Third Circuit Reaffirms that Even Nonviolent Felons May Lose Second Amendment Rights

The case is Range v. Attorney General, an opinion jointly authored by Judges Patty Schwartz, Cheryl Ann Krause, and Jane Roth; it's the first circuit case to deal with the issue under the Bruen framework, and it has (following Bruen's instructions) a long and detailed historical analysis. Here's the quick summary of the result:

Based on history and tradition, we conclude that "the people" constitutionally entitled to bear arms are the "law-abiding, responsible citizens" of the polity, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range [who had been convicted of a state felony-equivalent charge of welfare fraud] falls within "the people," the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.

Congratulations to Kevin B. Soter and Mark B. Stern, who represented the government. Note that Firearms Policy Coalition, for whom I have consulted in the past on other matters, was an amicus in support of Range; but I was not involved in this case.

Comments

[Dr. Ed 2]

This is unmitigated bullbleep — imagine revoking someone’s first amendment rights for being a felon. I’m thinking of rights to peacefully assemble and to petition the government — there wouldn’t have BEEN a BLM movement if everyone who had been convicted of a felony were subject to summary arrest.

Or losing your 4th and 5th Amendment rights — you’ve already been convicted of a crime so the cops can search to their hearts desire and toss you onto the rack if you don’t confess to whatever it is they said you did.

Where does it say that convicted criminals have a lifetime loss of their constitutional rights?!?

[shawn_dude]

So you agree that once a felon leaves prison and completes any parole requirements, they should be able to buy a gun?

How about vote?!

[Brett Bellmore]

I think they should get ALL their rights back at the end of their sentence. No second class citizens!

[DWB]

Americans voting have killed more people than private citizens with guns, but absolutely correct for citizens to retain all of their rights.

[shawn_dude]

Something you and I agree on.

Now if only DeSantis and his ilk would agree, too.

[Harvey Mosley]

I agree with Brett. But only if it is all rights. No picking and choosing. If someone is safe enough to be released from prison they are safe enough to vote, drive, live where they choose and move when they want, and buy and own firearms and ammunition. If they are too dangerous for any of that they should still be in prison or on supervised release in some sort of halfway house.

[Dr. Ed 2]

There are only nine states that don’t let them vote — and the main reason why voting while incarcerated was eliminated was that it skewed the election results in the relatively small towns in which the prisons were located. See: https://images.procon.org/wp-content/uploads/sites/48/felon-voting-map-aug-1-2022-1024×864-1.jpg

Maine dealt with this by requiring them to vote via absentee ballot in the town they had been living in before incarceration, and which they plan to return to upon release.

[shawn_dude]

What’s the date of this map? Florida passed a citizen initiative restoring the voting rights of felons after they were released. The state legislature interpreted that to include all fines and fees. But in Florida, a significant number of felons aren’t told what they owe in fines and fees and the state claims it’s too difficult to figure out.

So, the map is technically wrong but probably right in effect.

Oh, and now there’s a GOP push to eliminate citizen initiatives in Florida.

[Brett Bellmore]

“The state legislature interpreted that to include all fines and fees. ”

As I’ve documented before when it came up, the initiative’s backers interpreted it that way, too, until they actually won. Only then did they change how they interpreted it.

There’s a very legitimate complaint about how hard it is in Florida to find out how much you actually owe, but so far as requiring every cent of it to be paid before the right to vote was restored?

The legislature was faithful to the initiative in that regard.

For instance, the ballot language:

“Q: What does the passage of Amendment 4 mean for convicted felons who were previously deemed ineligible to vote? Beginning January 8, 2019, convicted felons who are in compliance with Amendment 4 (those who have completed all terms of their sentence, including parole, probation, payment of fines, fees and court costs, and were not convicted of murder or sexual offenses) are eligible to register to vote.”

[Harvey Mosley]

I wish we could eliminate initiatives in California. We’ve had the same initiative on the ballot for the last three elections and it has failed all three times.

[ReaderY]

Talk about a complainant who pleads himself out of court!

