statute,
it does not appear to have discussed any argument related to whether promissory notes were
appropriately classified under that statute.
49 Again, Campbell differentiated those public records, including deeds and wills, from
“other writing[s], [forged] to the prejudice of another’s right.” 246 Va. at 182. The Court wrote,

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majority’s best case, unclear whether that Georgia act could be considered a historical analogue
for forgery of private documents. But for the sake of argument, we will assume the majority is
correct that it could be.
The majority fails to note that the Georgia Founders did not impose the death penalty for
a forgery actually analogous to Code § 18.2-169. Georgia punished the “alter[ation] or eras[ure]
[of] the stamp or receipt of any [tobacco] inspector” with “six months imprisonment,” a stint in
the pillory, and “a fine of one hundred pounds.” 1791 Ga. Acts 25-26. And it punished the
forgery of a receipt for a claim to entitlement to tobacco shipment “as in a case of wilful[l] and
corrupt perjury or forgery.” Id. In Georgia, the punishment for perjury was “such pains and
penalties as are inflicted by the laws of England in cases of this nature.” 1760 Ga. Acts 83
(§ 15).50
Moving on to the next attempt by the majority to show a history and tradition of capital
punishment for forgery of private documents: Maryland. A 1778 law, passed thirteen years
before ratification, punished with death only the forgeries of certain certificates issued by the
“We think that the purpose of the 1819 Act was to codify the English common law and to
preserve its distinctions between forgery of public records and forgery of private documents.”
Id. (emphasis added). As a result, as acknowledged by the majority, “harm or prejudice to the
right of another person has never been and is not now an element of the crime of forgery of
public records in this Commonwealth.” Id. at 184.
50 The English abolished the death penalty for perjury in 1563, distancing its judicial
courts from disfavored ecclesiastical courts. See 5 Eliz., c. 9. See Michael D. Gordon, The
Perjury Statute of 1563: A Case History of Confusion, 124 Proceedings of the American
Philosophical Society 438, 439, 450 (1980) (“Perjury was to be punished by a ‘fine’ of £10; this
was the penalty for subornation in 32 Henry VIII c. 9, which was increased by 5 Elizabeth c. 9.
In addition, the offender, as in the Perjury Statute, was to be publicly displayed as a perjurer, he
would not be allowed to give testimony in any subsequent proceedings, and he would have to
give satisfaction to whomever his perjury had injured.”); Charles Viner, General Abridgment of
Law and Equity, Alphabetically Digested under Proper Titles; with Notes and References to the
Whole, 309 (2d ed. 1791-1795) (describing the punishment of death for perjury in the medieval
times to corporeal punishment in the 1400s and 1500s to a “fine and ransom, and never to bear
testimony” after 1563).

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treasurer (i.e., bills of credit). See 1778 Md. Acts 17 (ch. 17). As such, the best historical
analogue would likely be within Code § 18.2-170 (forgeries of coin, note, bill, or certificate of a
banking institution) or Code § 18.2-169 (forgery of the seal of a corporation). This statute is one
of five types of forgeries that Maryland elected to punish with death in laws passed between
1776 and 1780. The other four statutes criminalized forgeries of: (1) government-issued “bills of
credit” (i.e., currency); (2) “certificates, bills or notes of the continental loan office”; (3) U.S.
lottery tickets; and (4) bills of credit. Herty & Maryland, Digest of the Laws of Maryland, Being
an Abridgment, Alphabetically Arranged, of All the Public Acts of Assembly Now in Force, and
of General Use (1799), at 255-56. All five of these forgeries are analogous to Code § 18.2-168
(currency), Code § 18.2-169 (public records), or Code § 18.2-170 (seal of the government or
corporation). The majority failed to identify a Maryland statute punishing with death the forgery
of a private document.
Further, after trending away from the death penalty for several years, by 1790, Maryland
appears to have entered a period in which even public forgeries were not punished with death.
See 1790 Md. Laws (ch. 5) (punishing the forgery and counterfeiting of bank notes with a
punishment chosen by a court “so as the same do not extend to death, or more than seven years
servitude”); 1799 Md. Acts (ch. 75) (punishing forgery of numerous documents including “any
deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for payment of
money, or delivery of goods . . . or other valuable articles” with “such punishment as shall be
adjudged by said court, so as the same do not extend to death, or more than seven years
servitude” (emphasis added)).51
51 See also 1784 Md. Laws (ch. 79) (punishing the forgery or counterfeiting of “any
register, clearance, certificate or permit, granted by any naval officer” with a fine “not exceeding
five hundred pounds current money,” imprisonment “not exceeding twelve months,” or the
infliction of “corporal punishment not exceeding thirty-nine lashes”); 1789 Md. Laws (ch. 266)
(punishing the “forg[ery] or counterfeit[ing]” of any “manifest or note of any inspector” under

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The majority next cites the 1791 forgery laws of New Hampshire. In New Hampshire,
the state punished forgery of certain public securities with death, analogous to the forgery of
bank notes under Code § 18.2-170, or a corporation’s seal under Code § 18.2-169. See Act of
Feb. 8, 1791, § 13, reprinted in Laws of the State of New Hampshire 243, 246 (1792). New
Hampshire punished forgery of all other documents (“other thing[s] whatever”) with a stint in
the pillory, imprisonment not exceeding three years, and a fine.52 See Act of Feb. 8, 1791, § 14,
reprinted in Laws of the State of New Hampshire, supra, at 246. No person guilty of the forgery
of a private document was subject to death in the New Hampshire statutes herein identified.
The majority then turns to New Jersey. The singular statute cited by the majority was
adopted because “the enemies of the United States have adopted the mean and infamous practice
of counterfeiting the Bills of Credit emitted and made current by the Honorable Congress for the
Purpose of carrying on the present just and unavoidable War with Great Britain.” Peter Wilson,
Acts of the General Assembly of the State of New-Jersey (1784), at 136-37. As a result, a person
who counterfeited those bills of credit could be punished with death. Id. This statute is also
analogous to Code § 18.2-168 (coin, note, bill, or bank note), a Class 4 forgery.
Other New Jersey statutes, not cited by the majority, also imposed the death penalty at
the time of the Founding, but only for forgery of public documents. A 1776 law mandated
capital punishment if an individual “counterfeit[ted] or alter[ed] any of the aforesaid Bills of
the relevant act with being “publicly whipped, not exceeding thirty-nine lashes, or fined in any
sum not exceeding one hundred pounds, or shall be sentenced to hard labour for any term not
exceeding seven years . . . in the discretion of the . . . court”); 1793 Md. Laws (ch. 35) (punishing
the forgery or counterfeiting of certain bank notes or checks with “such punish[ment] as if he or
they had been adjudged guilty of stealing, or taking by robbery, goods of the like value with the
money due on such bank note or check”).
52 See also N.H. General Assembly, June, September and December Sessions p. 393
(punishing the counterfeiting of a certain “seal or stamp” with the “forfeit[ure] and pay[ment]
[of] the sum of twenty pounds”).

