Third Circuit Will Consider En Banc Whether Nonviolent Felons Lose Second Amendment Rights

The panel opinion, which has now been vacated (as is always done when the court agrees to hear a case en banc) is here (Range v. Attorney General); here's a quick summary of the result of that panel opinion:

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 pleaded guilty in 1995 to 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.

The entire Third Circuit will now consider the matter. Note that Firearms Policy Coalition, for whom I have consulted in the past on other matters, was an amicus in support of Range at the panel hearing stage; but I was not involved in this case.

Comments

[Jason Cavanaugh]

Unpopular opinion:

Felons should get *all* of their rights back upon completion of their sentence and any required parole.

If however, they then commit another felony: bye. Life imprisonment with no possibility of parole.

It isn't difficult to avoid committing felonies for most people. If someone manages to commit one, and then decides to somehow do it again, it seems to me that they've been given enough chances to not be a criminal.

[gallinalg85]

It isn’t difficult to avoid committing felonies for most people not of African descent. If someone manages to commit one, and then decides to somehow do it again, it seems to me that they’ve been given enough chances to not be a criminal.

FTFY

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It isn't difficult for gallinalg85 to avoid showing his bigotry, but he sure tries to not avoid it.

[gallinalg85]

Do you deny that Africans, due to their high testosterone levels, limited intelligence, and poor impulse control, are genetically predisposed to crime and disorder?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes. Do you deny you are a bigot?

Whatever differences there are between the races are environmental, such as skin and hair color.

How many “blacks” in the US are actually more than 50% African? Why is Barack Obama black and not white?

One of the most surprising things about white supremacists is their bragging about how weak “white” blood is, that even one drop of “black” blood makes that human a black person. Do you admit believing that all the “blacks” you are referring to have a whole lot of white blood in them? What makes white blood so fragile and delicate that even being, say, 1/64 white, turns someone into a subhuman criminal?

You are pathetic. Your bigotry is irrational.

[Rev. Arthur L. Kirkland]

Your bigotry may be a shade less intense, but it still makes you a replacement-ready stain on modern America.

Carry on, clinger.

[Frank Drackman]

It's always the "Stains" with you Jerry. Wasn't that what got you caught in the first place??

[gallinalg85]

It only takes a little bit of arsenic to poison a whole well.

[Brett Bellmore]

"Whatever differences there are between the races are environmental, such as skin and hair color."

He may or may not be a bigot, but I think you meant "cosmetic", not, "environmental", right?

I could raise other issues, but let's not divert the thread.

[Gandydancer]

"Whatever differences there are between the races are environmental, such as skin and hair color."

If the environmental conditions of your ancestors are sufficiently different as to produce, e.g., different skin colors the default assumption is that every other measurable will also be different on average.

Your claim to the contrary is determined ignorance on stilts.

[Frank Drackman]

He's just pointing out an "Inconvenient Truth". AlGore does it and makes Billions.

[Rossami]

Strongly agree with your "unpopular opinion".

Disagree with your assertion about committing felonies. It is in fact quite difficult to not commit felonies on a regular basis. Three Felonies A Day was a bit of an exaggeration but only a bit. Admittedly, most people will never be prosecuted for their infractions but they are at risk of it...

[Intelligent Mr Toad]

I was just gonna post the same comment....

[Gandydancer]

In the US a “felony” is a crime potentially punishably by a prison sentence of a year or more.

But as far as I can see there is nothing to prevent jaywalking from being made a felony by label inflation, given that so much of it has occurred already.

This is a basic problem with this discussion.
https://en.wikipedia.org/wiki/Felony

[Brett Bellmore]

I agree with you on policy, but not on constitutional law.

But, as others have noted, felony inflation is a factor here, and a lot of so-called "felonies" never would have been classed as such until recently. At some point that needs to matter, or everything could nominally be made a "felony".

...

But, let's raise the bigger issue, the elephant in the room: The Lautenberg amendment.

This law stripped 2nd amendment rights, not from felons, but from people convicted of violent misdemeanors. Forget felony inflation in this case, the laws didn't even pretend to make these people felons.

And worse: It stripped those rights of people who'd been so convicted prior to the enactment of the law! When they'd had no notice of that consequence. Often, we're talking people who had pled guilty to the offense because all they were facing in the way of consequences was a fine that was actually less than the cost of contesting the charge! And years later they lost a basic civil right over it.

This constitutional atrocity was upheld on the premise that all they were losing was a privilege, not a right. Which was nonsense at the time, but now it's acknowledged by the Supreme court nonsense.

