April 16, 2025- State of New Mexico v. Jeremy Romero, No. A-1-CA-41601

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: April 16, 2025	3
No. A-1-CA-41601	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JEREMY ROMERO a/k/a JEREMY	8
EXAVIER ROMERO,	9
Defendant-Appellant.	10
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	11
Brett R. Loveless, District Court Judge	12
Raúl Torrez, Attorney General	13
Santa Fe, NM	14
Van Snow, Deputy Solicitor General	15
Michael J. Thomas, Assistant Solicitor General	16
Albuquerque, NM	17
for Appellee	18
Bennett J. Baur, Chief Public Defender	19
Mary Barket, Assistant Appellate Defender	20
Santa Fe, NM	21
for Appellant	22
Court of Appeals of New Mexico
Filed 4/16/2025 12:37 PM

OPINION	1
WRAY, Judge.	2
{1} 	New Mexico’s felon in possession of a firearm statute, NMSA 1978, § 30-7-	3
16(A)(1) (2022), makes it a crime to possess a firearm if, in relevant part, less than	4
ten years have passed since the completion of a sentence or period of probation for	5
a prior felony conviction. Section 30-7-16(E)(3)(a). Defendant Jeremy Romero	6
appeals his conviction for being a felon in possession of a firearm and argues that	7
the statute cannot be enforced against him––or any other felon––consistent with the	8
Second Amendment to the United States Constitution and the analytical framework	9
set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).	10
Assuming that the protections of the Second Amendment apply to Defendant, we	11
conclude that our Nation’s historical traditions, together with the district court’s	12
findings that Defendant is a danger or poses a risk to public safety, support imposing	13
a criminal penalty for Defendant’s possession of a firearm. We therefore affirm the	14
district court.	15
BACKGROUND	16
{2} 	Two Albuquerque Police Department officers lawfully approached Defendant	17
at a gas station at 1:30 a.m. in order to detain him. Defendant fled from the gas station	18
on foot. When the officers apprehended him, they recovered a loaded semi-	19
automatic 9mm handgun from his pocket. In relevant part, the State charged	20

2
Defendant with one count of possession of firearm by a felon, contrary to Section	1
30-7-16(A)(1), and one count of resisting, evading or obstructing an officer, contrary	2
to NMSA 1978, Section 30-22-1(B) (1981). A jury convicted Defendant on both	3
counts, and the district court sentenced him to a term of eleven years in prison with	4
three years suspended.	5
{3} 	After sentencing, Defendant filed a motion to vacate the portion of his	6
sentence imposed for violating Section 30-7-16(A)(1). See NMSA 1978, § 31-11-6	7
(1966) (allowing a prisoner who is “claiming the right to be released upon the ground	8
that the sentence was imposed in violation of the [C]onstitution of the United States”	9
to “move the court which imposed the sentence to vacate . . . the sentence”). Relying	10
on the United States Supreme Court’s decision in Bruen, Defendant argued that	11
“[f]elons are not categorically excluded from the protections of the Constitution, and	12
the State cannot meet its burden to show a historical tradition of disarming felons.”	13
See Bruen, 597 U.S. at 17, 24 (requiring that any challenged regulation of Second	14
Amendment conduct be “consistent with this Nation’s historical tradition”). In	15
response, the State asserted that it was “not required to engage in a historical analysis	16
to support the constitutional authority of prohibit[ing] felons from possessing	17
firearms.” The district 	court held 	a hearing on 	Defendant’s 	motion 	but 	the	18
Department of Corrections was not able to make Defendant available for the setting.	19
Rather than rescheduling the hearing, the State and Defendant’s counsel agreed that	20

3
the district court could issue a ruling on the motion without further argument or	1
evidence. The district court then issued an order denying Defendant’s motion.	2
{4} 	In that order, the district court determined that the Constitution presumptively	3
protects 	Defendant’s 	conduct 	and 	noted 	the 	apparent 	absence 	of 	“historical	4
regulations specifically banning all felons from possessing firearms.” Nevertheless,	5
the district court observed that Bruen “recognized that historical analogies will often	6
be necessary to analyze modern regulations,” particularly “when analyzing long	7
persisting societal problems.” The district court concluded that precedents from the	8
United States Supreme Court and multiple other jurisdictions, as well as secondary	9
sources, support a conclusion that “there is a rich history of disarming those deemed	10
likely to disrupt society or pose a threat to public safety.” Having outlined a legal	11
framework, the district court proceeded to find that (1) Defendant “is a repeat	12
offender with convictions for distribution of a controlled substance, possession of a	13
controlled substance, and escape from a community custody release program”; (2)	14
“[t]he combination of guns and drugs presents obvious danger and risk of violent	15
behavior”; and (3) “[t]his criminal background demonstrates that Defendant’s	16
possession of a gun poses a risk to public safety.” As a result, the district court	17
concluded that Section 30-7-16(A)(1) is constitutional “both facially and as applied	18
to Defendant” because “the regulation of the right to bear arms by those who pose a	19