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Credit, [and] by this Act made a legal Tender . . . .” Wilson, supra, at 2-3.53 The state passed
similar laws in 1780 and 1781. See id. at 129-30, 184. These statutes, criminalizing the forgery
of currency are analogous to Code § 18.2-168 (coin, note, bill, or bank note) or Code § 18.2-170
(seal of the government or corporation)—not to forgery of a private document.54 Put simply,
none of the New Jersey statutes punished with death any historical analogues to Code
§ 18.2-172, the forgery of private documents.
Finally, it bears noting that, by the 1790s, New Jersey, like Maryland, appears to have
turned completely away from the use of the death penalty, even for non-analogous, public
forgery crimes. See Wilson, supra, at 239 (punishing forgery of “inventories” of damages
submitted under a statute creating reparations system for people who suffered harm due to the
Revolutionary War with “the same Pains and Penalties are by Law inflicted upon Persons guilty
of willful and corrupt perjury”—not death55); 1796 N.J. Acts 92 (classifying the forgery and
counterfeiting of numerous documents including “[any] record, or other authentic matter of a
public nature, charter, letters-patent, deed, lease, writing sealed, will, testament, annuity, bond,
53 This law was supplemented in 1799, but the language of the bill was unchanged. See
Wilson, supra, at 100.
54 Similarly, a 1777 New Jersey law to “prevent forging the Tickets of the United States
Lottery” was “punished with death.” Wilson, supra, at 7-8. This statute appears analogous to
Code § 18.2-170 (seal of the government or corporation), as forging the lottery would require the
forging of an official emblem used to authenticate public documents. Nonetheless, the lottery is
certainly not a private document, given the U.S. government operated the lottery in 1777 (and
still does, in Virginia, today). A 1779 New Jersey law, criminalizing the forgery of a
“certificate” or “warrant” to obtain government benefits supporting injured military men was
punished with “Punishments inflicted by Law on common and incorrigible Cheats” and made to
pay restitution. Wilson, supra, at 86-93. Further, a 1782 New Jersey law criminalized and
punished with death anyone guilty of forgery of notes issued by the National Bank, a clear
analogue to Code § 18.2-168 (coin, note, bill, or bank note). Wilson, supra, at 262. And a 1789
New Jersey law punished forging “any certificate, indent, or other public security of the United
States” with death. 1789 N.J. Act. 647.
55 In 1781, in New Jersey, if a person was guilty of perjury, they were “committed to the
[jail].” 1753 N.J. Acts 68-69 (ch. 124, § 8); 1778 N.J. Acts 98 (ch. 38, § 3).

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bill, writing obligatory, bankbill or note, check, draught, bill of exchange, promissory note . . .
warrant, order, or request for the payment of money” as a “high misdemeanor” punishable by
“fine or solitary imprisonment at hard labor” of fewer than “ten years”); 1797 N.J. Acts i-vi
(characterizing the counterfeiting or forging of stamps and marks for “vellum, parchment, or
paper” as a “high misdemeanor,” to be punished by a “fine[] . . . not exceeding one thousand
dollars,” and a term of imprisonment “not exceeding seven years”).
Turning to New York, the majority next cites a statute to which the death penalty
attached. However, this statute—as well as all other New York statutes punishing forgery with
death—criminalized forgeries of public documents. And only one of them had the death penalty
attached. See 1784-85 N.Y. Acts 168 (ch. 88) (dealing with “public certificates of the United
States” and “gold or silver coins,” i.e., coins, government notes, bills, or bank notes analogous to
Code § 18.2-168).56 New York also had two forgery statutes criminalizing the forgery of brand
marks that were punishable with a fine only. See 1784 N.Y. Acts 70 (ch. 35); 1784 N.Y. Acts
666-67 (ch. 40).
By 1795, the evidence shows, New York was reclassifying crimes previously punished
with death with non-capital punishments. See 1795 N.Y. Acts 594-95 (punishing the forgery or
counterfeiting of lottery tickets, formerly punished with death, with ”confinement in prison
during [one’s] natural life”); 1798 N.Y. Acts 252-53 (punishing the forgery of certificates or
indorsements related to the recordation of deeds with ”imprisonment for life in the State prison
there to be kept at hard labor, or in solitude”). Ultimately, the majority points to no forgery
statute in New York that put to death those who forged private documents.
56 The following New York statutes, not cited by the majority, also imposed the death
penalty for public documents: 1789 N.Y. Acts 114-15 (punishing the forgery of lottery tickets
with death); 1794 N.Y. Acts ch. 1 (punishing the forging or counterfeiting of a certain
“certificate or endorsement” related to “registering deeds and conveyances relating to military
bounty lands” with death).

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The majority next cites North Carolina forgery laws. See 1777 N.C. Acts ch. 12, § 10.
These laws made forgery of tobacco stamps punishable similar to “the cases of willful and
corrupt perjury.”57 See id. At the Founding, perjury was punishable in North Carolina with a
fine of up to 500 pounds, a one-hour stint in the pillory, corporal punishment, and an incapacity
to give testimony—not death. See, e.g., 1791 N.C. Acts 9-10. Other North Carolina laws also
disallowed death upon the first offense (but did impose the death penalty for recidivists). See
1779 N.C. Acts 281 (ch. 8, § 3) (punishing, upon first offense, forgery of public bills of credit,
lottery tickets, or loan-office certificates with “pillory one hour, and have one ear cut off, and
receive thirty-nine lashes,” as well as imprisonment (at the judge’s discretion) and to “forfeit58
one half of his or her property to the use of this state”); id. (ch. 8, § 4) (punishing those same
forgeries with death upon a second offense). A later code provision in this same statute punished
those guilty of “printing, writing, engraving or by any other ways or means . . . counterfeiting,
any of the bills of credit by this act” by “suffer[ing] the pains and penalties which persons guilty
of similar offences are liable to by an act.” 1779 N.C. Acts 287 (referring to 1779 N.C. Acts
281). It appears that no first-time offender like Orange would have been sentenced to death for
57 Even if the tobacco laws were punishable by death (they were not), they would be
analogous to Code § 18.2-170, regulating the use of the seal of the government or a corporation,
since the stamps were an emblem of the government. See 1777 N.C. Acts ch. 12, §10. And
Orange was not convicted under this code section.
58 As noted in Subsection (g), infra, firearms have been in a special legal category when it
comes to forfeiture, with many states (including Virginia) prohibiting privately owned guns from
seizure in civil suits and estate sales resulting from crime. See Greenlee, supra, Disarming the
Dangerous, 16 Drexel L. Rev. at 71. See, e.g., The Public Records of the Colony of Connecticut,
Prior to the Union With New Haven Colony, May 1665, at 537 (Trumbull ed., Hartford, Brown
& Parsons 1850); 13 Archives of Maryland, at 557 (1692 Maryland); id. at 280 (1715 Maryland);
1 Stat. 271, § 1 (1792). And even in those few states where guns were forfeited, those convicted
of crime were not permanently disarmed. Greenlee, supra, Disarming the Dangerous, 16 Drexel
L. Rev. at 71 n. 427 (citing Range, 53 F.4th at 283).

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forgery of any document and that no death sentence would have been imposed for any private
forgery in North Carolina.
The Pennsylvania statute that the majority notes punished by death for counterfeiting the
name of a “treasurer or loan-officer” on a bank note. See Act of March 21, 1783, reprinted in 11
Statutes at Large of Pennsylvania from 1682 to 1801, at 81, 89 (1906); 1783 Penn. Acts 103-04.
A 1785 law extended the penalty for bills of credit, though the majority did not identify it. See
1785 Penn. Acts 260-61.59 For these banking and currency laws, if it was the amount of money
represented that was counterfeited, the punishment was not death but “the pillory” or to “have
both his or her ears cut off and nailed to the pillory, and be publicly whipped on his or her back
with thirty-nine lashes.” Id. There was also the possibility for a fine. Id. As stated above,
regulations on counterfeiting bank notes and bills of credit are analogous to Code § 18.2-168
(coins, government notes, bills, or bank notes). The Pennsylvania statutes are, thus, not a
historical analogue to Code § 18.2-172, forgery of a private document. Even if they were, in
1793, the Pennsylvania legislature signed into law a new punishment for the forgery of bank
notes, gold or silver coins, and other currency. See 1793 Penn. Acts 600-01. In doing so, the
legislature removed the imposition of the death penalty and substituted it with a prison term of
no less than four and no more than fifteen years, as well as a $1,000 fine. Id.
Pennsylvania also had many forgery statutes that did not result in the death penalty. For
instance, a 1777 law regulating the forgery of a travel certificate, which persons were to carry
with them if they visited a foreign nation, carried a fine of fifty pounds and “commit[ment] to
jail, until he pays the fine and costs of prosecution.” 1777 Penn. Acts 64-65. Accord Code
§ 18.2-168 (forgery of public records). The forgery of a federal lottery ticket, within
59 Nor did my colleagues identify a 1780 law that imposed the death penalty for forgeries
of bills of credit. See 1780 Penn. Acts 395-96.

