The Volokh Conspiracy

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Third Circuit Holds That at Least Some Felons Retain Second Amendment Rights


Today's en banc decision in Range v. Attorney General so concludes, in a majority opinion by Judge Hardiman, which got the votes of nine of the fifteen judges. The challenger in this case pleaded guilty in 1995 to making a false statement to obtain food stamps; because this was in theory punishable by up to five years in prison under Pennsylvania law, that made him a felon for federal gun law purposes (even though his actual sentence was just three years' probation plus "$2,458 in restitution, $288.29 in costs, and a $100 fine"). But the logic of the majority opinion suggests that this might apply to many felons, perhaps even including people convicted of violent felonies, at least as I read the court's rationale.

Judge Ambro, joined by Judges Greenaway and Montgomery-Reeves concurred, but would have excluded felons whose crimes suggest that they "would, if armed, pose a threat to the orderly functioning of society," such as "murderers, thieves, sex offenders, domestic abusers, and the like." Judge Greenaway also joined the majority, but the other two did not. (Judge Porter also wrote a separate concurrence focusing on federal power.)

Judges Shwartz, Restrepo, Krause, and Roth dissented, generally arguing that felon disarmament laws are categorically constitutional. Judge Krause's separate dissent is particularly detailed. I don't have the time to excerpt the opinions, which are 107 pages long, and contain much detailed historical argument; you can read them here.

It seems to me nearly certain that the Supreme Court will agree to hear the case, perhaps 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 federal government is nearly certain to seek review by the Supreme Court; the decision invalidates a federal statute; there is a circuit split; the broad reasoning of the decision is in tension with the Court's statements that felon disarmament laws are presumptively constitutional. All of these are factors cutting in favor of Supreme Court review, and put together they make such review extremely likely.