The Volokh Conspiracy
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Second Amendment Roundup: Circuit Conflict in Felon Gun Ban Cases
Congress should reinstate ATF appropriations for removal of disabilities.
On December 23, the Third Circuit en banc handed Bryan Range an early Christmas present by ruling that despite his decades-old conviction for a false statement to obtain food stamps in violation of Pennsylvania law, he "remains among 'the people' protected by the Second Amendment." Further, "the Government did not carry its burden of showing that the principles underlying our Nation's history and tradition of firearm regulation support disarming Range…."
The case is Range v. Attorney General. After the Supreme Court in Bruen reinforced the text-history approach to deciding Second Amendment cases, in 2023 the Third Circuit had reached that same result. However, after deciding Rahimi, the Supreme Court granted Merrick Garland's cert petition, vacated the judgment, and remanded the case for further consideration in light of Rahimi.
In a decision by Judge Thomas Hardiman, the majority again ruled in favor of Range. It reasoned, first, that the criminal histories of the parties were not at issue in the Supreme Court's previous civil cases – Heller, McDonald, and Bruen – with their dicta about "law-abiding" persons having the right to bear arms. Second, "the people" also appears in the First and Fourth Amendments, and felons are included. Third, certain groups may be stripped of Second Amendment rights, but limits exist. And fourth, persons may not be deprived of Second Amendment rights because they are not "responsible."
The Range court continued that "today, felonies include a wide swath of crimes, some of which seem minor," and that legislatures should not have "unreviewable power to manipulate the Second Amendment by choosing a label." The first federal ban on firearm receipt by felons and the father to today's felon gun ban, 18 U.S.C. § 922(g)(1), was passed in 1961, far short of the requirement that historical precedents be "longstanding." In a passage sure to encourage challenges to other parts of § 922(g), the court stated: "Nor are we convinced by the 1920s and 1930s state statutes banning firearm possession by felons, or the 1960s laws disarming drug addicts and drug users, 1980s laws disarming persons unlawfully present in the United States and persons dishonorably discharged from the armed forces, or 1990s laws disarming domestic violence misdemeanants."
While "Rahimi did bless disarming (at least temporarily) physically dangerous people," the court concluded that there was "no evidence that he [Range] poses a physical danger to others or that food-stamp fraud is closely associated with physical danger." Range was thus eligible under the Second Amendment to receive and possess firearms.
There were four concurring opinions in Range, all of which deserve careful study. Judge Paul Matey focused on the classical sources, beginning with Cicero, that recognized the fundamental right to bear arms for self-defense. He concluded with support "for greater executive review of petitions to restore firearm rights, regardless of whether Congress provides funding for 18 U.S.C. § 925(c)…." That provision empowers ATF to consider petitions for relief from legal disabilities, but since 1992 Congress has prohibited use of funds to do so.
Judge Peter Phipps pointed out that before enactment of the federal felon gun ban, Attorney General Katzenbach incorrectly represented to Congress that "the Supreme Court of the United States long ago made it clear that the amendment did not guarantee to any individuals the right to bear arms." No Supreme Court case made any such claim, and following Heller, "That advice has not aged well."
Judge Cheryl Ann Krause wrote that courts should not "blindly defer to a categorical presumption that a given individual permanently presents a special risk of danger without the opportunity for him to rebut it." Absent other avenues of relief, federal courts should be open to consider those seeking restoration of gun rights. Courts routinely make decisions about gun possession as a condition of bail and in sentencing, and so would be equipped to decide whether rights should be restored.
The final concurrence was by Judge Jane Richards Roth, who opined that "when disarmament is purely based on felon status (not an individualized assessment of danger to others), an indicator of the power to regulate is the maximum penalty for the offense of conviction." Once the maximum penalty for which a convicted person might have been incarcerated passes, the person should be permitted to petition for restoration of rights.
The main difference between Judge Krause's and Judge Roth's concurrences is that the former opined that individuals should be eligible to seek reinstatement of their rights once their sentences are completed, while the latter would require them to wait until the time for the maximum possible penalty ran. Judge Krause's approach is plainly superior, as it reflects the actual punishment meted out for the crime. Notably, both Judges Krause and Roth had dissented from the en banc court's prior decision in favor of Range, but the Supreme Court's emphasis on temporary disarmament in Rahimi apparently persuaded them to reconsider their position.
Dissenting, Judge Patty Shwartz wrote that the majority disregarded the Supreme Court's statements that the felon ban was "longstanding" and "presumptively lawful," that the Second Amendment protects "law-abiding" persons, and that the historical test is not a "regulatory straightjacket." She thought that status-based bans on Native Americans, Blacks, and Catholics were, however repugnant today, proper analogues for the felon ban, as they all were based on being "disloyal to the sovereign."
The Eighth Circuit reached the opposite result as the Third. On August 8, in United States v. Jackson, it upheld the felon ban categorically. Post-Bruen, it had already upheld the ban, but the Supreme Court granted the felon's cert petition, vacated, and remanded for reconsideration consistent with Rahimi. Its subsequent decision replicated its earlier decision.