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Pennsylvania, resulted in a stint in the pillory, a public whipping, and a fine. 1777 Penn. Acts
55-56. Accord Code § 18.2-168 (forgery of public records). Any counterfeiting of the “brand
marks” on casks of flour was punished with a fine of five pounds for a first offense, plus
forfeiting the casks counterfeited. 1781 Penn. Acts 456. Accord Code § 18.2-169 (forgery of
public seals). For the second offense, there was a fine of ten pounds. For the third offense, the
individual would be “committed to jail and sentenced to the pillory” for two hours on a busy
“market day.” Id. That statutes analogous to Class 4 forgeries were not even punished with the
death penalty suggests that the Pennsylvania Founders would never have executed a person
convicted of a Class 5 forgery.
Next, the majority cites a statute from Rhode Island that criminalized and punished with
death the forging or counterfeiting of currency, money, or bills of credit (i.e., loans from the state
government). See 1780 R.I. Laws 51. This law is an inappropriate analogue for three reasons.
For one, the Rhode Island law is directly analogous to Code § 18.2-168 (coins, government
notes, bills, or bank notes), not Code § 18.2-172. Secondly, if a person was found guilty of
merely forging “the Denomination thereof” on the bills of credit, they would “be sentenced to the
Pillory, and have both his or hers Ears cut off, and nailed to the pillory, and be publicly whipped
Thirty-nine lashes on his or her naked Back.” Id. And finally, in 1791, Rhode Island seemed to
reverse course, passing a law that noted that anyone convicted of forgery of bank notes or checks
would “suffer such Punishment as shall be adjudged by said Court, so as the same do not extend
to Death, or more than Seven Years Servitude or Imprisonment.” 1791 R.I. Acts 16 (emphasis
added); 1800 R.I. Acts 18-19.
There is a second Rhode Island statute, to which the majority did not point, that also
suggests the Founders in that state would not have imposed the death penalty on Orange—much
less disarmed her. Rhode Island did not impose the death penalty for forgeries of documents

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relating to private shipping. A 1783 Rhode Island statute punished with the “forfeit[ure] [of] the
Sum of One Hundred Pounds, and the Value of the Goods mentioned therein” forgeries of “any
Permit, Certificate, Receipt or Bill of Lading” of a delineated list of common imports and
exports coming in and out of public ports. 1783 R.I. Acts 50.60 The ports required boat
“masters” to sign the Bill of Lading. 1783 R.I. Acts 45-50. It also required naval officers to sign
the certificates. Id. Because this 1783 statute regulated the public port with numerous public
records, and because Code § 18.2-169 also encompasses forgery of the seal of corporations, this
statute is likely among the already-discussed statutes that fail to reach the level of historical
analogue to Code § 18.2-172. Nonetheless, it showed that Rhode Island did not impose the death
penalty for statutes analogous to Class 4 forgeries, so it is likely that the Rhode Island Founders
would not have imposed the death penalty for Class 5 forgeries either.
The majority also cites to a 1783 South Carolina law that punished with death the forgery
of “gold or silver coins” and/or the possession of any instruments used to forge that money.
1783 S.C. Laws 17. This statute is directly analogous to Code § 18.2-168 (coins, government
notes, bills, or bank notes) and Code § 18.2-171 (possession of any “engrave, stamp, or cast,
or . . . any plate, block, press, or other thing, adapted and designed for the forging and false
making of any writing”). South Carolina had three other laws that the majority did not cite, each
imposing death: (1) a 1776 law “to support the credit and satisfy the creditors of the public,”
which imposed a death sentence to anyone who forged “currency”; (2) a 1785 law criminalizing
the counterfeiting of paper bills and tobacco notes; and (3) a 1786 law criminalizing the
60 Under this act, a man was convicted in 1784 “of passing a counterfeit English shilling”
and “sentenced to pay a Fine to the State of Nine Pounds.” 1786 R.I. Resolutions 11,
https://heinonline.org/HOL/P?h=hein.ssl/ssri0480&i=3. Similarly, in 1791, a man was arrested
and imprisoned in the gaol for a crime of forgery. 1791 R.I. Resolutions 22,
https://heinonline.org/HOL/P?h=hein.ssl/ssri0508&i=3.

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alteration, erasure, or counterfeiting of “Special Indents”61 used in the commission of the state’s
tax collection. See 1776 S.C. Laws 283; 1785 S.C. Laws 4, 36.62 These two statutes are also
analogous to Code § 18.2-168. In sum, none of the South Carolina statutes are a historical
analogue to Orange’s forgery of a private document.
The majority next cites to a South Carolina statute that included—within an enumerated
list of public documents like bank notes and currency—the forgery of deeds and wills as a crime
punishable by the death penalty. See 1801 S.C. Laws 36-38.63 The majority claims that the
inclusion of deeds and wills provides a historic analogue for Code § 18.2-172. However, this
South Carolina statute presents almost exactly the issue that the Supreme Court of Virginia
tackled in Campbell. In 1819, the Campbell statute listed multiple public records, including
deeds and wills. 246 Va. at 182. The Court found that the English common law distinguished
between forgery of public records and forgery of private documents. Id. It then found that deeds
and wills were public documents, in large part because they were groups with other public
documents without modifiers—as are the words “deeds” and “wills” in the South Carolina law.
61 These special indents were contracts that were signed between taxpayers and the state,
agreeing to pay a certain denomination due to South Carolina or be put to death. See 1786 S.C.
Acts 4; see also Indent, Black’s Law Dictionary 916 (12th ed.) (“An indented certificate of
indebtedness issued by the U.S. government or a state government in the late 18th or early 19th
century.”). This same act was reauthorized for the 1787, 1788, and 1794 tax years. See 1787
S.C. Acts 5; 1788 S.C. Acts 2-3; 1794 S.C. Acts 26-27.
62 This statute was recodified into a different code section in 1789. See 1789 S.C. Acts
10.
63 When analyzing the 1796 repeal of the Virginia statute abolishing the death penalty for
forgery crimes, the majority noted that the 1796 General Assembly was not encompassed in the
Founding era. But now, it cites an 1801 South Carolina law as a Founding era statute—a law
enacted five years after the Virginia repeal and ten years after ratification. The majority cannot
have its cake and eat it too. And given the Bruen and Rahimi analyses, both the 1796 and 1801
are likely to be Founding laws.

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Id. But, as for the Georgia statute above, I will assume for the sake of argument that the South
Carolina law is analogous to Code § 18.2-172.
Lastly, the majority cites a 1776 Delaware statute that criminalized the forgery of certain
documents. See 1776 Del. Acts 366.64 For the forging of a signer’s name on a bill of credit, the
punishment was death. Id. For the forging of the denomination on the bill of credit, the
punishment was the pillory, cutting off one’s ears, a public whipping of 31 lashes, a fine, and
restitution payments to the victim. Id. If the guilty party could not pay the restitution, they were
to be “sold” as an indentured servant for a time period not to exceed seven years. Id. The
forging of a bill of credit is analogous to Code § 18.2-170, as a form of currency, not to the
forgery of private documents under Code § 18.2-172. And importantly, six years later, in 1783,
Delaware passed a statute analogous to Code §§ 18.2-169 through -171, criminalizing the
forgery of the “Common Seal” of the Bank of North America or any of its bank notes, as well as
tendering counterfeited bills, and enforcing a punishment of a public whipping, one hour on the
pillory, an ear cut off, and restitution. See 1783 Del. Acts 2-3. Meaning that, before 1791,
Delaware changed the punishment for public forgery from the death penalty to corporal
punishment—and notably, not disarmament. And further, the 1783 law is still not analogous to
the forgery of private documents, because the focus was on documents related to the Bank of
North America.
Though the majority did not cite their forgery statutes, there were two more states in the
union at the time of the Founding: Connecticut and Massachusetts. In Connecticut, the 1790 law
criminalizing the forgery of public records resulted in a punishment of imprisonment (1) for a
period not to exceed three years for the first offense, (2) for a period not to exceed five years for
the second offense, and (3) for life for third and subsequent offenses. See 1790 Conn. Acts and
64 It appears that this bill was reaffirmed in 1781. See 1780-81 Del. Acts 731.