States CAN revoke felons’ First Amendment rights. For example, laws prohibiting them from profiting from accounts of their crimes. So it follows from your logic that revoking 2nd Amendment rights is no problem.

[defaultdotxbe]

That’s not really an apples apples comparison, it doesn’t deny all 1st amendment rights, or even all speech rights, just the ability to profit from a particularly narrow use of that speech.

Maybe if we denied felons the ability to get an FFL and sell the same gun they used in their felony you’d have a better point.

[Commenter_XY]

Layman question: What is the significance of this opinion issued per curiam (I read the footnote). Why is that status important wrt the decision?

[Noscitur a sociis]

As the panel explained:

We issue this precedential opinion per curiam to reflect both its unanimity and the highly collaborative nature of its preparation.

It has no effect on the opinion’s precedential value.

[OtisAH]

Is that a textualist reading or an originalist reading?

[Noscitur a sociis]

There’s nothing we can do to stop them, but the more that Bruen challenges come from convicted criminals who want to own guns, the worse it will be for second amendment jurisprudence. I’ll commend Mr. Range for at least trying to proactively challenge the law instead of breaking it and raising unconstitutionality as a defense; I just wish he’d waited for a few decisions protecting the rest of us (magazine capacity limits, assault weapon restrictions, bans on nonresident carry, overly restrictive licensing, and so on) to get published first.

[Absaroka]

+1

[Dr. Ed 2]

Any idea of the Federal suit in Maine over disqualification over mental health issues?
I know there was a suit filed a while back — maybe a decade now.

[Brett Bellmore]

“felony and felony-equivalent offenses”

Of course, this still leaves the problem of felony inflation, which is to say that a great many criminal offenses that are today felonies would in the past have been at worst misdemeanors. Remember, felonies were, originally, all potentially capital offenses, loss of rights was thus a lesser punishment.

And, what the heck is a “felony-equivalent” offense? Does it carry the same due process?

[Noscitur a sociis]

And, what the heck is a “felony-equivalent” offense?

Section 922(g) doesn’t actually use the term “felony”—it prohibits possession by a person who has been convicted of ” a crime punishable by imprisonment for a term exceeding one year”.

In this case, the plaintiff was convicted of a crime that Pennsylvania labelled a misdemeanor, but for which up to 5 years of imprisonment was authorized. So it wasn’t a felony (under the terminology set out in the state law classification), but it was disqualifying under the language of the federal statute.

[Brett Bellmore]

Thanks for the clarification!

[Absaroka]

I wonder if ‘actually punished by’ would be a better metric than ‘could be punished by’.

If whatever you did was serious enough to actually be sentenced to N years, that seems more probative of your depravity than ‘we could send you away for N years, but given the particular circumstances here we think probation is fine’.

[santamonica811]

Hmmm. Interesting point. Gives me something to think about–your suggestion might be a better (ie, more fair) result.

[DJK]

At common law, felonies were murder, manslaughter, burglary, robbery, rape, larceny, arson, and mayhem. What’s the argument based on tradition and history here? Welfare fraud is similar enough to larceny, maybe?

[Dr. Ed 2]

Welfare fraud would have been lying to the local minister about your resources and getting public assistance.

It didn’t happen that often because the minister’s wife would bring the leftovers from the church supper and otherwise try to help out your family and the community would kinda notice.

[Noscitur a sociis]

Of course, this still leaves the problem of felony inflation, which is to say that a great many criminal offenses that are today felonies would in the past have been at worst misdemeanors. Remember, felonies were, originally, all potentially capital offenses, loss of rights was thus a lesser punishment.

Could you elaborate on the history you’re looking at here? Blackstone defines a felony as a crime that could be punished with forfeiture of land or goods, and which therefore encompassed but was not limited to capital offenses. And certainly by the time of the Crimes Act of 1790, Congress was prepared to recognize felonious offenses with penalties significantly lower than execution. Blackstone also describes some offenses (like petty larcney) as felonies, which would be highly anamolous today. So over the last couple hundred years, it looks to me like the penalties for felonies have been decreasing. But I’d be happy to be educated if I’m overlooking something.

[Mr. Bumble]

Are there other circuit decisions on cases like this?