In the panel decision by Judge Steven Colloton, Jackson held that "there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1)." The court opined that Rahimi does not require a showing of special danger by specific persons who are disarmed by laws applicable to categories of persons. Jackson had been twice convicted of sale of controlled substances, although the court did not specify the type.
The clincher for categorical bans, Jackson reasoned, was based on historical practice: "Not all persons disarmed under historical precedents—not all Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons." Voilà, no as-applied challenges are allowed even if the specific persons are not violent or dangerous.
Dissenting from denial of a petition for rehearing, Judge David Stras noted that the law Rahimi upheld required a finding of "a credible threat to the physical safety" of others. By leaping from "presumptively constitutional to always constitutional," the court "insulat[ed] felon-dispossession laws from Second Amendment scrutiny of any kind." The decision deferred "to Congress's blanket determination that a group numbering in the tens of millions and ranging from murderers to ketchup-bottle tamperers categorically 'present[s] an unacceptable risk of danger if armed.'"
The Fourth Circuit recently agreed with the Eighth, in United States v. Hunt, holding that § 922(g)(1) is not subject to as-applied challenges. Notably, the panel (with Judge Toby Heytens writing) did not rely exclusively on history but also concluded that felons are not even part of the people under the plain text of the constitution. Query what this means for the First Amendment petition and assembly rights and Fourth Amendment rights of felons in the Fourth Circuit, as those rights also are guaranteed to "the people."
One more decision is worthy of note, that of the Sixth Circuit rendered on October 8. United States v. Williams, written by Judge Amul R. Thapar, was decided in the first instance after Rahimi and thus did not go through the GVR procedure. The court allowed that "when the legislature disarms on a class-wide basis, individuals must have a reasonable opportunity to prove that they don't fit the class-wide generalization."
However, the Williams court opined, a person is "dangerous" and may be disarmed "if he has committed (1) a crime 'against the body of another human being,' including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary." Crimes that entail "no threat of physical danger, like mail fraud, tax fraud, or making false statements" would be a harder case, but they were not involved here – Williams had been convicted of aggravated robbery. (He has since filed a cert petition.)
Based on the above four cases, the cert conflict could not be more dramatic. Range and Williams allow as-applied challenges to the felon ban. Jackson and Hunt categorically allow no challenge to the ban. Since felons are the overwhelming majority of persons prosecuted under § 922(g), resolution by the Supreme Court is direly needed.
Given the circuit split, the Supreme Court likely would grant cert if the government seeks review in Range. Whether the government will do so is an interesting question. The Biden administration surely would have – indeed, it did the last time the Third Circuit ruled in favor of Range. But the Trump administration my take a different position on the rights of non-violent felons than the Biden administration did.
Indeed, now that President-Elect Trump's conviction is final he himself is barred by § 922(g)(1) from possessing a firearm, even though his alleged crime had nothing at all to do with violence. Perhaps, the Trump administration will seek review to resolve the circuit split but argue that the Third Circuit was right to rule in favor of Range. It would not be the first time the federal government sought review while urging the Court to affirm a lower court ruling against the government—the Obama administration did just that in litigation challenging the Defense of Marriage Act.
Meanwhile, federal circuits that recognize as-applied challenges will impose on district courts the burden of case-by-case adjudication. Their authority to do so would be necessitated by the duty to protect constitutional rights.
In doing so, such courts would not be substituting themselves for the Attorney General, who is empowered to remove disabilities under 18 U.S.C. § 925(c) based on a finding that the circumstances of the disability and the applicant's reputation are such that he/she "will not be likely to act in a manner dangerous to public safety." The Supreme Court ruled in U.S. v. Bean that district courts have no authority to remove disabilities under the statute if the Attorney General fails to act. Courts may only entertain appeals from administrative action, not from non-action. But courts removing disabilities under the Second Amendment would not be doing so under § 925(c).
Congress could do our district judges a big favor and appropriate funding for ATF to administer § 925(c) again. That may render the circuit conflict moot, as it did in BATF v. Galioto (1986), in which the Supreme Court ruled that an equal protection challenge to § 925(c) became moot when the Firearm Owners' Protection Act of 1986 extended the statute to include all § 922(g) disabilities, including mental commitments.
Despite Congress not funding removal of disabilities for over three decades, ATF's regulation (27 C.F.R. § 478.144) remains on the books with the procedure for filing and processing a petition to remove disabilities. (The regulation states that relief will not be granted if the applicant is prohibited from gun possession by the state law where he resides, but that is invalid because § 925(c) imposes no such condition for relief from the federal disability.) If the petition is denied, § 925(c) entitles the applicant to file a petition for judicial review in which new evidence may be admitted. That provides a check on abusive agency action.
The ball is in Congress's court to restore funding. Otherwise, given the circuit split, it is likely that the Supreme Court will step in to resolve this issue soon.