The Lautenberg amendment is stinking on ice over-ripe for review.

[Dr. Ed 2]

Read Harvey Silverglate's _3 Felonies a Day_.

It's easier than you think.

[Buddy Bizarre]

Someone hasn't read Harvey Silverglate's "Three Felonies a Day".

[jbourne]

I'm just an average guy here, who likes reading your blog for the roundup of federal court decisions. But am I to understand this correctly, that the third circuit is going to be considering whether a person who is a non-violent felon, would be allowed to bear arms? After their probation or parole and all requirements is complete of course. And then if they side with Range, will the Attorney General appeal to the Supreme Court?

[Caphon]

Despite @JasonCavenaugh's disclaimer, I think his is the popular opinion, and mine the unpopular one: because felons were traditionally killed, and the few that were allowed to live were stripped of rights, I think the "you're lucky to be alive at all and no, you can't have guns or vote", seems to be the unpopular opinion. The only counter I feel sways me is that we have too many felonies defined on the books, watering down the difficulty of obtaining the qualifications to be a felon. Sympathetic, but I think the fix isn't cleaning up the symptoms of too many defined felonies, it's taking a hard look at felony laws themselves.

I imagine there are a lot of, "yeah, but in the meantime" rationalizations, but as a strong gun rights supporter, I think the gradual admittance of felons back into the gun-owning fold is almost certain to impugn or sully the "law-abiding" qualification that acts like a halo in defense of the right. I'm ever a fan of redirecting the energy to "do something now" into fixing the foundational problems - in this case too many felony crimes on the books.

[TPKeller]

Agree wholeheartedly on the problem with the change in what is a felony.

Post-Bruen, ANY implication of Second Amendment rights should also evaluate the "felony" in terms of History and Tradition. If a crime labeled a "felony" today, was NOT a felony then, it should not put one's fundamental, Constitutional rights at risk.

[Dr. Ed 2]

Voting rights meant more in the 18th Century -- almost all politics was local, and we're talking communities that often had 25-50 eligible voters (remember that women and the poor couldn't vote).

So to lose ones right to vote in 1787 was significant -- as significant as to lose ones right to drive is today. So why are felons allowed to drive? Why are they allowed to travel?

[John F. Carr]

We had a law suspending licenses on conviction for certain drug offenses. I think the law suspending licenses for littering was repealed.

[Gandydancer]

"...felons were traditionally killed..."

It was my impression as well that a "felony" was a crime that could result in a death penalty, but actually it seems to have "describe[d] an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added."
https://en.wikipedia.org/wiki/Felony

But, yes, label inflation appears to have considerably changed the meaning of the Constitutional provision.

[TPKeller]

It's really simple:

If a person is too dangerous to be walking around on the street with a gun, then they are also too dangerous to be walking around on the street WITHOUT a gun.

And the implied corollary: If a person is NOT too dangerous to be walking around on the street WITHOUT a gun, then they are also not too dangerous to be walking around on the street WITH a gun.

And of course the fatal flaw with the decision here is that it is FAR too easy for the legislature to redefine "felony." During the time of the founding, a felony was reserved for only the most serious of crimes. THAT change in definition should be a part of the "history and tradition" evaluation of any application of Second Amendment rights.

[gormadoc]

Your logic is bad. The actual corollary is that someone who isn’t dangerous with a gun is also not dangerous without one.

[TPKeller]

My logic is correct. You just don't understand the point I am making.

[gormadoc]

I understand. It's a bad point. Plenty of pathetic mass shooters have been virtually harmless without a gun but very dangerous with one.

[Brett Bellmore]

I think maybe you mean "virtually harmless standing their naked with nothing in their hands, but very dangerous with a gun"? Because put a mass shooter behind the wheel of a truck at the State fair, say, and they sure wouldn't be harmless.

If anything, a fixation on guns might render them less dangerous, given how many ways there are to achieve mass casualties.

[TPKeller]

"virtually harmless without a gun but very dangerous with one"

And lots of mass murderers have accomplished their crime without the use of a gun.

You're trotting out the same old pathetically absurd argument that a gun possesses a moral value. Crime is ALWAYS committed by a HUMAN who may or may not use a gun as a tool.

[Dr-P]

ACB when she was on the7th CCA would note
- that not all felonies are the same
- the time frame since conviction matters
- and that not all rights are restored in the same manner

She also noted in NYSR&PA
- that one has to be careful to use the right history and traditions standard

[Frank Drackman]

Ted Kennedy killed more people with an Oldsmobile than I have with guns (or Oldsmobiles).

Frank "Ford/Chevy man"