[Noscitur a sociis]

The case is Range v. Attorney General, an opinion jointly authored by Judges Patty Schwartz, Cheryl Ann Krause, and Jane Roth; it’s the first circuit case to deal with the issue under the Bruen framework, and it has (following Bruen’s instructions) a long and detailed historical analysis.

[Brett Bellmore]

OK, I guess I was wrong about them ALL being potentially capital crimes.

I expect the penalties for “felonies” have been decreasing in part because ever lesser offenses are being swept up under that label.

[Armchair Lawyer]

Look up what a misdemeanor level 2 in PA includes:

“Insults to the National or Commonwealth Flag”.

Did you insult the US flag? Say goodbye to your right to bear arms.

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/204/chapter303/s303.15.html&searchunitkeywords=misdemeanor&origQuery=misdemeanor&operator=OR&title=null

[Dr. Ed 2]

Brett —

Remember that two-three centuries ago they really didn’t have prisons — this is where they held the accused witches: https://en.wikipedia.org/wiki/Fort_Sewall

So you either fined someone, put them in the stocks, or hung them.

[Noscitur a sociis]

Can you give some specific examples of what you have in mind? For instance (as I noted above) Blackstone says that larceny is always a felony, and that larceny of property worth a shilling or more is a capital offense, which is (to put it mildly) not in line with how they’re treated today.

[Armchair Lawyer]

Under Pennsylvania law, vandalism of school grounds of dollar value less than $5000 is a misdemeanor second class. Misdemeanors second class can be penalized by up to 2 years in jail, which makes them “Felony-equivalent” offenses.

Accordingly, if one was to..say place a series of stickers…on school lockers, that could be classified as vandalism, even if it took as little as $1 to repair. And would be classified as a “felony-equivalent” offense.

[Armchair Lawyer]

Other Misdemeanor class 2 offenses…

1. Discrimination on account of U.S. armed forces uniform
2. Municipal housing code avoidance (4th off)
3. Unlawful advertising of insurance business
4. Scattering rubbish-deposit trash on street (1st off)
5. Failure to disperse upon official order

[Bored Lawyer]

One of my favorite examples of felony creep is 18 USC §1821:

Transportation of dentures
Whoever transports by mail or otherwise to or within the District of Columbia, the Canal Zone or any Possession of the United States or uses the mails or any instrumentality of interstate commerce for the purpose of sending or bringing into any State or Territory any set of artificial teeth or prosthetic dental appliance or other denture, constructed from any cast or impression made by any person other than, or without the authorization or prescription of, a person licensed to practice dentistry under the laws of the place into which such denture is sent or brought, where such laws prohibit:
(1) the taking of impressions or casts of the human mouth or teeth by a person not licensed under such laws to practice dentistry;
(2) the construction or supply of dentures by a person other than, or without the authorization or prescription of, a person licensed under such laws to practice dentistry; or
(3) the construction or supply of dentures from impressions or casts made by a person not licensed under such laws to practice dentistry-
Shall be fined under this title or imprisoned not more than one year, or both.

Can one seriously contend there is a historical tradition to deprive such persons of their 2d Amendment rights?

[Noscitur a sociis]

Since that is pretty clearly not a felony, no.

[Archibald Tuttle]

Shh. Don’t let New York hear about that. They’ll revoke 2nd amendment rights for jaywalking.

But as far as the legality of revocation, it’s not surprising. After all isn’t jail the revocation of liberty? Isn’t execution the revocation of life, speech, religion, and everything else? The 13th amendment explicitly allows people to be sold into slavery as punishment for crimes. Many rights can be taken away for many reasons.

[Commenter_XY]

Can one’s 1A right to free speech be permanently revoked? Not being obtuse, but thinking through what you’re saying.

[Absaroka]

If you have a 1A right to consume speech, as well as produce it[1], then aren’t e.g. kiddie porn types frequently forbidden to access quite a bit of speech?

[1]I’d think you’d have to, lest ‘Fred can’t speak’ gets turned into ‘Fred can speak, but anyone who listens gets the chop’.

