Yesterday, the United States Court of Appeals for the Third Circuit handed down a major ruling in favor of the Second Amendment rights of ex-felons. At issue was the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1), which bars ex-felons from possession of firearms. While it is always risky to bet on granting of review before the Supreme Court, this en banc decision is well positioned for a Supreme Court showdown over the Second Amendment.
The federal law makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition.”
In this case, Bryan David Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps. He later explained that he was earning between $9.00 and $9.50 an hour to support his wife and three young children on $300 per week. Range’s wife applied for food stamps but understated Range’s income, which she and Range signed. Range later took responsibility for the misrepresentation.
Range received three years’ probation (which he completed) and had to pay thousands in fines. However, when Range pleaded guilty in 1995, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years’ imprisonment. That triggered the federal ban. When his wife recently bought him a deer-hunting rifle, he learned that he was barred under federal law. District Judge Gene E.K. Pratter ruled against him.
Judge Pratter looked at five factors to determine whether Range was an “unvirtuous citizen” due to his conviction as a historical justification for the denial of gun possession. Those factors were “(1) whether the conviction was classified as a misdemeanor or a felony; (2) whether the elements of the offense involve violence; (3) the sentence imposed; (4) whether there was a cross-jurisdictional consensus as to the seriousness of the crime,… and (5) the potential for physical harm to others created by the offense.” The government conceded that four of the five favored Range, but Pratter found that he was still properly barred under the “cross-jurisdictional consensus” among other states.
Judge Thomas Hardiman wrote the majority opinion, supported by nine of fifteen judges. Four judges (Shwartz, Restrepo, Krause, and Roth) dissented.
The majority declared:
In sum, we reject the Government’s contention that only “law-abiding, responsible citizens” are counted among “the people” protected by the Second Amendment. Heller and its progeny lead us to conclude that Bryan Range remains among “the people” despite his 1995 false statement conviction. Having determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates Second Amendment conduct. It does. Range’s request—to possess a rifle to hunt and a shotgun to defend himself at home—tracks the constitutional right as defined by Heller. 554 U.S. at 582 (“[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”). So “the Second Amendment’s plain text covers [Range’s] conduct,” and “the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2126.
Gene Volokh noted that the Supreme Court could grant cert”in conjunction with the Fifth Circuit domestic civil restraining order automatic disarmament case, U.S. v. Rahimi. As a practical matter, this is a much more important case than Rahimi (which itself is quite important).”
The case has one of the strongest profiles for review by the Supreme Court. There is now a split among the circuits and this is a well-argued en banc decision. It also is an appeal that would be made by the United States over the invalidation of a federal statute. If you were a betting person, this is your best bet for a grant of the writ of certiorari.
If accepted, the case would present a question that I flagged during the confirmation hearings of Justice Amy Coney Barrett. At the time, I was particularly interested in her dissent in Kanter v. Barr. Rickey Kanter was convicted of one count of felony mail fraud for defrauding Medicare in connection with therapeutic shoe inserts. The Seventh Circuit panel split 2-1 with Barrett in dissent. Focusing on the “history and tradition” of such restrictions, Barrett also took on the voting rights and jury service point with a key distinction:
“The problem with this argument is that virtue exclusions are associated with civic rights—individual rights that “require[ ] citizens to act in a collective manner for distinctly public purposes.” See Saul Cornell, A New Paradigm for the Second Amendment , 22 LAW & HIST. REV. 161, 165 (2004). For example, the right to vote is held by individuals, but they do not exercise it solely for their own sake; rather, they cast votes as part of the collective enterprise of self-governance. Similarly, individuals do not serve on juries for their own sake, but as part of the collective enterprise of administering justice…
Heller , however, expressly rejects the argument that the Second Amendment protects a purely civic right. Moore v. Madigan , 702 F.3d 933, 935 (7th Cir. 2012). It squarely holds that “the Second Amendment confer[s] an individual right to keep and bear arms,” Heller , 554 U.S. at 595, 128 S.Ct. 2783 (emphasis added), and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia, id. at 582–86, 128 S.Ct. 2783.”
Range has obviously strong analogies to Kanter and could allow now Justice Barrett to revisit the issue in a major new Second Amendment opinion.
Here is the opinion: Range v. Attorney General United States
N.B.: The original column was corrected when a quote from Gene Volokh was merged by accident with the indented quote from the court.