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Laws 393.65 Under this law, forgery and horse theft were regulated together, under the same
code section, and carried the same punishment. Id. However, there was a 1792 statute outlawing
the falsifying or altering of “Packing and Branding of any Calk, Barrel or other Vessel” of
provisions after their import inspection. 1792 Conn. Acts and Laws 404. The wrongdoer would
be sentenced to a fine of forty shillings per branding altered, under the provision. Id.
Connecticut seems to have not regulated the forgery of private documents. See generally Conn.
Acts and Laws (1776-1800).
There was also a 1796 Connecticut forgery statute somewhat similar to Georgia’s, under
which a person guilty of the forgery of “any false deed, or other writing as aforesaid . . . shall
render and pay to the Party of Parties injured thereby double Damages . . . and shall also be
rendered incapable and be disabled to give Evidence or Verdict, in any Court or before any
Magistrate or Justice of the Peace.” See Acts & Laws of the State of Connecticut, in America,
(Hartford: Printed by Hudson and Goodwin, 1796). Although I believe the public-private
distinction from Campbell, 246 Va. at 184, applies—and that deeds and trusts are to be
considered public records, as discussed above—this Connecticut statute is the closest thing the
majority has to a historical analogue to Code § 18.2-172. And, importantly, it did not impose the
death penalty. See Acts & Laws of the State of Connecticut, in America, supra.
65 Connecticut had two forgery laws before the ratification of the Bill of Rights (but after
independence was declared) that said a person convicted of forgery of public securities and
private notes of credit was to “suffer the same Penalties as Persons convicted of making or
uttering counterfeit Bills of public Credit, are by Law subjected to.” 1779 Conn. Acts and Laws
513; 1779 Conn. Acts and Laws 510 (similar language). The exact same language was used
again in 1781. See 1781 Conn. Acts and Laws 581. However, (1) it is not at all clear whether
this meant a former statute, a law from the Continental Congress, or the common law; and (2) the
same Connecticut legislature that ratified the Second Amendment also passed into law the 1790
statute prescribing imprisonment for forgeries of public documents. Therefore, the 1790 law
appears to be the best representative of the Founding era.

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In Massachusetts, there do not appear to have been any Founding forgery laws analogous
to Code § 18.2-172 that imposed the death penalty. As early as 1692, anyone who forged a
“false Deed, Conveyance, or Writing sealed, or the Will of any Person or Persons in Writing, to
the Intent that the Estate of Free-hold or Inheritance, Right, Title, or Interest of any Person or
Persons, of, in, or to any Lands, Tenements, or Hereditaments” or “any Obligation, or Bill
Obligatory, Letter of Attorney, or any Acquittance, Release, or other Discharge of any Debt,
Account, Action, Suit, Demand, or other Thing Personal,” was to then be had to pay the
aggrieved party “double Costs and Damages,” and “also shall be set upon the Pillory in some
Market-Town, or other open Place, and there to have One of his Ears cut off, and also shall have
and suffer Imprisonment by the Space of One whole Year without Bail or Mainprize.” Acts and
Laws Passed by the Great and General Court or Assembly of the Province of the Massachusetts-
Bay in New-England (June 1692), https://heinonline.org/HOL/P?h=hein.ssl/ssma0556&i=1.
While the colonial era may not be as informative as the Founding era, as discussed above, the
1692 Massachusetts law was by far the most encompassing of any of the thirteen states in the
union, and one of the only ones to encompass private documents like letters from an attorney.
And the 1692 law becomes legally relevant because its principles were continued and
extended to other kinds of documents well into the Founding era. See 1777 Mass. Acts and
Laws 117 (instructing that anyone guilty of forgery of a loan office certificate or lottery ticket
shall be “set on the Gallows for the Space of one Hour, with a Rope round his Neck, and shall
pay a Fine not exceeding One Hundred Pounds”); 1779 Mass. Acts 243 (similar, but also
including a sentence of one year in prison and a public whipping of 39 stripes); 1780 Mass. Acts
and Laws 312 (instructing that anyone guilty of forgery of a lottery ticket shall be “set on the
Gallows for the Space of one Hour, with a Rope round his Neck, and shall pay a Fine not
exceeding Five Hundred Pounds”); 1785 Mass. Acts and Laws 267 (noting the punishment for

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forgery of public and banking records was “setting in the pillory, at one or more times or places,
cropping one ear, whipping, imprisoning, fining, and binding to the good behaviour”); 1790
Mass. Acts and Laws 52 (detailing that a person guilty of forgery of a lottery ticket must pay a
fine not exceeding one hundred pounds, and receive a whipping, be made to stand in the pillory,
and/or serve a term of imprisonment); 1796 Mass. Acts and Laws 457 (directing that anyone
guilty of forgery of “silver or gold money, or coin” be punished by paying a fine “not exceeding
one hundred pounds, be set in the pillory one hour, be whip[ped], not exceeding twenty stripes,
have one ear cut off, be bound to the good behaviour or confined to hard labour, not exceeding
three years”); 1801 Mass. Acts and Laws 467 (mandating that a person guilty of forgery of bank
bills serve no less than three and no more than ten years in prison). See also Private & Special
Statutes of the Commonwealth of Massachusetts from the Year 1780 to the Close of the Session
of the General Court, Begun & Held on the Last Wednesday in May, A.D. 1805 (Boston: Printed
for the State, by Manning & Loring, 1805). It appears that the tradition of Massachusetts was
corporeal punishment for forgery of both public and private documents—and notably,
disarmament was not a listed consequence.
That two of the thirteen states in the union in 1791 (Georgia) and 1801 (South Carolina)
perhaps had in its code books capital punishment for the forgery of private documents (deeds
and wills) does not a history and tradition of the United States make. See Bruen, 597 U.S. at
65-66 (“As in Heller, we will not ‘stake our interpretation of the Second Amendment upon a
single law, in effect in a single [State], that contradicts the overwhelming weight of other
evidence regarding the right to keep and bear arms . . . .” (alteration in original)).66 This is
66 In a 2024 en banc review, the Third Circuit decided that a man convicted of federal
food stamp fraud could not be disarmed. See Range, 124 F.4th at 225-27. In doing so, the Third
Circuit highlighted five states with Founding forgery or counterfeiting laws that did not result in
capital punishment. Id. at 227. The majority in this case critiques the Range court for citing an
1803 forgery law in Virginia. My colleagues believe that 1803, twelve years after ratification,

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especially true given the fact that the available data shows Georgia did not execute anyone for
forgery between 1608 and 1800. See M. Watt Espy & John Ortiz Smykla, Executions in the
United States, 1608- 2002: The ESPY File (2004), https://doi.org/10.3886/ICPSR08451.v5.
Because the death penalty was not imposed for forgery of private documents in even a few of the
thirteen states—much less the overwhelming number of them, as the majority contends—the
national public discourse would not have supported the death penalty as a just punishment for
forgery of private documents.
f. Federal Death Penalty for Forgery
The majority asserts that there is a history and tradition of sentencing to death those
convicted of forgeries of private records because Congress enacted a 1790 statute imposing the
death penalty on anyone who forged or counterfeited a public certificate or public security of the
United States. See Act of Apr. 30, 1790, ch. 9, § 14, 1 Stat. 112, 115. Similarly to the state laws
above, this federal statute is analogous to the forgery of bank notes under Code § 18.2-170, or to
the forgery of the United States seal under Code § 18.2-169. As such, it is not a historic
analogue to Code § 18.2-172, forgery of private documents.
was too late to be considered as part of the nation’s history and tradition—adopting a myopic
definition of the Founding era. Cf. Bruen, 597 U.S. at 49 (highlighting 1795 and 1801 statutes);
Rahimi, 602 U.S. at 694-95 (citing an 1800 surety law); Heller, 554 U.S. at 603-04 (relying on
1820 statutes). Even if we had to discard any laws not operable in 1791, as the Range court
identified, numerous states did not utilize capital punishment for forgery at or around 1791. Id.
(“But at the Founding, many states were moving away from making felonies—including crimes
akin to making false statements—punishable by death in America. . . . For example, in
Massachusetts, New Jersey, Kentucky, Virginia, Connecticut, and New York, forgery and
counterfeiting were punishable with imprisonment, hard labor, fines, or corporal punishment, but
not death.” (internal citations omitted)). See also James T. Mitchell et al., Compiled Statutes at
Large of Pennsylvania from 1682 to 1801 (1700-1809); An Act to Prevent Forgery, And For the
Punishment of Those Who Are Guilty of the Same, 1784 Mass. Acts ch. 67; Harry Toulmin,
Collection of All the Public and Permanent Acts of the General Assembly of Kentucky Which Are
Now in Force (1802); Acts and Laws of the State of Connecticut (1784); William Paterson, Laws
of the State of New Jersey (1800); Thomas Greenleaf, Laws of the State of New York, Comprising
the Constitution, and the Acts of the Legislature, since the Revolution, from the First to the
Fifteenth Session (1797).