[Archibald Tuttle]

Did you read before commenting? I said execution. Surely you don’t think you have freedom of speech after you are exectued.

[Rossami]

Sorry, but I think the Third got this badly wrong. Probably their biggest mistake was ignoring the ‘felony inflation’ problem. But almost as bad is ignoring the many, many counter-examples showing that even among Founding-era felons, the loss of a right to defend yourself was generally temporary.

[M L]

Three felonies a day.

https://www.amazon.com/exec/obidos/ASIN/1594035229/reasonmagazinea-20/

[Dr. Ed 2]

More relevant today than when Harvey wrote it.

For those who don’t know, he co-founded FIRE.

[Jaypd]

Ok this is basically the same ruling Judge Counts gave in US v Collette, I guess at least the issue is getting some coverage on this blog now.

I’m a little surprised, however, that we’re not even commenting on how this court and Judge Counts just seem to shrug off the implications of these rulings about who “the people” are comprised of, and the lack of any attempt to cabin this concept from spreading to the rest of our rights. Taken to its logical extreme- this jurisprudence permits the legislature to create a second class of citizens with nothing stopping it- anything can be a felony.

It seems to me that the problem with this approach is that the courts are ignoring the 8th Amendment, which keeps up with the times- “unusual” punishments- while it looks at the historical record. Basically you have courts saying “look, back in 1791 it was totally ok for the legislature to take your gun for being catholic so basically “the people” are whoever the legislature says they are”. Seems to me we’re in Trop v. Dulles territory now.

[Armchair Lawyer]

Key word there is “Felony-equivalent”.

Despite, for example, $10 of school vandalism being classified as a misdemeanor 2 under PA law, since it “could” be sentenced by up to 2 years in jail, it’s a felony-equivalent.

[dwb68]

Not quite.

Committing a crime is a voluntary act. The legislature is not “creating” 2nd class citizens, you are making yourself one when you violate the law. Cant do the time, don’t do the crime.

Yes its true “anything can be a felony.” Even drinking alcohol was a felony. If you disagree that welfare fraud is felony-worthy, take it up with your representatives and get them unelected. There have been countless success stories decriminalizing non-violent crimes.

[Jaypd]

Two thoughts:

1. There’s not a lot of point in a constitutional right that is dictated by who is in the legislature. I mean, why say it is a right at all.

2. The bigger issues raised by implication in the court’s opinion are that who get to be “the people” are up to the legislature, so not only are we talking gun rights, we’re talking all rights. Additionally, looking at the precedent the court uses, the categories of people the legislature could deny rights to needn’t have committed a crime- you could just join the wrong religion or be the wrong skin color.

[dwb68]

Who the people are has always been up to the legislature**.

This opinion does not extend to people who have not committed a crime.

** Taken to the logical extreme, for example: A sufficiently large number of people can pressure legislators to enact a constitutional amendment making alcohol drinkers criminals.

that is, a super majority of voters determines the constitution.

[Armchair Lawyer]

Wow…that’s extremely unjust, and a perversion of the law and the rights of Americans.

To understand this, you need to understand that the government should need a compelling interest in order to strip someone’s rights for life. In the case of violent felons…that makes sense with regards to gun rights. With non-violent felons or “felon-equivalents”…that is dubious in the extreme, and the Judge’s logic seems to be “Well, since we historically took people’s right away, we can do it again”. Which is…in the wake of other ways the government stripped away other rights…poor logic.

Looking at this particular example, Range was convicted of “Felony-equivalent offense”…actually a misdemeanor level 1 offense in PA, that “could” have been sentenced for up to 5 years in jail….but in practice was 3 years probation and repaying the ~$2500 in food stamps he fraudulently obtained by misreporting his income. Oh, and he also got his right to bear arms stripped for life for this non-violent offense.

See, Pennsylvania law is interesting. Its level 1 and level 2 misdemeanors can be punished by a jail sentence for up to 5 and 2 years respectively…which makes them “felony-equivalent” offenses…and you can have your rights stripped for violating them…despite being misdemeanors. Some of these level 2 misdemeanors include…
1. Stealing anything more than $51
2. Any type of vandalism at a school $1 – $5000
3. Passing a bad check of more than $500…once
4. Picketing to obstruct justice.
5. Stealing 2 library books.

