On November 16, the Third Circuit Court of Appeals issued a per curiam, precedential opinion in Range v. Attorney General, applying Bruen to a challenge to the federal felon-in-possession law, 18 U.S.C. § 922(g)(1). The case was brought by an individual convicted of making false statements when applying for a welfare benefit, a misdemeanor under Pennsylvania law that is nevertheless a disqualifying offense under federal law because it carries a maximum prison sentence of more than one year. Range sought declaratory judgment that 922(g)(1) was unconstitutional as applied to him, a non-violent felon, and the district court granted summary judgment for the government applying the old two-step test that included means-ends scrutiny.
The Third Circuit panel embraced a civic theory of the scope of the Second Amendment, affirming the district court’s decision at “step one” of the Bruen analysis because “individuals like Range, who commit felonies and felony-equivalent offenses, are not part of the ‘people’ whom the Second Amendment protects.” Alternatively, the panel found that historical laws disarming non-dangerous individuals due to perceived disloyalty or for breaking the “social compact,” in ways not necessarily tied to any assessment of dangerousness, established a historical tradition of analogous regulation.
The panel first conducted the textual-historical analysis. The panel found that “Bruen provides three insights into pertinent limits on ‘the people’ whom the Second Amendment protects”: (1) Bruen’s repeated reference to “law abiding citizens”; (2) the majority’s endorsement of shall-issue licensing rules that often disqualify felons, even non-violent felons, from carrying guns; and (3) the majority’s failure to overrule Heller’s presumptively-lawful language and statements from the Bruen concurrences that Heller’s holding in that regard is undisturbed. The panel then proceeded to conduct its own review of the historical evidence and arguments, which it ultimately found consistent with Bruen’s “insight” that status-based laws disarming all felons are lawful. (While the panel framed its analysis as a single “step” per Bruen, it’s really two related inquiries. First, do text and history demonstrate that non-violent felons are excluded from the scope of “the people” all together? And, second, if such individuals are within the scope of the amendment, are historical disarmament laws sufficiently analogous to 922(g)(1) to establish a tradition of similar regulation?)
The panel focused on five historical eras. First, religion-based disarmament in England in the 17th century showed “the seizure of weapons from individuals whose status demonstrated, not a proclivity for violence, but rather a disregard for the legally binding decrees of the sovereign.” Second, colonial Protestants similarly took steps to disarm Catholics because they “viewed Catholics as defying sovereign authority and communal values.” Third, Revolutionary War-era laws disarming those suspected to be British loyalists, or those who refused to pledge a loyalty oath, “disarm[ed] individuals whose [behavior] evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community.” Fourth, the panel cited the Dissent of the Minority from the Pennsylvania ratifying convention, which proposed exceptions to the Second Amendment “for crimes committed, or real danger of public injury”—emphasizing that this proposal was phrased in the disjunctive and therefore did not appear to automatically equate the commission of a crime with danger to the public. Fifth, the panel observed that some nonviolent felonies were historically punishable by death and that certain colonial and early state legislatures “authorized the seizure of firearms from individuals who committed non-violent, misdemeanor hunting offenses.”
The panel noted that laws disarming individuals for religious and political reasons are “repugnant” and unconstitutional, but nevertheless “demonstrate legislatures had the power and discretion to use status as a basis for disarmament, and to show that status-based bans did not historically distinguish between violent and non-violent members of disarmed groups.” Concluding from its historical survey that legislatures disarmed individuals “to address the threat purportedly posed by entire categories of people to an orderly society and compliance with its legal norms,” the panel held both that Range fell outside of the “people” protected by the Second Amendment and that 922(g)(1) is consistent with historical tradition.
