The Volokh Conspiracy
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Last week the Third Circuit en banc decided Range v. Attorney General, holding that a person convicted of a Pennsylvania fraud offense—a misdemeanor punishable by up to five years' imprisonment—remains among "the people" protected by the Second Amendment, and that the government failed to show that our history and tradition of firearm regulation supported disarming him. Authored by Judge Thomas Hardiman and joined by eight other judges, the court found the prohibition in the federal Gun Control Act disarming persons convicted of crimes punishable by more than one-years' imprisonment (aka "felons"), 18 U.S.C. § 922(g)(1), unconstitutional as applied to the plaintiff.
That decision creates a circuit conflict among cases decided since the Supreme Court's 2022 Bruen decision holding that restrictions on the right to keep and bear arms must be decided on the basis of text and history, not tiers of scrutiny. Last month, in United States v. Jackson, the Eighth Circuit upheld § 922(g)(1) based on the holding that felons as a class lose Second Amendment rights. Defendant Jackson had two prior convictions for sale of a controlled substance when apprehended with a gun after a "shots fired" alert. A motion is pending to file a petition for rehearing by July 14, so the case may not be ripe for Supreme Court review for some time. That means that Range will land on the Court's docket far ahead of Jackson.
The Range en banc decision, although it's an as-applied challenge, is consistent with much of the reasoning in the Fifth Circuit's Rahimi en banc decision, which found the prohibition on gun possession by a person subject to a domestic restraining order facially to violate the Second Amendment. The Biden Administration's Department of Justice is beating on the Supreme Court's door to hear Rahimi, which has bad facts, but it may slow walk Range because it has good facts.
In 1995, Bryan Range pleaded guilty to making a false statement to obtain food stamps. He had been struggling to support his wife and three children on $300 per week. He was sentenced to probation and to pay a fine. The federal disability doesn't apply if a state misdemeanor is punishable by no more than two years imprisonment, but his offense was punishable by up to five years. Yet he did not serve a single day in jail.
The Biden Administration would prefer the next Second Amendment case heard by the Supreme Court to present the party involved in the worst possible light, in the hope that it would be a vehicle for the Court to retreat from Heller and Bruen.
There are roughly seven thousand convictions for felon-in-possession of a firearm each year, but only around forty-five for possession while subject to a restraining order – that's just .006 percent of the number of felon-in-possession cases. Also, many of the defendants with restraining orders are, like Rahimi, also charged under other federal and state laws. By far the felon issue is most in need of resolution by the Supreme Court, and Range would be the ideal case for the Court to consider next.
In Heller, the Supreme Court stated that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," but it also said that "the people" as used in the Constitution "unambiguously refers to all members of the political community, not an unspecified subset." The Range court reconciled these two statements as follows.
First, the reference to "law-abiding citizens" in Heller and later decisions was dicta, as the criminal history of the plaintiffs in those cases was not an issue.
Second, other constitutional provisions, such as the First and Fourth Amendments, refer to "the people" at large.
Third, as then-judge Amy Coney Barrett wrote in her dissent in Kanter v. Barr (7th Cir. 2019), "all people have the right to keep and bear arms," though a legislature may "strip certain groups of that right."
And fourth, "law-abiding, responsible citizens" is vague. Many felonies are minor crimes. It's a felony in Michigan to return out-of-state bottles or cans, and it's a felony in Pennsylvania to read another's email without permission. Legislatures do not have unreviewable power to take away an individual's Second Amendment rights by merely choosing a label.
Following Bruen, the plain text covers Range's conduct, which is presumptively protected. But the government cannot sustain its burden of showing that a broad gun ban on every person with an offense considered a felony is justified by an appropriate historical analogue.
Heller said that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons …." The Federal Firearms Act of 1938 made it an offense for a person "convicted of a crime of violence" to receive a firearm that had been transported in interstate commerce. A 1961 amendment changed that to a "crime punishable by imprisonment for a term exceeding one year." A law passed in 1961 is not "longstanding" and fails the Bruen test by not being a historical analogue tied to the Founding. Nor do state laws passed in the 1920s meet the test.
Nor are valid historical analogues found in the disarming at the Founding of mistrusted groups like Loyalists, Native Americans, Quakers, Catholics, and Blacks. Range is simply not part of a similar group. Further, the fact that at the Founding some nonviolent crimes like horse theft were punished with death does not show that lifetime disarmament is rooted in our history. Range served his sentence and remains a citizen.
While not discussed by the court, at the Founding offenses like burglary, robbery, and counterfeiting were often punished with imprisonment. For instance, the Old New-Gate Prison in Connecticut, a landmark that can be visited today, housed such prisoners. When released, no laws existed to prohibit such former inmates from obtaining firearms.
Forfeiture laws in which one's property, including firearms, was confiscated for various offenses are not analogous because the subject could simply obtain other firearms.