Now you’re not going to be put in jail for 2 years for stealing 2 library books or accidentally bouncing a check for $550, or putting up a bunch of pro-choice stickers on school lockers. It’s a fine and probation at worst. But because the law says you “could” be put in jail for 2 years…it’s a felony-equivalent offense…and your right to bear arms can be stripped for life. And that’s not right.

Now, perhaps you don’t think people should have guns, and feel justified in stripping their right to bear arms for any excuse you can think of. But…if you can strip this right for accidentally bouncing a check…what other rights can be stripped for accidental, simple offenses? The right to vote? The right to an abortion? The right to assemble?

Point being, our Constitution is meant to defend the rights of our citizens, including the poorest among us, the minorities among us, the ones who most need those Constitutional protections because they aren’t rich and powerful, and don’t control the levers of government. Those are exactly the same people who are more likely to run afoul of minor, non-violent issues in the law. Rich people aren’t going to accidentally bounce a $501 check because their employer didn’t pay them on time.

But this type of ruling makes it so much easier to strip the rights from the poor and minorities just because….and it’s wrong.

[dwb68]

No. Read the whole opinion. I am a pretty hard core gun rights person and even I have to concede the opinion is likely correct.

[Armchair Lawyer]

Stripping a person’s constitutional rights for life for a non-violent misdemeanor crime is wrong.

[Rossami]

It may be correct as a matter of legal precedent but Armchair is correct that it is normatively wrong. It is immoral, unjust and the only way you can shoehorn it into the Bruen analysis is by being very selective in the historical comparisons you allow yourself to consider.

[Purple Martin]

“…the only way you can shoehorn it into the Bruen analysis is by being very selective in the historical comparisons…

…which, basically, was the issue with Bruen itself.

[DWB]

Volokh has his fingerprints on the trashing of the constitution and bringing fascism to America?

Where did I put my shocked face…

[dwb68]

For better or worse, I have to concede that the 3rd circuit opinion is persuasive. For example “Punishments meted out for a variety of non-violent offenses between the seventeenth and nineteenth centuries provide additional support for legislatures’ authority to disarm even non-violent offenders.” .. those non-violent offenses include “larceny, repeated forgery, and false pretenses—all of which involve deceit or the wrongful deprivation of another’s property and closely resemble Range’s welfare fraud offense.”

I mean, if you can be put to death for fraud or stealing a man’s horse, you can also be deprived of arms (a lesser punishment).

Sounds right to me.

[Dr. Ed 2]

They also tried to disarm people on the basis of race back then.
Actually did.

Was that right?

[dwb68]

I did not find that part of the opinion persuasive: The 14th amendment precludes disarming people based on race.
That said, fraud and larceny were clearly [nonviolent] capital crimes. If the state can hang you for larceny, they can certainly take your guns away.

[Armchair Lawyer]

Can they hang you for bouncing a check? For putting stickers on a school locker? For picketing?

[dwb68]

In 1800 they could hang you for fraud, larceny, and counterfeiting, so yes to bouncing a check.

You are conflating the constitution with the bible. Not everything right is allowed by the constitution, and not everything allowed is right.

[Armchair Lawyer]

They could hang you for bouncing a $4 check in 1800? Really?

That’s what a $500 check today is worth. Approximately, given the increase in average incomes.

[Noscitur a sociis]

Personal checks were still in their infancy in 1800, especially in the US. But as I noted above, according to Blackstone larceny of a shilling or more was a capital offense. And in the Crimes Act of 1790, Congress imposed a mandatory death sentence for forgery. So I certainly don’t think that punishment would have seem exorbitant.

[Armchair Lawyer]

You’re being selective in what you report….You note that Larceny was considered a capital crime, but then don’t actually report what the penalty for larceny was…shifting instead to counterfeiting.

According to the Crimes Act of 1790, the penalty for Larceny was 4X fine and 39 stripes. Not death.