The decision in Range is highly consequential because it represents the first major federal appellate decision applying Bruen since that case was decided nearly five months ago. Range isn’t facially inconsistent with lower-court decisions issued since Bruen, and the panel collects the many district court cases that have recently upheld the felon-in-possession law in a lengthy footnote. However, Range’s historical analysis of laws disarming those who violate civic norms would likely produce a different result in some recent cases that have struck down other status-based federal firearms prohibitions. For example, consider the recent decision in United States v. Perez-Gallan, striking down the ban on possessing a gun while subject to a domestic-violence restraining order (which I covered here), or the decisions in United States v. Quiroz and United States v. Stambaugh striking down the ban on receiving a firearm while under felony indictment. In these cases, applying the reasoning from Range would likely lead to a court to uphold the relevant provision based on a historical tradition of disarming individuals who violate norms of conduct and the “social contract”—regardless of any adjudication of a criminal charge against them. Therefore, Range’s impact is potentially quite broad, if its analysis is ultimately adopted by other circuits.
Range also illustrates the vast doctrinal upheaval created by Bruen and how that decision has, in certain instances, been misapplied at the district court level. One might legitimately quibble with Range’s historical analysis: perhaps the judges got it wrong, cherry-picked from the historical evidence presented to them, or relied on briefing that was incomplete. But if you accept the panel’s analysis of the history, then Bruen is clear that judges must follow that history no matter where it takes them.
In Perez-Gallan, Judge Counts wrote:
Nor should the person who negligently (irresponsibly) forgets to set out the “Wet Floor” sign after mopping lose their Second Amendment rights. Of course not. This Court doesn’t think the Government wants such results, but the absurd consequences are there all the same.
Put aside for a moment the fact that this passage compares the risk of slipping on a wet floor to the risk of being a victim of domestic violence (the defendant in Perez-Gallan was under a domestic violence restraining order as a condition of release after he was arrested for assault). Bruen seems to make no exception for “absurd consequences,” one way or the other. When all of the answers are tied to history, courts presumably need to follow the principles they can glean from that history wherever those principles lead. That is the allure of Bruen’s approach and—whatever one thinks of Bruen’s test—it’s clear that the Supreme Court doesn’t want a judge substituting his or her own feelings for the historical record, full stop. If history indicates that legislatures can disarm those who violate civic norms without any evidence of dangerousness or violence, then such laws are constitutional today. Under Bruen, there is no consideration of whether that history is “repugnant,” contrary to modern values, or produces “absurd consequences.” Bruen does not say, for example, that the government must put forward analogous laws unless those laws were discriminatory, in which case they should be discarded.
When a judge decides a case in part based on his or her conclusion that a certain holding would produce absurd consequences, that decision is not based solely on the nation’s historical tradition of regulation. Bruen rejects interest balancing and means-ends scrutiny as judge-empowering. It explicitly rejects an approach that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests”—in other words, judges can’t decide that a statute’s policy benefits are so important that they outweigh the right to keep and bear arms. But the corollary is that judges also cannot decide on their own that a law’s policy benefits are so minimal that it would be absurd for a government to enact the law, and therefore strike the law down. If you read Bruen honestly, even gun laws with no benefit whatsoever may very well be constitutional, if they are steeped in historical tradition.
To be clear, neither the author (nor, one would imagine, most of the country) supports laws that disarm those who forget to leave out a “wet floor” sign, neglect to hold a door for an elderly person, or jaywalk. The reason those laws are objectionable to most is that we wouldn’t expect them to be effective in preventing gun violence or misuse. Yet, our modern perception that these laws are nonsensical no longer has any bearing on their constitutionality. Legislatures may choose not to pass such laws but, if these laws are passed, courts must evaluate them solely by reference to Founding-Era history.
As the opinion in Range recognizes, other Third Circuit judges and at least one sitting Supreme Court justice have already disagreed with the conclusion that non-violent felons can be disarmed under the Second Amendment. Justice Barrett, in her dissent from the Seventh Circuit’s 2019 decision in Kanter v. Barr as a circuit judge, would have held that “Heller forecloses the ‘civic right’ argument on which a virtue limitation depends.” In a partial concurrence to the Third Circuit’s 2016 decision in Binderup, Judge Hardiman (joined by four other judges) similarly interpreted the history to support only exclusions from the right based on perceptions of dangerousness. And, dissenting from 2020 decision in Folajtar, Judge Bibas of the Third Circuit wrote that “[t]he virtue theory is not supported by history.”