4
threat to society is deeply rooted in the Nation’s historical traditions.” Defendant	1
appeals.	2
DISCUSSION	3
{5} 	As he did in the district court, Defendant invokes the protections of the Second	4
Amendment to raise as-applied and facial challenges to the constitutionality of	5
Section 30-7-16(A)(1). In an as-applied challenge, “the challenging party contests	6
only how the statute was applied against [them] within a particular context.” State v.	7
Gutierrez, 2020-NMCA-045, ¶ 29, 472 P.3d 1260 (omission, alteration, internal	8
quotation marks, and citation omitted), rev’d on other grounds, 2023-NMSC-002,	9
¶ 2, 523 P.3d 560. As a result, “the facts of the challenging party’s particular case	10
are relevant in an as-applied challenge.” Id. A facial challenge, in contrast, raises the	11
question of “whether there is any potential set of facts to which the statute can be	12
constitutionally applied.” State v. Murillo, 2015-NMCA-046, ¶ 4, 347 P.3d 284. In	13
the present case, we focus on Defendant’s as-applied challenge. See Bd. of Trs. of	14
State Univ. of N. Y. v. Fox, 492 U.S. 469, 485 (1989) (“[F]or reasons relating both	15
to the proper functioning of courts and to their efficiency, the lawfulness of the	16
particular application of the law should ordinarily be decided first.”). Our review of	17
the district court’s interpretation of statutes and constitutional provisions is de novo.	18
See Pacheco v. Hudson, 2018-NMSC-022, ¶ 24, 415 P.3d 505. This review begins	19
with the Second Amendment.	20

5
{6} 	The plain text of the Second Amendment reads: “A well regulated Militia,	1
being necessary to the security of a free State, the right of the people to keep and	2
bear 	arms, 	shall 	not 	be 	infringed.” 	U.S. 	Const. 	amend. 	II. 	This 	language	3
“guarantee[s] 	the 	individual 	right 	to 	possess 	and 	carry 	weapons 	in 	case 	of	4
confrontation,” Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008), and is “fully	5
applicable to the States” through the Due Process Clause of the Fourteenth	6
Amendment, McDonald v. City of Chicago, 561 U.S. 742, 750, 791 (2010). As is	7
relevant 	to 	this 	case, 	“the 	Second 	and 	Fourteenth 	Amendments 	protect 	an	8
individual’s right to carry a handgun for self-defense outside the home.” Bruen, 597	9
U.S. at 10. After Heller and McDonald, other courts employed a “means-end”	10
analysis to determine whether firearms regulations violated the Second Amendment.	11
Bruen, 597 U.S. at 17. The government was first required to justify the regulation of	12
the right to possess a firearm according to “the scope of the right as originally	13
understood” and then a level of constitutional scrutiny was applied based on “how	14
close the law [came] to the core of the Second Amendment right and the severity of	15
the law’s burden on that right.” Id. at 18 (internal quotation marks and citation	16
omitted); cf. Murillo, 2015-NMCA-046, ¶ 13 (considering whether NMSA 1978,	17
Section 30-7-8 (1963) violated Article VI, Section 2 of the New Mexico Constitution	18
“through the lens of intermediate scrutiny”).	19

6
{7} 	In Bruen, the United States Supreme Court “established a new historical	1
paradigm for analyzing Second Amendment claims.” United States v. Diaz, 116	2
F.4th 458, 465 (5th Cir. 2024). After rejecting the previously predominant means-	3
ends test, 597 U.S. at 17, the Bruen Court articulated the new framework as follows:	4
When the Second Amendment’s plain text covers an individual’s	5
conduct, the Constitution presumptively protects that conduct. The	6
government must then justify its regulation by demonstrating that it is	7
consistent with the Nation’s historical tradition of firearm regulation.	8
Only then may a court conclude that the individual’s conduct falls	9
outside the Second Amendment’s unqualified command.	10
Id. at 24 (internal quotation marks and citation omitted). The historical inquiry	11
“involve[s] reasoning by analogy” to “determin[e] whether a historical regulation is	12
a proper analogue for a distinctly modern firearm regulation.” Id. at 28-29. This	13
framework, the Bruen Court explained, captured the Heller and McDonald Courts’	14
focus: “how and why the regulations burden a law-abiding citizen’s right to armed	15
self-defense.” Id. at 29. As a result, for the historical analysis, “whether modern and	16
historical regulations impose a comparable burden on the right of armed self-defense	17
and whether that burden is comparably justified are central considerations when	18
engaging in an analogical inquiry.” Id. (internal quotation marks and citation	19
omitted). Despite the Bruen Court’s detailed explanation of the new framework,	20
however, courts continued to struggle with evaluating the constitutionality of firearm	21
regulations. See United States v. Rahimi, 602 U.S. 680, 708 (2024) (Sotomayor, J.,	22
concurring) (suggesting that the Court’s opinion “offers a more helpful model than	23