Finally, appellate precedents nationwide were primarily decided based on means-ends scrutiny contrary to Bruen's text-and-historical-analogue method and are thus not persuasive.
Range thus held "that the Government has not shown that the Nation's historical tradition of firearms regulation supports depriving Range of his Second Amendment right to possess a firearm." As one of "the people," he is eligible to purchase and possess a firearm.
Concurring, Judge David Porter detailed how Congress was not thought to have the power to regulate firearms until the Supreme Court's New Deal-era expansion of its commerce-clause jurisprudence in the 1930s, leading to enactment of the Federal Firearms Act of 1938 and the statutes that followed.
Also concurring, Judge Thomas Ambro maintained that the felon ban remains "presumptively lawful" as applied to murderers, thieves, sex offenders, and the like. Historical analogues were said to extend from English laws disarming non-Anglican Protestants and Catholics to Reconstruction-era laws disarming "tramps." He continued: "Most felons have broken laws deemed to underpin society's orderly functioning, be their crimes violent or not. Section 922(g)(1) thus disarms them for the same reason we prohibited British loyalists from being armed."
Judge Ambro wrote that it is an open question whether the public understanding is defined as that when the Bill of Rights was adopted in 1791 or when the Fourteenth Amendment was adopted in 1868. "If the latter, . . . then Founding-era regulations remain instructive unless contradicted by something specific in the Reconstruction-era." Yet Bruen makes no such statement, which would overturn longstanding Supreme Court precedent on interpretation of the Bill of Rights.
Dissenting, Judge Cheryl Krause argues for historical analogues similar to those suggested above by Judge Ambro. The one that best illustrates the fallacy of the argument is her reference to the English Declaration of Rights of 1689: "Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law." She states: "This 'predecessor to our Second Amendment' reveals that the legislature—Parliament—was understood to have the authority and discretion to decide who was sufficiently law-abiding to keep and bear arms."
But none other than James Madison, in his notes for a speech to Congress in 1789 introducing what became the Bill of Rights, explained the fallacy of the English Declaration: "1. mere act of parl[iamen]t. 2. . . . attainders – arms to protest[an]ts." The abuses that the Second Amendment was adopted to prevent cannot serve as historical analogues that support modern restrictions.
References to the disarming of the loyalists in the Revolution are equally wrong. One does not recognize enemies that one may even kill as having constitutional rights. The patriots passed bills of attainder to seize the property of Loyalists, but that could not legitimately be cited as an analogue allowing violation of the Constitution's prohibition on bills of attainder.
Judge Krause raises a different point that requires further comment: "Under the majority's 'like Range' test, … offenders cannot possibly know in advance of a court's retroactive declaration whether possessing a firearm post-conviction is a constitutional entitlement or a federal felony." That, she argues, is a due process violation. Also, under the Supreme Court's Rehaif precedent, the government must prove that a defendant knows that he has the pertinent legal disability, and now it must prove he knew he was not "like Range."
It goes without saying that Congress created any such problems by enacting an overbroad statute in the first place.
But the argument doesn't hold water. First, Judge Krause contends that police won't be able to arrest a suspected felon with a gun, because a check at the FBI's National Instant Criminal Background Check System (NICS) won't reveal if the crime of conviction may be "like Range." But an arrest and prosecution requires only probable cause, and that will be established by ascertaining the crime of conviction in light of recent judicial decisions.
Second, the dissent argues, a gun dealer won't know on checking NICS if a buyer's felony conviction is "like Range." But NICS doesn't reveal to the dealer the reason for rejecting the transfer. It's up to the purported buyer to appeal a denial to NICS, whose lawyers will have to affirm or reverse the denial based on the latest precedents. If NICS affirms the denial, judicial review is available.
Third, when setting bail, supervised release, and probation, how will a judge know that a charge or conviction may be "like Range"? Once again, judges making such decisions have considerable discretion at that stage that will not be bounded by a potential Range challenge.
Judge Jane Roth dissented on the basis that Range lacked standing to bring the case. A conviction for being a felon in possession of a firearm would require the government to prove that the firearm moved through interstate commerce, as "§ 922(g)(1) simply does not criminalize possession of firearms out of interstate commerce." Supposedly Range did not adequately allege that he wished to obtain a specific firearm with an interstate-commerce nexus.
But Range alleged an intent to buy a firearm from a licensed dealer, and almost all firearms have been shipped in interstate commerce. That allegation necessarily includes an allegation that he would also obtain ammunition, any component of which, having crossed state lines, brings it within the prohibition. He clearly had standing.
In sum, Range presents an excellent vehicle for the Supreme Court to review the constitutionality of the prohibition on firearms by persons with a legal disability, the leading one of which is, by far, the felon-in-possession prohibition under § 922(g)(1). It would give the Court an opportunity to explain the basis for distinguishing violent felonies from crimes that do not involve dangerous persons. And it is the latter who should not be deprived of the fundamental right to keep and bear arms.