Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights

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.

110 thoughts on “Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights”

  1. When you purchase a firearm in the US today, you are required to complete an application which the government approves or denies. One of the questions on the application requires you to state whether you are male, female, or non-binary. If you reply “non-binary” your application will be denied. Upon inquiring as to the reason for this I discovered the ATF considers a “non-binary” professing person to be mentally unstable. So what we have is an administration that loudly supports people to have views they consider mentally unstable but considers them a potential threat at the same time. Huh?

  2. Times have changed. They’d have hung those felons in those days. So maybe present day ‘justice’ is unconstitutional? Giving guns to murderous felons is a bad fit.

    1. Wow, what a toolbag response. Because of an overzealous state, and ridiculous minimum sentencing, I could easily catch a felony for some dumb s***. You’re an a******. I have a right to carry WTF I want and neither you nor the state should have any say. C********.

      1. The only time a person should have their guns restricted is when they are IN prison.. When they are out in the world they should carry whatever weapon they need to defend themselves. If they are really a danger then someone will neutralize them.. period.

    2. If somebody has served their time & become a pillar of the community, why shouldn’t they get their full rights back? If not, why should they pay taxes ? Shouldn’t they be able to vote ? Truth is, if somebody is going to get out & continue doing crime, they can get an illegal gun to use. Only an idiot would commit crimes with a gun registered to them. Let’s have common sense & not decide to make somebody half whole after they have paid their dept to society.

      1. How true. Most felons are not murderous individuals, prison should reform the con and sometimes it works. In today’s society ALL should be armed even if most gun crime is black on black. I’d trust an ex-con if he’s spent years in society crime free. I mean this about trust. But never trust a Muslim.

    3. The law is totally illegal. You can’t lose a right because of a conviction. If they can take one right, they can take them all. If you’re worried about “bad” people obtaining weapons, then be a man and grow a pair of balls. Its a rough world out there.

    4. Statistiacally, there are way more ‘murderous’ people out there who have no felony record and are all in possession of guns. By far, most mass shootings are committed by people with no criminal record and using legally possessed fire arms. I know plenty of exfelons that I’d much rather trust them to have gun for legal purposes than a lot of the crack pots that have no conviction carrying guns around. For every exfelon who misuses a gun there will be ten more without records doing so. People who have made mistakes tend to learn from it. It’s the ones that never had a brush with the law that are more likely to misuse a gun. Many of them don’t even know the self defence laws, and are not so much concerned with protecting themselves as they are looking for an excuse to shoot someone.

    1. Once you have done your time All rights should be reinstated. Let’s not forget how most felons are discriminated against as far as employment, housing, and education as well.

      1. I worked with more than a few and still do with men that got felonies for nonviolent or process crimes and it is a pox on them from a cancerous govt trying to make us all disarmed

  3. Every U.S. citizen should have the Right to Constitutional carry. All gun restrictions should be removed. The.Brady Bill should be ruled unconstitutional. No background checks, or waiting periods….

    You then set mandatory prison sentences, for any crime involving a firearm. Watch crime rates drop 80% , when everyone is armed.

  4. …if the law stands…questionable jurisdictions will make every misdemeanor or petty offense punishable by 365 days in jail and…poof…everybody is disarmed…remember this…even a suspended 365 day sentence ends your 2A rights…

    1. I find it indefensible , arbitrary and ludicrous how the fed god pulled 365 day sentence as a felony threshold and yet the 2nd amendment to our constitution directly states “shall not be infringed”.

      1. It is not privilege to own a gun to defend your family or to hunt…It is a right. Should be easy to understand. If someone else is free & clear, their rights should be restored.

  5. $9.00 per hour is enough to live on in many other parts of the world, but not here. Why? Big government.

  6. Time for the SCOTUS to stop deeping their toes in the muddy waters of the second amendment and go all in and define the law as it was indended and put a stop of all outside laws . Liberal courts have made a mockery of the laws when it comes to inforcing gun laws .Liberals cry for more strick gun control laws while liberal courts and DA’s plead to let those who committ a crime with a firearm off with leniency . You can’t have it both ways .

  7. Professor Turley Writes:

    Bryan David Range 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.

    Here Turley overlooks the most obvious of issues: ‘Our outdated minimum wage laws’.

    No single person can live on $9.50 per hour anywhere in the country. Yet Bryan Range was trying to support a ‘family’ on that. No wonder he needed food stamps! No wonder people are angry enough to vote for Donald Trump.

    1. 1995 $9-10/hr was fair money for unskilled labor. You fail to recognize the lack of personal responsibility of the convicted man, if you can’t feed them do not breed them. He can petition the court to get his rights back, that follows the law and if that fails he can bow hunt.

  8. What is an “ex-felon”? I’m under the impression once a felon always a felon. It takes a pardon to expunge the record.

    1. That is silly, Sam. Virtually all states allow restoration of civil rights including voting. Some allow expungement of the conviction itself. Ergo, that is why there are ex’s…

      1. You are incorrect. In California felons can restore voting rights but not gun rights.

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