7
the dissent for lower courts struggling to apply Bruen”); id. at 736 (Kavanaugh, J.,	1
concurring) (“Second Amendment jurisprudence is still in the relatively early	2
innings. . . . Deciding constitutional cases in a still-developing area of this Court’s	3
jurisprudence can sometimes be difficult.”); id. at 739 (Barrett, J., concurring)	4
(explaining that history should be used to “determin[e] the scope of the pre-existing	5
right” and acknowledging that “[c]ourts have struggled with this use of history in	6
the wake of Bruen”); id. at 741 (Jackson, J., concurring) (“Today’s effort to clear up	7
misunderstandings is a tacit admission that lower courts are struggling.” (alteration,	8
internal quotation marks, and citation omitted)).	9
{8} 	Attempting to address the fact that “some courts have misunderstood the	10
methodology of our recent Second Amendment cases,” in Rahimi, the Supreme	11
Court explained that “the appropriate analysis involves considering whether the	12
challenged regulation is consistent with the principles that underpin our regulatory	13
tradition.” Id. at 691-92. The Rahimi Court reiterated that “[w]hy and how the	14
regulation burdens the right are central to this inquiry” and explained that in order	15
to be sufficiently analogous to the historic regulation of firearms—and therefore “to	16
pass 	constitutional 	muster”—the 	modern 	regulation 	at 	issue 	must 	operate	17
consistently with the historical regulation’s purpose and scope. Id. at 692 (internal	18
quotation marks and citation omitted). To be constitutional, in other words, Section	19
30-7-16(A)(1) 	“must 	comport 	with 	the 	principles 	underlying 	the 	Second	20

8
Amendment, but it need not be a dead ringer or a historical twin.” See Rahimi, 602	1
U.S. at 692 (internal quotation marks and citation omitted).	2
{9} 	Despite these clarifications by the Rahimi Court, a federal circuit court split	3
has 	developed 	concerning 	how 	to 	apply 	prior 	precedent 	to 	determine 	the	4
constitutionality of the federal felon in possession of a firearm statute, 18 U.S.C.	5
§ 922(g)(1). Compare United States v. Williams, 113 F.4th 637, 646 (6th Cir. 2024)	6
(concluding that Bruen and Rahimi abrogated prior circuit court precedent); Range	7
v. Att’y Gen. U.S., 124 F.4th 218, 225-26 (3d Cir. 2024) (relying on Bruen alone to	8
abrogate prior precedent after the Supreme Court vacated the court’s prior en banc	9
opinion and remanded for further consideration in light of Rahimi), and Diaz, 116	10
F.4th at 465 (5th Cir. 2024) (explaining, after Rahimi, that Bruen abrogated prior	11
precedent), with Vincent v. Bondi, 127 F.4th 1263, 1265-66 (10th Cir. 2025)	12
(concluding that Rahimi did not abrogate prior circuit court precedent and noting, on	13
remand from the Supreme Court, that “our sole task is to consider the effect of	14
Rahimi”); United States v. Hunt, 123 F.4th 697, 702-04 (4th Cir. 2024) (concluding	15
that neither Rahimi nor Bruen abrogated prior circuit court precedent); United States	16
v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024) (same), and United States v. Hester,	17
No. 23-11938, 2024 WL 4100901, at *1 (11th Cir. Sept. 6, 2024) (per curiam)	18
(nonprecedential) (same).	19