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The majority also cites, rather outlandishly, federal forgery statutes associated with
international terrorism. See 18 U.S.C. § 1546. This statute is not an analogue to forgery of a
private document in the slightest. Terrorism charges are classified as violent crimes. See Code
§ 17.1-805(C). This classification is commonsensical, as terrorism is a serious threat to national
security. See supra (discussing the founding fathers’ imperative to disarm rebels or
insurrectionists but not nonviolent individuals). It is hard to imagine how forgery under Code
§ 18.2-172 could relate to international terrorism. Perhaps one could forge immigration
documents (which would be public documents under Code § 18.2-168), documents needed for
international travel (like a passport or Real I.D. which would fall under the provisions for public
records or seals). And Code § 18.2-172 certainly does not touch the transportation of guns,
weaponry, explosives, or any of the other violent crimes listed under Code § 17.1-805(C).
The majority notes that the federal government kept the death penalty for forgery of
public documents on the books until 1825. See Wynne v. United States, 217 U.S. 234, 241
(1910) (discussing the 1825 act). However, even if the statute was applicable to Orange (which
it is not), there were no federal executions for forgery in this time period. See Hannah Freedman,
The Modern Federal Death Penalty: A Cruel and Unusual Punishment, 1689 Cornell L.Rev.
107, 1707 (2022).67 In sum, in its exhaustive list of forgery statutes at the Founding, the majority
67 Between 1790 and 1829, there were only 138 federal capital trials. Of those, 118
resulted in convictions. Hannah Freedman, supra, The Modern Federal Death Penalty: A Cruel
and Unusual Punishment, 1689 Cornell L. Rev., at 1708. Sixty-four of the 118 condemned men
were pardoned; 42 were executed; six went “unaccounted for”; three died in custody; two
escaped; and one died by suicide. Id. (citing H.R. EXEC. NO. 20-146 (1829), reprinted R in
H.R. REP. NO. 53-545, app. at 6 tbl.1). And “the approximately seventy-five federal executions
carried out before the Civil War were all imposed for some form of piracy or armed robbery of
the United States mail.” Id. at 1709.

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fails to find a historical analogue justifying the disarmament of Orange and cites no tradition of
executions for forgery of a private document.68
g. Forfeiture of Property
Finally, the majority claims, without citing any case law to support its claim, that “the
right to armed self-defense” was “obviously subsumed within the . . . forfeiture of all property,
real and personal.” But the history of firearm rights does not support this argument, as firearms
were not considered as typical “personal property.” In fact, the Virginia General Assembly
68 The majority makes the sweeping assertion that seven circuits have allowed the
disarming of a person with any felony conviction. However, the reality of the circuit court split
is not that simple. What the federal circuits have done is differentiate between violent and
nonviolent felony convictions—routinely upholding the disarmament of only those found to be a
physical threat to others. See Range, 124 F.4th 218 (overturning felony-in-possession law of an
individual convicted of food stamp fraud because, having served his sentence, he was no longer
dangerous); Diaz, 116 F.4th at 469 (disarming as dangerous an individual previously convicted
of two vehicle thefts, while carrying a firearm and narcotics, and evading arrest); United States v.
Daniels, 124 F.4th 967, 979 (5th Cir. 2025) (affirming an as-applied challenge to a felony-in-
possession charge for felony possession of narcotics because “applications of § 922(g)(3) must
accord with our nation’s history of firearm regulations, and disarming individuals solely for their
prior, occasional, or habitual marihuana use does not”); Williams, 113 F.4th at 658-61
(categorizing offenses that could lead to disarmament— “crimes against the person” like murder,
sexual assault, and even drug trafficking—because they “pose a significant threat of danger,” and
those that could not lead to disarmament—crimes like mail fraud and making false statements,
that pose no such danger); United States v. Williams, 616 F.3d 685, 693 (7th Cir.) (finding an
individual with a previous conviction of robbery to be dangerous, given he “beat[] the victim so
badly that the victim required sixty-five stitches,” and thus eligible to be disarmed), cert. denied,
562 U.S. 1092 (2010). All of these holdings are in line with the dangerous-nondangerous
distinction my dissent hopes to underscore.
Only one federal circuit decided a felon-in-possession case in a way that echoes today’s
majority. See United States v. Hunt, 123 F.4th 697, 705 (4th Cir. 2024). One circuit is a far cry
from a circuit split; it merely creates an outlier. The majority also relied on Kanter, a pre-Bruen
case that was overruled in part by the Bruen Court, because its seriousness test employed a
rational basis review, which is no longer the Second Amendment standard. See Bruen, 597 U.S.
at 18-19. See also Kanter, 919 F. 3d at 451 (disarming an individual guilty of a $27 million mail
fraud scheme used to evade Medicare requirements because the defendant was convicted of a
“serious” federal felony).
Lastly, as a minor note, the majority also cites United States v. Vizcaíno-Peguero, 175
F.4th 34, 47 (1st Cir. 2026), but that case looked to whether an “alien” was one of ”the People”
under the first prong of the analysis, and did not engage in the dangerousness standard set forth
for those with previous felony convictions. Its inclusion seems to be altogether irrelevant.

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placed firearms in a special legal category, prohibiting privately owned guns from being held
subject to seizure in a civil suit or being included in estate sales that resulted from convictions
for crimes—including the federal Uniform Militia Act of 1792. See Greenlee, supra, Disarming
the Dangerous, 16 Drexel L. Rev. at 71. See, e.g., The Public Records of the Colony of
Connecticut, Prior to the Union With New Haven Colony, May 1665, at 537 (Trumbull ed.,
Hartford, Brown & Parsons 1850); 13 Archives of Maryland 557 (1692 Maryland); id. at 280
(1715 Maryland); 1 Stat. 271, §1 (1792). “Notably, even when arms could be included in
recovery actions, no law forbade the individual whose estate was sold from immediately
acquiring new arms.” Greenlee, supra, Disarming the Dangerous, 16 Drexel L. Rev. at 71 n.
427 (citing Range, 53 F.4th at 283).
Ultimately, Orange was not convicted of forgery of a public record, certificate, or seal.
Nor was she convicted of forgery of notes, coins, or bills of a banking company or the
Commonwealth. Therefore, the majority’s historic analogues are illusory.
h. Original Public Meaning and Public Discourse
Even if the majority is correct that Orange can be disarmed because the Founders put to
death those who forged private documents, part of our analysis under the Bruen test requires us
to look to the original public meaning of the Second Amendment understood by the general
population, turning to the public discourse among the people at the time. Bruen, 597 U.S. at 20,
60, 82 (reviewing historical “public discourse,” “the public understanding,” and “original public
meaning” surrounding disarmament).
Throughout the seventeenth and eighteenth centuries, though capital statutes were in the
code books, in reality, capital punishment in the colonies and at the Founding was used
“sparingly,” and property crimes including variations on theft, burglary, and robbery “were, on

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the whole, not capital.” Lawrence M. Friedman, Crime and Punishment in American History 42
(1993).
The legitimacy of Founding-era laws that did result in the death penalty for certain
forgeries were seen as highly suspect. The general public stood so firmly against such harsh
punishment for forgery that those laws became practically ineffective. See William Bradford,
Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania: With Notes &
Illustrations 11 (Philadelphia: Printed by T. Dobson, 1793) (in a letter by the second Attorney
General of the United States to the Pennsylvania legislature, observing that in a state punishing
forgery with death, due to “the public sentiment revolting against this severity[,] very few have
been executed” (emphases added)).
Along those lines, some prominent commentators regarded the imposition of the death
penalty for forgery as an oppressive relic derived from an antagonistic Crown, against which we
had recently declared independence. See id. at 9-11; see also James Wilson, Of Crimes Against
the Right of Individuals to Their Property (1791-92), in 3 The Works of the Honorable James
Wilson, L.L.D. 49, 51 (Bird Wilson ed., 1804) (Justice Wilson, a Constitutional Convention
delegate and U.S. Supreme Court Justice, during a lecture delivered at the College of
Philadelphia in the winter of 1791-92, criticizing the development of capital punishment for
forgeries in England with the Latin expression, “pluet super populum laqueos”—which means,
“a noose hangs over the heads of the people”—and borrowing language from England’s Lord
Bacon to castigate capital punishment for forgery as among those “penal laws[] which are worse
than showers of hail or tempest upon cattle; for they fall upon men”).69 Because of this strong
public sentiment, executions for forgeries were almost never carried out.
69 Even John Locke, whose writing was singularly influential on the American revolution,
advocated in his Second Treatise against the death penalty for all crimes that did not
“recompense for death,” highlighting that a murderer continues to be “dangerous” to others.

