The Volokh Conspiracy
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Florida Appellate Court Rejects Third Circuit's Reasoning as to Felons and the Second Amendment
From Edenfield v. State, decided Wednesday, in an opinion by Judge Bilbrey and joined by Judge Winokur, with Judge Long concurring in the result (for more on the Range case, see here):
We deny Appellant's amended motion for rehearing, rehearing en banc, and to certify a question of great public importance. We write to explain why we will not apply the reasoning in a federal appeals court decision, decided after our opinion affirming Appellant's conviction for possession of a firearm by a convicted felon, to Appellant.
Appellant argues that we should rely on Range v. Attorney General (3d Cir. 2023) (en banc), to grant rehearing. Range was convicted of "one count of making a false statement to obtain food stamps in violation of Pennsylvania law." This offense was a misdemeanor, but because Range faced a potential term of imprisonment exceeding one year, he was prohibited from possessing a firearm under federal law.
Range brought a challenge to section 922(g)(1) in federal court claiming that the law "violates the Second Amendment as applied to him." The Third Circuit agreed with Range. It held that the "law-abiding, responsible citizens" language from District of Columbia v. Heller (2008), was dicta. It also held that the Government failed in its burden to "show that § 922(g)(1), as applied to him, 'is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.'"
The holding in Range notwithstanding, we will continue to apply the "law-abiding, responsible citizens" language from Heller in upholding the constitutionality of the crime of possession of a firearm by a convicted felon. As the court in United States v. Rozier (11th Cir. 2010), explained there are two reasons to apply the "law-abiding, responsible citizens" language:
First, to the extent that this portion of Heller limits the Court's opinion to possession of firearms by law-abiding and qualified individuals, it is not dicta…. "Dictum may be defined as a statement not necessary to the decision and having no binding effect." … Second, to the extent that this statement is superfluous to the central holding of Heller, we shall still give it considerable weight…. "[D]icta from the Supreme Court is not something to be lightly cast aside." …
Post Bruen, nearly all of the cases continue to uphold the validity of laws disarming convicted felons. The contention in Range that the "law-biding, responsible citizen" language was dicta, and apparently weak dicta at that, is not supported by most courts post Bruen.
There are a few decisions to the contrary such as Range and United States v. Bullock (S.D. Miss. 2023). But unless a higher court disagrees with us, we will continue to adhere to Epps v. State (Fla. 1st DCA 2011), where we applied Heller and McDonald v. City of Chicago (2010), to uphold the constitutionality of … prohibit[ing] the possession of firearms by convicted felons.
As to the historical traditions argument, Range involved an as-applied change before the trial court, while here Appellant did not raise any challenge to section 790.23(1)(a) at trial. As our opinion discusses in footnote one, Appellant was allowed raise a facial constitutional challenge to the statute on appeal. But he could not raise an as-applied challenge for the first time on appeal.
"To succeed on a facial challenge, the challenger must demonstrate that no set of circumstances exists in which the statute can be constitutionally valid." The court in Range did not invalidate section 922(g)(1). It specifically noted, "Our decision today is a narrow one." And as Judge Ambro stated in a concurrence joined by two other judges, section 922(g)(1) "remains … because it fits within our Nation's history and tradition of disarming those persons who legislature believe would, if armed, pose a threat to the orderly functioning of society."
Range was not a felon; instead, he committed a nonviolent misdemeanor offense. Appellant was previously convicted of much more serious offenses—burglary of a dwelling and aggravated battery with a deadly weapon. As our opinion discusses in footnote two, burglary of a dwelling is classified as a violent felony or crime of violence and so is aggravated battery.
Again, there are a few cases to the contrary, but the majority of cases post Bruen that have applied its historical traditions test have upheld the prohibition on felons possessing firearms. This argument is more compelling when faced with disarming violent felons. See Kanter v. Barr (7th Cir. 2019) (Barrett, J., dissenting).
Ultimately, the United States Supreme Court may address various questions arising from Bruen. See, e.g., United States v. Rahimi (5th Cir. 2023), cert. granted (granting a petition for writ of certiorari to determine whether the Second Amendment is violated by a federal law that prohibits the possession of firearms by persons subject to domestic violence restraining orders). But the current state of the law is that Florida's prohibition of possession of firearms by convicted felons survives a facial challenge from a convicted violent felon. Accordingly, we deny Appellant's amended motion.
Michael L. Schaub represents the State.