9
{10} 	The circuit court split and the parties’ arguments on appeal implicate one	1
unsettled issue in particular—how to determine whether the regulated conduct falls	2
within the plain text of the Second Amendment. See Bruen, 597 U.S. at 24	3
(identifying as one inquiry whether the “plain text” of the Second Amendment	4
“covers [an] individual’s conduct”).0F
1 Some courts conclude the analysis at that	5
stage, before reaching the history and tradition inquiry, based on two oft-repeated	6
statements from the Heller decision: (1) the “assurance” that felon-in-possession	7
laws are “longstanding” and “presumptively lawful,” see 554 U.S. at 626-27 n.26;	8
and/or (2) the “limitations” on the Second Amendment right inferred from the Heller	9
Court’s reference to “the right of law-abiding, responsible citizens to use arms in	10
1 In some instances, the Bruen test is clearly articulated in two parts. See
Rahimi, 602 U.S. at 744 (Jackson, J., concurring) (noting that although Bruen
rejected the predominant “two-step approach as having one step too many, the Bruen
majority subbed in another two-step evaluation” (internal quotation marks and
citation omitted)); id. at 751 (Thomas, J., dissenting) (“[W]e must resolve two
questions to determine if § 922(g)(8) violates the Second Amendment.”). In others,
some articulation of a single historical question either predominates or controls. See
id. at 718 n.2, 734 (Kavanaugh, J., concurring) (stating that “[t]he historical approach
applies when the text is vague” and “history tends to narrow the range of possible
meanings that may be ascribed to vague constitutional language”); id. at 711
(Gorsuch, J., concurring) (explaining that “if reasonable minds can disagree whether
§ 922(g)(8) is analogous to past practices originally understood to fall outside the
Second Amendment’s scope, we at least agree that is the only proper question a court
may ask”); see also Diaz, 116 F.4th at 466-67 (“As in Rahimi, the ‘two-step’ view
of Bruen is effectively collapsed into one question: whether the law is consistent
with our Nation’s history of firearm regulation.”); United States v. Charles, 633 F.
Supp. 3d 874, 877 (W.D. Tex. 2022) (explaining, before Rahimi, that “Bruen’s first
step asks a strictly textual question with only one answer: the Second Amendment’s
plain text covers possession of a firearm”).

10
defense of hearth and home,” id. at 635 (emphasis added).1F
2 Other courts decline to	1
interpret Bruen or Rahimi to abrogate circuit-court precedent that relied on the Heller	2
assurances and/or limitations.2F
3 Still other courts have interpreted Heller, Bruen,	3
and/or Rahimi to mean that the Second Amendment protects all those who are	4
considered “the people,” and those courts go on to analyze either historical evidence	5
or precedent that itself analyzes historical documents.3F
4 Given the relatively recent	6
2See, e.g., People v. Alexander, 308 Cal. Rptr.3d 380, 385 (Ct. App. 2023)
(concluding that the defendant’s Second Amendment challenges to California’s
felon in possession of a firearm law “fail under the first step of Bruen’s analytical
framework” because “only law-abiding citizens are included among ‘the people’
whose right to bear arms is protected by the Second Amendment”); People v.
Mobley, 2023 IL App (1st) 221264, ¶ 28 (holding that a defendant challenging
Illinois’ unlawful use of a weapon by a felon statute “cannot appeal to the Bruen test
to argue that [a] statute is unconstitutional as applied” because “the test only applies
when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
3See, e.g., Hunt, 123 F.4th at 703 (concluding that Rahimi and Bruen “can be
read harmoniously” with “previous decisions rejecting as-applied challenges to
Section 922(g)(1)” because those previous decisions relied on both the Heller
assurances and Heller’s limitation of the right to “law-abiding, responsible citizens”
(internal quotation marks and citations omitted)); Jackson, 110 F.4th at 1125
(concluding that “there is no need for felony-by-felony litigation regarding the
constitutionality of § 922(g)(1)” because of the Heller Court’s assurances and
because Bruen “did not disturb those statements or cast doubt on the prohibitions”);
Bondi, 127 F.4th at 1265 (concluding that Rahimi “doesn’t clearly abrogate the
presumptive validity of § 922(g)(1)” because circuit precedent “relied on Heller’s
instruction that felon dispossession laws are presumptively valid” and “Rahimi again
recognized the presumptive lawfulness of these longstanding prohibitions”; Hester,
2024 WL 4100901, at *1 (concluding that “Rahimi did not discuss section 922(g)(1)
or undermine our interpretation of Heller” but instead “reiterated that prohibitions
on the possession of firearms by felons and the mentally ill, are presumptively
lawful” (internal quotation marks and citation omitted)).
4 See, 	e.g., 	Williams, 	113 	F.4th 	at 	649-50 	(“On 	balance, 	the 	Second
Amendment’s plain text presumptively protects [the defendant]’s conduct. [The