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In its own attempt to capture the public understanding of forgery, the majority identifies
the congressional debates of April 7, 1790 to support the contention that the death penalty was
favored for forgeries. But my colleagues cite only two of the three relevant discussions on the
convention floor. While Mr. Sedgwick supported capital punishment for forgery of public
securities, others raised that perhaps the language—mandating a public hanging for the forgery
of “securities of the United States”—“should be amended, by striking out the words ‘punished
with death by being hanged,’ to admit less punishment for uttering or passing than for
counterfeiting.” 2 Annals of Cong. 1521 (Apr. 7, 1790).70 Mr. Fitzsimon highlighted the
distinction between merely uttering falsehoods and forging “public paper.” Id. Mr. White then
“observed that he was opposed in general to inflicting death, except for murder, or crimes which
might terminate in murder.” Id. He went on to say that, in the case of forgery, “there were
degrees of guilt and the punishment ought to be proportioned”; he concluded that he was against
capital punishment in the case of forgery of public securities. Id. In sum, the Founders were not
in agreement regarding the capital punishment of those who forged public documents, and they
did not discuss on the floor the forgery of private documents. Id.
Andrew Dilts, To Kill a Thief: Punishment, Proportionality, and Criminal Subjectivity in
Locke’s “Second Treatise,” 40 Political Theory 58, 61-62 (2012) (citing Locke, § 12: “By the
same reason, may a Man in the State of Nature punish the lesser breaches of that Law? It will
perhaps be demanded, with death? I answer, Each Transgression may be punished to that
degree, and with so much Severity as will suffice to make it an ill bargain to the Offender, give
him cause to repent, and terrif[y] others from doing like”). See also Bradley C. Thompson, John
Locke and the American Mind, 8 American Political Thought 575, 590 (2019) (“Serious scholars
of the American Revolution have always known what pre- and postrevolutionary Americans
knew with certainty: that John Locke’s moral and political philosophy inspired, shaped, and
guided colonial American thought in the decades leading up to the War for Independence. Ideas
have consequences, and the American mind was built on Locke’s modes of reasoning and
principles.”).
70 The proposal was ultimately voted down, but the discourse around the language
suggests that not every Founder agreed that the death penalty should be utilized for forgeries of
public documents. And of course, the distinction between private and public documents makes
the relevancy of the convention debate questionable in itself.

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The majority notes that the states carried out an estimated 779 executions between 1608
and 1800. However, only 18 of those executions punished forgery. See M. Watt Espy & John
Ortiz Smykla, supra, Executions in the United States, 1608- 2002: The ESPY File. And all but
one of the 18 executions for forgery were performed in the state of New York. See id. This is
the state in which, as William Bradford noted in 1796, public sentiment against this punishment
was so widespread that forgery convictions in the state plummeted. See Bradford, supra,
Enquiry How Far the Punishment of Death Is Necessary. South Carolina executed one man
convicted of forgery in 1791. See id. But as noted above, South Carolina had no statutes in
effect in 1791 that authorized the death penalty for private documents. Importantly, in Bruen,
the Court mandated that courts
will not give disproportionate weight to a single state statute and a
pair of state-court decisions. As in Heller, we will not “stake our
interpretation of the Second Amendment upon a single law, in
effect in a single [State], that contradicts the overwhelming weight
of other evidence regarding the right to keep and bear arms for
defense” in public.
597 U.S. at 65-66 (alteration in original) (quoting Heller, 554 U.S. at 632).
Lastly, it is worth mentioning that the majority’s lesser-included-punishment theory
ignores the fact that Orange had completed whatever sentence that was attached to her forgery of
private documents. The record notes that she was not actively on probation or parole. See
Kanter, 919 F.3d at 461-62 (Barrett, J., dissenting) (“The obvious point that the dead enjoy no
rights does not tell us what the founding-era generation would have understood about the rights
of felons who lived, discharged their sentences, and returned to society.”).
II. Permanent Disarmament
The majority ends its opinion with the assertion that Orange failed to show that her loss
of gun rights is permanent, because Code § 18.2-308.2(c)—as well as its federal analogue, 18

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U.S.C. § 925(c)—allows for firearm restoration. This claim disregards the Bruen Court’s call for
judicial review of the deprivation of constitutional rights.
To support its claim, the majority cites an amicus brief supplied—in a different case,
before a different court—by the federal Attorney General’s office, interpreting 18 U.S.C.
§ 925(c). Unfortunately, the amicus’s logic cannot be applied to Virginia’s state statute, as the
federal statute allows for as-applied challenges to the denial of restoration to be reviewed by a
district court, whose decision can then be appealed. See 18 U.S.C. § 925. The state statute does
not have the same level of judicial review. See Code § 18.2-308.2(c). Virginia’s restoration
statute notes that “no person who has been convicted of a felony shall be qualified to petition for
such an order unless his civil rights have been restored by the Governor or other appropriate
authority.” Id. (emphases added); see also Gallagher v. Commonwealth, 284 Va. 444, 453
(2012) (“A person convicted of a felony in Virginia must first obtain an order from the Governor
removing his political disabilities as a condition precedent to his right to petition the circuit court
for restoration of his firearm rights.”). The judiciary does not review the governor’s decision. In
fact, it does not appear that the Governor’s decision to remove political disabilities has any
course of appeal. See In re Phillips, 265 Va. 81, 87-88 (2003) (“[T]he power to remove [a]
felon’s political disabilities remains vested solely in the Governor, who may grant or deny any
request without explanation, and there is no right of appeal from the Governor’s decision.”).71
71 The Commonwealth, during oral argument, informed this court that restoration is
“theoretically not permanent, [but] practically speaking, plenty of people are convicted of
felonies . . . and petition unsuccessfully for the Governor to restore their rights.” Oral Arg. at
18:55-19:14. The Commonwealth also admitted the denial of those petitions by the Governor is
unreviewable, as the circuit court can only be petitioned once the governor has approved a
petition. Oral Arg. at 19:25-19:45. See also Frequently Asked Questions About Pardons,
Secretary of the Commonwealth – Candi Mundon King,
https://www.commonwealth.virginia.gov/judicial-system/pardons/ (last visited May 15, 2026)
(“If your pardon is denied, you may not appeal the decision. You may however file a new
petition three years after the date of the denial letter.”); Restoration of Firearm Rights, Virginia
State Police, https://wwwuat.vsp.virginia.gov/services/firearms/restoration-of-firearm-rights (last

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The Bruen Court suggested that disarmament without judicial review is constitutionally
suspect because it is effectively the permanent deprivation of a person’s civil right. Bruen, 597
U.S. at 13. And permanent disarmament is outside the nation’s history and tradition. Even the
colonies, after Shays’s Rebellion, only disarmed insurrectionists for three years. See 1787 Mass.
Acts 555-56.
Now that Orange has this possession of a firearm felony conviction under Code
§ 18.2-308.2, her ability to petition for the restoration of her civil rights could be even more
difficult. The Governor will now consider Orange’s two felony convictions. Orange will now
bear the label of a “repeat offender.” She will also serve a mandated prison stint, which itself
burdens her present right to bear arms and will surely carry consequences that burden her future
right to do so.
III. Applying the “Principles Underlying the Second Amendment” to Orange
These battles of history—one Founder’s opinion pinned against a second’s, scholars
lobbing law review articles in the face of their peers—create ambiguity.72 The Supreme Court
visited May 15, 2026) (“If you have been granted restoration of your political rights from the
Governor of Virginia, you may petition circuit court of the county or city in which you reside or
of the county or city in which you were convicted, for a hearing to request restoration of your
firearm rights.”). In fact, due process surrounding rights restoration is limited. The Governor
relies solely on the submission filed with the Secretary of the Commonwealth, and any letters of
support that may have been submitted. Frequently Asked Questions About Pardons, Secretary of
the Commonwealth – Candi Mundon King, https://www.commonwealth.virginia.gov/judicial-
system/pardons/ (last visited May 15, 2026). There is no additional “hearing, meeting, or
conference.” Id.
72 Scholars and jurists are divided, fueling an active disagreement in legal and academic
settings alike—each side trying to prove that American history supports their policy goals. See
Hemani, 225 L. Ed. 2d at 337 (Jackson, J., concurring) (“[J]udges draw different conclusions
from the same historical evidence and reach divergent assessments of the same laws.”). My
colleagues and I are so divided. This country has a long history of the very debate,
argumentation, and introspection that we are in now. These disputes provide ample evidence to
be hand-selected in support of contrary positions. Our country’s history is so rich that almost
any position could be supportable by 18th century political thinkers who struggled with the same