[shawn_dude]

So everyone that crossed the police barriers on Jan 6 should be deprived of their 2nd Amendment rights? And their right to vote? What other rights should they lose?

If gun ownership is highly correlated with conservative voting patterns (it is), then a state or county with a liberal majority in the local government could pass minimum sentencing laws greater than a year for violation of gun-related regulations and then use that to strip voting rights from anyone caught. For good measure, they could spend more enforcement funding in the rural areas because that’s where they’re more likely to find these “criminals.”

Sound right to you?

[fafalone]

That doesn’t sound right to me at all, because then, by the same logic, you could be stripped of *all* constitutional rights, permanently. Everyone recognizes the absurdity of that claim. The severity of the sentence doesn’t speak to the ability to strip constitutional rights after it’s been completed.

[defaultdotxbe]

Two questions.

First, when felons were first denied 2nd amendment rights (by state or federal law) were there many nonviolent felonies on the books? It seems to me that while there might be historical support for denying felons 2nd amendment rights, there is less support for the idea that so many crimes are felonies.

Second, relatedly, (and seriously asking the lawyers here) is there anything that would prevent a state from defining exceeding the speed limit as a felony and deny 2nd amendment rights to anyone who gets a speeding ticket? (same would apply to right to vote, hold various occupational licenses or anything else we don’t let felons do)

[Armchair Lawyer]

That’s the beauty. They don’t actually need to call it a felony. It can still be a misdemeanor.

They just need to increase the possible maximum sentence to 1 year, 1 day in jail. They never have to issue that sentence. They can group speeding under a broader array of crimes (Speeding and reckless driving, for example). Bring in the chump. Charge him with speeding and reckless driving, call it a misdemeanor, and tell him to plead guilty and pay the $100 fine. He does, and then he can go.

But because the maximum sentence possible is 1 year 1 day…it’s now a “felony-equivalent” offense, and they can strip your rights.

[Noscitur a sociis]

Since larceny, false pretenses, and forgery were felonies while simple assault or battery were not, I don’t think this explanation is correct.

[Armchair Lawyer]

Pennsylvania law lists simple assault as a misdemeanor class 2. These can be punished by up to 2 years in prison, which makes them “Felony-equivalent” offenses.

[Noscitur a sociis]

That’s my point: over time, violent offenses have generally become more serious, and property crimes hare treated more leniently. So defaultdotxbe’s suggestion that historically, felonies much more likely to be violent crimes than they are today doesn’t seem to hold water.

[Stephen Lathrop]

The minds of pro-gun commenters have boggled. Bruen is the cause. The deliberately arbitrary style of historical analysis prescribed in Bruen cannot deliver reliable history. Thus, there is nothing in Bruen but a demand for misleading history, guaranteed to deliver internal contradictions to any legal analysis which attempts to follow Bruen’s dictates.

It will be interesting to see whether gun advocates confront the Bruen problem honestly, and demand its repeal, or whether they attempt to build some kind of jury-rigged legal structure atop its grotesquely inadequate foundation.

[David Lawson]

The govt fared rather poorly in the 7th Circuit.

[Carl_N_Brown]

The 1968 Gun Control Act was sold on the argument we don’t want violent felons buying guns from legal sources after release.

Since 1968 so many new felonies have been defined its ridiculous. Not to mention the prosecutorial sport of overcharging to force plea bargaining. Brings to mind “There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” -Ayn Rand

There are now so many nonviolent felonies (and nonviolent misdemeanors that could be punished by more than 11m 29d read the 4473 questions a gun buyer must answer), that becoming a prohibited person on the database used for the National Instant Check System is not at all difficult. Especially since the government incentivized adding un-adjudicated juvenile arrest records decades old to the database.

The more recent DoJ NIJ BoJS surveys of incarcerated inmates who carried or used a gun in the crime for which they were in prison showed that 9% acquired guns from legally regulated sources (gunshops, pawnshops, gunshows) and 91% acquired their guns from various unregulatable sources including 42% from Underground/Street sources.

[No One Of Consequence]

Perfect example of why they shouldn’t let girls be judges.