11
application of the Second Amendment to the states and the ensuing developments in	1
the law, this Court has not yet had occasion to consider these issues, and the State	2
and Defendant disagree about whether the plain text covers Defendant’s right to bear	3
arms under the circumstances.4F
5 We need not, however, select among these different	4
defendant] is a member of the people claiming ‘the right’ to possess a gun––to ‘keep
and bear arms.’ Section 922(g)(1) burdens that right. The question becomes whether
that burden is consistent with the principles underpinning our historical tradition of
regulating firearms.” (citations omitted)); Range, 124 F.4th at 228 (explaining that
“Heller and its progeny lead us to conclude that [the defendant] remains among ‘the
people’ despite his 1995 false statement conviction” and considering “whether the
Government has shown that applying § 922(g)(1) to [the defendant] would be
consistent with the Nation’s historical tradition of firearm regulation” (internal
quotation marks and citation omitted)).
5 We note that in Diaz yet another view of Bruen and Rahimi emerged. The
Fifth Circuit determined that the Second Amendment covered the conduct that was
regulated by the statute, possession of a firearm, by comparing the text of the Second
Amendment to the text of the statute. See Diaz, 116 F.4th at 467 (“The plain text of
the Second Amendment covers the conduct prohibited by § 922(g)(1), as it does with
that of § 922(g)(8)” (citing Rahimi, 602 U.S. at 708 (Gorsuch, J., concurring)).
Similarly, in United States v. Bullock, a federal district court interpreted Bruen’s first
step to require an inquiry into whether the plain text of the Second Amendment
covers the conduct regulated by the challenged statute, and “not the status of the
person performing the conduct.” 679 F. Supp. 3d 501, 525 (S.D. Miss. 2023)
(internal quotation marks and citation omitted), rev’d and remanded on other
grounds, 123 F.4th 183 (5th Cir. 2024). In this view, if the challenged statute
regulates firearm possession, the first step of Bruen is satisfied and the plain text of
the Second Amendment covers the conduct at issue. In Rahimi, at least one Justice
seemed to use this approach. See 602 U.S. at 708 (Gorsuch, J., concurring) (“In this
case, no one questions that the law [the defendant] challenges addresses individual
conduct covered by the text of the Second Amendment.”); cf. id. at 751-52 (Thomas,
J., dissenting) (explaining that “[i]t is undisputed that § 922(g)(8) targets conduct
encompassed by the Second Amendment’s plain text” but also observing “[i]t is also
undisputed that the Second Amendment applies to [the defendant]” because he “is a
member of the political community”).

12
approaches to determine whether Defendant met the burden to show that the plain	1
text of the Second Amendment covers the conduct—the possession of a firearm by	2
a felon. Instead, we assume as much and consider whether enforcing Section 30-7-	3
16(A)(1) against him is consistent with our Nation’s historical tradition of firearm	4
regulation. See United States v. Quiroz, 125 F.4th 713, 717 (5th Cir. 2025) (assuming	5
“arguendo that the plain text of the Second Amendment covers [the defendant and	6
the defendant’s] conduct” in order to “turn our attention to the historical analysis”);	7
United States v. Gore, 118 F.4th 808, 812 (6th Cir. 2024) (“Whether or not the	8
Second Amendment’s plain text covers stolen firearms, § 922(j)’s prohibition is	9
constitutional because it is consistent with our nation’s regulatory traditions.”); see	10
also United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012) (noting	11
that an “apparent inconsistency in assuming the existence of a right before sustaining	12
a law that acts as a blanket prohibition” is “outweighed by the prudence of abstaining	13
on a question of such far-reaching dimensions” on an uncertain record).	14
{11} 	As we have noted, Defendant’s arguments on appeal require us to apply the	15
text-and-history framework for analyzing Second Amendment challenges initiated	16
by Heller and formalized in Bruen. Defendant focuses on the absence of any	17
historical “categorical ban on felons possessing firearms.” With a single citation to	18
a law review article, the State argues that “typically, if not invariably” felons are	19
“dangerous, and can be prohibited from possessing firearms on that basis alone,	20