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has not provided guidance on what lower courts must do when history is inconclusive. Perhaps
common sense and practical understandings of the traditions of a nation will provide the best
resolution. See Rahimi, 602 U.S. at 692 (“The law must comport with the principles underlying
the Second Amendment.”).
The principles underlying the history and tradition of firearm regulations show only
dangerous individuals being disarmed. The principles of lesser-included-punishments show only
those convicted of forgery of public documents being put to death—reflecting the Founders’
desire to ward off insurrection or threats to the nation, one of the three categories of
dangerousness that was historically regulated, as discussed at length above.
If the Supreme Court and federal circuits have emphasized dangerousness, then
dangerous is the lens through which we must judge Ms. Orange. Here, it is undisputed that
Orange’s conviction for forgery was a nonviolent crime. See Code § 17.1-805(C) (delineating all
violent crimes in Virginia, of which forgery is not one); 18 U.S.C.A. § 924(e) (classifying violent
felonies as those crimes involving use or threat of physical force). Nothing in the record
suggests that Orange used her shotgun in a dangerous manner73; she did not point it at anyone,
she did not fire it.74 Video provided to the police showed that she merely held the shotgun in her
question we do now—what is best for the people? When history competes, our answer must tap
into something less illusory: practicality.
73 Nothing in this dissent should be construed to suggest that Bruen and Rahimi prohibit
the application of sentencing enhancements when a person is convicted of an armed crime;
oftentimes, those enhancements should be applied, given the heightened danger that comes from
a possessing a firearm in the commission of a crime.
74 According to historians, under the individual rights theory held by many Founders,
“the state might regulate bearing arms, but it was prohibited from regulating the right to keep
arms.” Saul Cornell, Early American Gun Regulation and the Second Amendment: A Closer
Look at the Evidence, 25 L. & Hist. Rev. 197, 197 (2007). This division between using and
bearing arms further supports Ms. Orange’s claim, as nothing in the record indicates she fired or
even pointed her shotgun at anyone inside or outside of her home. The Bruen Court noted that
“[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the

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hands. During oral argument, the Commonwealth conceded that Orange is not dangerous and
that forgery of private documents was not a dangerous crime. See Oral Arg. at 24:25-26:30.
And yet, the majority furthers an argument that Orange is a dangerous person on the sole basis of
her Class 5 felony for forgery of a private document.
IV. Part of We the People
The only question that remains is whether Orange is covered by the plain text of the
Second Amendment—that is, if she is still one of “the people.” See U.S. Const. amend. II
(protecting the right of “the people to keep and bear arms”).75 Yes, she is. See Bruen, 597 U.S.
at 31-32 (establishing three questions to resolve whether the Second Amendment covers an
individual’s conduct: (1) whether the defendant is part of “‘the people’ whom the Second
Amendment protects”; (2) whether the weapon is in “common use”; and (3) whether the Second
Amendment protects the defendant’s “proposed course of conduct.”). The record does not show
that Orange used the firearm in a dangerous or uncommon way. She merely possessed it in her
home, where the need for defense “is most acute.” Heller, 554 U.S. at 628. See also Hemani,
225 L. Ed. 2d at 327 (prohibiting the disarmament of a man who used marijuana “about every
other day” and had not “done anything with his gun other than possess it in his home”). And a
right to keep and bear arms. . . .” Bruen, 597 U.S. at 32. However, considering the special
import of self-defense in the home as a principle of the Second Amendment, it is still worth
noting that Orange bore her shotgun inside her own home in rural Virginia.
75 Because it erred in its holding regarding the United States’s history and tradition of
disarmament, the majority has declined to rule on the question of whether Orange is part of “the
people” who are covered by the Second Amendment. However, there is a “strong presumption
that the Second Amendment . . . belongs to all Americans.” Heller, 554 U.S. at 581. The
Hemani Court reiterated that “[t]he Second Amendment protects the right of ‘all Americans’ to
keep and bear firearms for self-defense.” Hemani, 225 L. Ed. 2d at 322 (quoting Heller, 554
U.S. at 581). “[M]any courts, following Bruen’s expansive language . . . have concluded that
felons are embraced within ‘the people’ because the conduct of bearing arms for self-defense is
plainly protected by the Second Amendment.” Ginevan v. Commonwealth, 83 Va. App. 1, 20
(2024).

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shotgun is a commonly used “instrument[] that constitute[s a] bearable arm[].”76 Heller, 554
U.S. at 582.
In answering whether Orange is covered by the Second Amendment, the Commonwealth
argued below that those previously convicted of a Class 5 felony are not part of the people. My
colleagues, though declining to decide the issue, do go so far as suggesting that “conviction of a
felony is evidence of the unfitness of such persons as a class.” Supra (citing Foster v. Bd. of
Police Comm’rs, 102 Cal. 483, 492 (1894)). These arguments assume and ascribe
dangerousness onto Orange because of her felony-status. They do not—as required by the as-
applied standard—individually judge her, her history of violence, nor her behavior around
others.77 See Hemani, 225 L. Ed. 2d at 318-19 (detailing the government’s burden, in the context
of disarming drug users, to identify specific factors, such as “what controlled substance an
individual uses, in what amounts he does so, or whether his drug use has ever made him a danger
to himself or others”).
A. The Heller Presumption Does Not Compel Categorical Disarmament
Firearm regulations based solely on felony-status are constitutionally suspect, as they
deprive individuals of their civil right without looking to individual markers of risk. See
Hemani, 225 L. Ed. 2d at 323 (invalidating a federal statute allowing for disarmament of drug
76 See Heller, 554 U.S. at 622 (“[T]he Second Amendment confers an individual right to
keep and bear . . . only arms that ‘have some reasonable relationship to the preservation or
efficiency of a well[-]regulated militia . . . .’” (quoting United States v. Miller, 307 U.S. 174, 178
(1939))).
77 Not to mention that Congress has long recognized that firearm regulations cannot be
“designed or enforced” in a discriminatory manner. Bruen, 597 U.S. at 127 (2022) (Breyer, J.,
dissenting); Act of July 16, 1866, §14, 14 Stat. 176-177 (ensuring that all citizens are entitled to
the “full and equal benefit of all laws . . . including the constitutional right to bear arms . . .
without respect to race or color, or previous condition of slavery”).

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users because “that statute bans a class of people . . . from possessing essentially any firearm for
any purpose. As a result, the government acknowledges, it has a burden to carry”).
The Heller Court, in dicta, asserted that broad “prohibitions on the possession of firearms
by felons” were “longstanding” and declared them “presumptively lawful.” 554 U.S. at 627,
635. However, the Court expressly noted that it was not “clarify[ing] the entire field” of the
Second Amendment. Id.78 By definition, a presumption necessitates an inquiry into whether a
particular regulation could be unconstitutional as applied to specific litigants. And here,
Code § 18.2-308.2 is unconstitutional as applied to Orange. There is no history or tradition of
blanket disarmament on the sole basis of felony status.79 As discussed above, felony
disarmament did not become widespread until the 1970s. Felony status cannot itself be a sole
marker of individual dangerousness. The Supreme Court has acknowledged: “a felon is not
always more dangerous than a misdemeanant.” Lange v. California, 594 U.S. 295, 305 (2021)
(cleaned up); see, e.g., Code § 18.2-57.2 (misdemeanor assault and battery against a family
member).
To revoke one civil right creates a slippery slope for the revocation of other rights, solely
because a person has a felony on their record. We, as a court, should be wary any time our
government officials disregard a “class of persons” as irredeemable and, therefore, without
78 Additionally, the decision below, affirmed by Heller, noted that firearm regulations on
the basis of felony status “promote the government’s interest in public safety consistent with our
common law tradition” and “do not impair the core conduct upon which the right was premised,”
primarily self‐defense. Parker v. District of Columbia, 478 F.3d 370, 399-400 (D.C. Cir. 2007).
But, to support this proposition, the D.C. Circuit cited dicta from a 1980 case, Lewis v. United
States, 445 U.S. 55, 65 n.8 (1980), which Heller expressly criticized. Heller, 554 U.S. at 625 n.
25.
79 The first decision concerning a firearm regulation that depended “on the condition of a
person” was not until 1886, when the Missouri Supreme Court emphasized the ability to disarm
an alcoholic because he was a physical threat to others. See State v. Shelby, 2 S.W. 468 (Mo.
1886); Marshall, supra, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L.P.P. at 707.

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constitutional protections. Individuals convicted of nonviolent felonies like forgery of a private
document are not more or less deserving of Second Amendment protections as they are First and
Fourth Amendment protections. In Heller, in recognizing an individual right to bear arms, the
Supreme Court noted that “the Bill of Rights use[s] the phrase ‘right of the people’ two other
times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment's
Search-and-Seizure Clause.” 554 U.S. at 579. Accord Bruen, 597 U.S. at 24 (noting the Second
Amendment standard “accords with how we protect other constitutional rights,” including “the
freedom of speech in the First Amendment, to which Heller repeatedly compared the right to
keep and bear arms”).80
In the history of disarmament, as the majority acknowledges,81 this country has
discriminated against a great many people—on the basis of some minority status—painting them
as “inherently dangerous or non-law-abiding.” Zherka v. Bondi, 140 F.4th 68, 85 (2d Cir. 2025)
(“Religious minorities, political dissenters, Native Americans, and persons of color were among
the disfavored groups that historical legislatures disarmed based on a perception that persons in
those categories were inherently dangerous or non-law-abiding.”), cert. denied, 223 L. Ed. 2d
555 (2026). These categorical disarmament regulations are now disfavored. Id. And Rahimi
80 Further, like the First and Fourth Amendments, the Supreme Court has held that the
Second Amendment provides an individual right. Therefore, the Second Amendment is not to be
treated similarly to the right to vote or the right to jury service, notable civic rights. Felon
disenfranchisement laws have a long (albeit regrettable) history, and courts have interpreted the
Fourteenth Amendment’s protection of the right to vote as expressly acknowledging the authority
of state legislatures to enact such disenfranchisement laws. See U.S. Const. amend. XIV, § 2
(providing that a state’s representation in the House will be reduced if the right to vote “is denied
. . . or in any way abridged, except for participation in rebellion, or other crime”). The Second
Amendment contains no similar authority to abridge the right. See Heller, 554 U.S. at 579-80
(“[T]hese instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that
may be exercised only through participation in some corporate body.” (emphasis added)).
81 To the extent we are constructing a Constitutional analysis, surely it goes without
saying that this Court cannot support our inquiry with laws that have been expressly overturned.

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makes clear that citizens are not excluded from Second Amendment protections just because
they are not “responsible.” 602 U.S. at 701-02. The Commonwealth identified little authority
gracing the disarmament of Orange. And notable authority suggests that her disarmament,
hinging on the sole basis of her previous nonviolent felony, is constitutionally suspect.
B. Completing her Sentence Made Orange Law-Abiding and Therefore Covered by the
Second Amendment
Orange’s conduct should be covered by the Second Amendment because she is no longer
serving an active sentence or under state supervision. Therefore, her disarmament is unjustified.
As a result of the majority’s decision today, Orange will have another felony—possession of a
firearm by a person convicted of a felony—and will be forced to serve a year in prison for
conduct that those without felonies could have done freely. She completed her sentence for her
forgery conviction. She became a law-abiding citizen again.82 See Kanter, 919 F.3d at 462
(Barrett, J., dissenting) (“The obvious point that the dead enjoy no rights does not tell us what the
founding-era generation would have understood about the rights of felons who lived, discharged
their sentences, and returned to society.”).83
82 Orange could have had her rights restored, as she was eligible but had not yet applied.
But the restoration petition process is unimaginably complicated and, further, expensive, as a
successful petition almost requires the assistance of an attorney.
83 Completion of her sentence is an important factor here. For instance, incarcerated
individuals have neither a First Amendment right to peaceably assemble, see Pell v. Procunier,
417 U.S. 817, 822 (1974), nor a Fourth Amendment right as to prison-cell searches, Hudson v.
Palmer, 468 U.S. 517, 526 (1984). But those released from prison clearly are free to attend
protests, and their homes cannot be invaded without a search warrant. The history and tradition
of this country support applying the protections of the First and Fourth Amendment to the
Second Amendment. Founding-era laws that forfeited a person’s weapon almost always limited
that forfeiture to the specific weapon used to commit a firearms-related offense “without
affecting the perpetrator’s right to keep and bear arms generally.” Range, 124 F.4th at 231. See,
e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343-344; Act of Apr. 20, 1745, ch. 3, N.C. Laws
69-70. So, “in the Founding era, a felon could acquire arms after completing his sentence and
reintegrating into society.” Range, 124 F.4th at 231.

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The majority lambasts Orange for having a felony on her record, making a broad claim
that disarming her is “justified by the need to adequately punish felons, deter reoffending, and
protect society from those proven untrustworthy to follow the law.” Supra (quoting Diaz, 116
F.4th at 469). Not only does the majority’s position fly in the face of restorative justice, but it
could also jeopardize public safety. See, e.g., Amber Massey, An Eye for an Eye Will Make the
Whole World Blind: How Restorative Justice Will Help Florida See Again, 43 Nova L. Rev. 79
(2018) (detailing how restorative justice policies benefit all of society by allowing previously
convicted persons to redress, atone, and reintegrate into their communities, thereby reducing
recidivism rates); Charlotte Whelan, The Importance of Prison Rehabilitation Programs Before
and After Release, Indep. Women’s F. (June 29, 2020), https://www.iwf.org/2020/06/29/the-
importance-of-prison-rehabilitation-programs-before-and-after-release/ (similar). Following the
argument to its logical conclusion, from a practical perspective, if a person with a felony
conviction is relegated to a marginalized legal status, what kind of incentives will they have to
rehabilitate? Suppose Ms. Orange has made sacrifices and pushed herself to reform in the years
since her forgery conviction.84 Ignoring her efforts to repay her community, her government
today continues to treat her as a “criminal” regardless of any redemptive behavior she might
have displayed. As a response to the majority’s opinion, surely no one could blame her for
asking herself, “Why change if it will not matter?” In this way, today’s decision risks
detrimental effects to the state’s efforts to fight recidivism with rehabilitation.
Because she completed her sentence, we should take Orange as the state would take
anyone who similarly uses a firearm: as a person with the right to bear, so long as she did not
harm someone else. Instead, we force her into a category of otherness, refusing to analyze her
84 The record does not indicate what sentence Orange received, only that she was no
longer actively serving it. She was subject to up to one year in jail or prison. See Code
§ 18.2-10.

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individual markers for dangerousness, merely because her rights had not yet been restored—
though she was eligible for restoration.85 Now she will go to prison. With this new firearm
charge, she will be considered a violent felon who cannot bear a shotgun in her home, vote,
receive federal student aid, apply for federal housing, or obtain government benefits like the
Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) in the middle
of her child-bearing years.
Ms. Orange has already paid her debt to society and no longer shows signs of violence.
People grow with time and the maturity it brings. At only 25 years old, I believe Orange is
bound to be one of them. With this solid conviction, I respectfully dissent.
85 The record makes no mention of whether Orange did in fact apply for her rights to be
restored. I make this point merely to highlight the very real possibility, and the endless hurdles,
that many people previously convicted of a felony face every day.