13
without a minutiae-like examination of one particular defendant’s criminal dossier	1
versus that of another defendant.” In reply, Defendant points out that “the State has	2
presented no historical analogues akin to the firearm restriction in this case” and	3
relies on the historical analysis in United States v. Duarte, 101 F.4th 657 (9th Cir.	4
2024), rehearing en banc granted, vacated, 108 F.4th 786 (9th Cir. 2024),5F
6 to argue	5
that Defendant’s conviction is unconstitutional because none of the “many analogues	6
cited by the [g]overnment [in Duarte] . . . were distinctly similar to a blanket ban on	7
firearms that covers violent and nonviolent offenders alike.” The record before us	8
contains little evidence supporting the State’s (or Defendant’s) view of the statute or	9
the circumstances. See United States v. Bullock, 679 F. Supp. 3d 501, 519-22 (S.D.	10
Miss. 2023) (expressing concern that in Second Amendment cases after Bruen,	11
“[n]one of the history is tested in an adversarial proceeding” and as a result, “[t]he	12
appellate courts do the best with the briefs they have, but all that matters is the	13
Supreme Court’s historical review, conducted de novo as a legal rather than a factual	14
question, with dozens of amicus briefs never before seen by another court” (internal	15
quotation marks and citation omitted). As a result, the district court relied on facts	16
existing in the court record and persuasive legal authority to rule that Section 30-7-	17
6 Briefing in the present case was completed before Rahimi was filed and
therefore before Duarte was vacated. Given the rapid development of this area of
the law, the Court gave the parties an opportunity to address both Rahimi and
subsequently decided cases at oral argument.

14
16(A)(1) is constitutional “both facially and as-applied to Defendant” because “the	1
regulation of the right to bear arms by those who pose a threat to society is deeply	2
rooted in the Nation’s historical traditions.”	3
{12} 	We first consider the district court’s legal conclusion that the Legislature’s	4
categorical restriction on firearm possession in Section 30-7-16(A)(1)—prohibiting	5
felons as a class from firearm possession—is consistent with the purpose and scope	6
of comparable historical analogues. The district court relied on the extensive	7
historical analyses of firearm regulation that were conducted in United States v.	8
Goins, 647 F. Supp. 3d 538 (E.D. Ky. 2022), aff’d, 118 F.4th 794 (6th Cir. 2024),	9
and then-Judge Barrett’s dissenting opinion in Kanter v. Barr, 919 F.3d 437 (7th Cir.	10
2019), majority opinion abrogated by Bruen, 597 U.S. 1. The Goins Court noted that	11
during the founding era, legislatures disarmed various groups “that they determined	12
‘to pose immediate threats to public safety and stability.’” 647 F. Supp. 3d. at 552	13
(quoting Kanter, 919 F.3d at 458 (Barrett, J., dissenting)). A growing number of	14
appellate courts have concluded that with regard to the categorical prohibition of	15
firearm possession, “[a]s an original matter, the Second Amendment’s touchstone is	16
dangerousness.” Folajtar v. Att’y Gen. U.S., 980 F.3d 897, 924 (3d Cir. 2020)	17
(Bibas, J., dissenting), abrogation of majority opinion recognized by Range,124	18
F.4th at 225; see also Kanter, 919 F.3d at 451 (Barrett, J., dissenting) (“History is	19
consistent with common sense: it demonstrates that legislatures have the power to	20

15
prohibit dangerous people from possessing guns.”); Williams, 113 F.4th at 657	1
(“[O]ur nation’s history and tradition demonstrate that Congress may disarm	2
individuals they believe are dangerous.”); Jackson, 110 F.4th at 1128 (“Legislatures	3
historically prohibited possession [of arms] by categories of persons based on a	4
conclusion that the category as a whole presented an unacceptable risk of danger if	5
armed.”); Goins, 647 F. Supp. 3d at 554 (“Simply put, the history and tradition	6
relevant to the Second Amendment support Congress’s power to disarm those that	7
it deems dangerous.”).	8
{13} 	These sources begin to trace a thread of the historical regulation of firearm	9
possession but after Rahimi, we also consider a separate thread of historical firearm	10
regulations considered by that Court. The modern statute addressed in Rahimi	11
“prohibits an individual subject to a domestic violence restraining order from	12
possessing a firearm if that order includes a finding that” the subject “‘represents a	13
credible threat to the physical safety of an intimate partner.’” Rahimi, 602 U.S. at	14
684-85 (quoting § 922(g)(8)). For its historical analysis, the Rahimi Court examined	15
“surety” and “going armed” laws, which directly “targeted” conduct involving “the	16
misuse of firearms.” Id. at 696-98. Surety laws did so by restricting, in advance of	17
any misuse, a specific person’s firearm possession after a complaint “by ‘any person	18
having reasonable cause to fear’ that the accused [person] would do [them] harm or	19
breach the peace.” Id. (quoting Mass. Rev. Stat., ch. 134, §§ 1, 16 (1836)). On an	20

16
evidentiary showing that “cause existed for the charge,” the magistrate would	1
“summon the accused, who could respond to the allegations.” Id. at 697 (citing Mass.	2
Rev. Stat., ch. 134, §§ 3-4). The going armed laws targeted the misuse of firearms	3
after the fact, by “provid[ing] a mechanism for punishing those who had menaced	4
others with firearms,” and like the class-based, categorical thread of firearm	5
regulations, “traced their origin to the Statute of Northampton.” Id. (citing Statute of	6
Northampton, 2 Edw. 3 c. 3 (1328)); see also Goins, 647 F. Supp. 3d at 551-52	7
(noting the same historical origins for the categorical restrictions); Kanter, 919 F.3d	8
at 456 n.4 (Barrett, J., dissenting) (same). Thus, rather than making categorical	9
restrictions based on characteristics common to a particular group, the Rahimi Court	10
turned to conduct-based historical restrictions and ultimately concluded that “[a]n	11
individual found by a court to pose a credible threat to the physical safety of	12
another,”—a finding required by § 922(g)(8)—“may be temporarily disarmed	13
consistent with the Second Amendment.” 602 U.S. at 702.	14
{14} 	At oral argument, Defendant argued that the Rahimi Court’s holding was	15
“very narrow” and “does not significantly alter the analysis of the primary issues in	16
this case.” Defendant also maintained that historical categorical prohibitions on	17
firearm possession were insufficiently analogous to Section 30-7-16(A)(1) because	18
the historical laws did not target groups like “felons” who had committed certain	19
crimes but instead had the justification of preventing armed rebellion or existential	20

17
threats to the stability of the government. See Rahimi, 602 U.S. at 755, 776 (Thomas,	1
J., dissenting). This argument implicates the “how and why” analysis for historical	2
analogues that is articulated in Bruen. 597 U.S. at 29. Specifically, Bruen directs that	3
we consider “whether modern and historical regulations impose a comparable	4
burden on the right of armed self-defense and whether that burden is comparably	5
justified.” Id.	6
{15} 	The Rahimi Court, however, read the historical surety and going armed laws	7
together to “confirm what common sense suggests: When an individual poses a clear	8
threat of physical violence to another, the threatening individual may be disarmed.”	9
602 U.S. at 698 (citing § 922(g)(8)). In dissent, Justice Thomas criticized the Rahimi	10
Court for “mixing and matching historical laws—relying on one law’s burden and	11
another law’s justification,” and argued that such an approach “defeats the purpose	12
of a historical inquiry altogether.” Id. at 772 (Thomas, J., dissenting). Although we	13
agree that this approach appears to favor the justification (the “why”) over the burden	14
(the “how”), the principle that indisputably emerged from the Rahimi Court’s	15
analysis is that § 922(g)(8)’s “prohibition on the possession of firearms by those	16
found by a court to present a threat to others fits neatly within the tradition the surety	17
and going armed laws represent.” Id. at 698.6F
7 This principle is consistent with the	18
7 Reliance on the Rahimi principle, as it fits with the how and why that
underpin Section 30-7-16(A)(1), also permits this Court to turn away from reliance
on the historical categorical restrictions that we have discussed. As we have

18
burden imposed by and the justification for Section 30-7-16(A)(1), and we see no	1
reason to apply a different principle in the present case. For these reasons, we affirm	2
the district court’s legal conclusion that “there is a rich history of disarming those	3
deemed likely to disrupt society or pose a threat to public safety.”	4
{16} 	This conclusion leaves the question whether Defendant posed a threat to	5
public safety such that Section 30-7-16(A)(1) can be constitutionally enforced	6
against him. To evaluate this question precisely, we consider the circumstances in	7
the context of the shifting constitutional presumptions and burdens. Initially, the	8
party challenging a statute has the burden to overcome “the strong presumption of	9
constitutionality.” See State v. Anderson, 2021-NMCA-031, ¶ 8, 493 P.3d 434	10
(internal quotation marks and citation omitted). That burden aligns with Defendant’s	11
observed, that regulatory tradition began with the Statute of Northampton in 14th
century England and continued through the Military Act of 1662, the English Bill of
Rights of 1689, Parliament’s disarming of Catholics during the precolonial period,
and “[s]imilarly shameful disarmament policies carried over to the colonies.” Goins,
647 F. Supp. 3d at 551-52. Indeed, “before and after the revolutionary war, states
disarmed slaves and Native Americans” and “some states even constitutionalized
these 	ignominious 	practices” 	because 	states 	feared 	“that 	slaves 	and 	Native
Americans would use guns to revolt.” Id. at 552. These laws “represent [part of] a
historic tradition of disarming groups that the legislature views as threatening the
public safety,” see id. (alteration, internal quotation marks, and citation omitted), but
“[i]t 	should 	go 	without 	saying 	that 	such 	race-based 	exclusions 	would 	be
unconstitutional today,” 	Kanter, 919 F.3d at 458 n.7 (Barrett, J., dissenting).
Complete 	reliance 	on 	a 	historical 	traditional 	of 	categorical 	restrictions 	on
individuals’ rights at this juncture would be unnecessary and ill-advised. See Rahimi,
602 U.S. at 776 (Thomas, J., dissenting) (noting that the historical categorical laws
are “cautionary tales” and “warn that when majoritarian interests alone dictate who
is ‘dangerous,’ and thus can be disarmed, disfavored groups become easy prey”).

19
burden under Bruen to show that the plain text of the Second Amendment covers the	1
conduct. See 597 U.S. at 17, 24. We have assumed without deciding that Defendant	2
met that burden. As a result, the constitutional presumption and the burden to	3
overcome that presumption shifted. At this stage, we presume Section 30-7-16(A)(1)	4
is unconstitutional, and the burden shifts to the State to “justify its regulation by	5
demonstrating that it is consistent with the Nation’s historical tradition of firearm	6
regulation.” See Bruen, 597 U.S. at 24; Rahimi 602 U.S. at 691 (same) (internal	7
quotation marks and citation omitted); see also United States v. Carolene Prods.	8
Co., 304 U.S. 144, 152 n.4 (1938) (noting that “[t]here may be narrower scope for	9
operation of the presumption of constitutionality when legislation appears on its face	10
to be within a specific prohibition of the Constitution, such as those of the first ten	11
Amendments”). The district court determined that the State met that burden based	12
on the evidence of Defendant’s prior felony convictions for distribution of a	13
controlled substance, possession of a controlled substance, and escape from a	14
community custody release program. We agree, based on Bruen and Rahimi, that	15
this evidence demonstrated that the enforcement of Section 30-7-16(A)(1) against	16
Defendant is consistent with “the Nation’s historical tradition of firearm regulation,”	17
see Bruen, 597 U.S. at 24, because Defendant “present[ed] a threat to others,” see	18
Rahimi, 602 U.S. at 698; see also Williams, 113 F.4th at 663 (explaining that a	19
person convicted of “a crime that inherently poses a significant threat of danger,	20

20
including (but not limited to) drug trafficking and burglary” can be disarmed	1
consistent with the Second Amendment because such an individual “will have a very	2
difficult time, to say the least, of showing [they are] not dangerous”).	3
{17} 	Defendant did not contest the bare but sufficient facts that were contained in	4
the documents reviewed by the district court, and on appeal, the burden shifted one	5
more time. See Williams, 113 F.4th at 661-62 (explaining that “a class-wide	6
disarmament of felons . . . is constitutional as it applies to dangerous individuals”	7
because “[h]istory shows that governments may use class-based legislation to disarm	8
people it believes are dangerous, so long as members of that class have an	9
opportunity to show they aren’t” (emphasis added)); State v. Aragon, 1999-NMCA-	10
060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (explaining that “[t]here is a presumption	11
of correctness in the district court’s rulings,” and the appellant therefore bears the	12
“burden on appeal to demonstrate any claimed error below” (alterations, internal	13
quotation marks, and citation omitted)). Because Defendant sets forth no specific	14
attack on the district court’s factual findings, they are deemed to be conclusive as to	15
Defendant’s dangerousness. See Rule 12-318(A)(4) NMRA.	16
{18} 	As 	a 	result, 	we 	uphold 	Section 	30-7-16(A)(1), 	because 	as 	applied 	to	17
Defendant, the statute, which imposes a limited restriction on firearm possession for	18
ten years after a felony conviction, comports with the principles underlying the	19
Second Amendment. See Rahimi, 602 U.S. at 692; see also § 30-7-16(E)(3) (defining	20

21
“felon” for the purposes of the criminal sanction). Because Section 30-7-16(A)(1)	1
can be constitutionally applied under the present set of facts, Defendant’s facial	2
challenge naturally fails. See Murillo, 2015-NMCA-046, ¶ 4. This holding creates	3
no bright-line rule regarding the evidence that is sufficient to establish that a	4
particular defendant is dangerous. Rather, to constitutionally apply Section 30-7-	5
16(A)(1), the State must demonstrate that the defendant “present[s] a threat to	6
others,” Rahimi, 602 U.S. at 698, subject to any challenge by the defendant to the	7
State’s showing.	8
CONCLUSION	9
{19} 	We affirm the district court.	10
{20} 	IT IS SO ORDERED.	11
__________________________________	12
KATHERINE A. WRAY, Judge	13
WE CONCUR:	14
_________________________________	15
J. MILES HANISEE, Judge	16
_________________________________	17
GERALD E. BACA, Judge	18