In a November 16 panel opinion, the Third Circuit upheld the application of 18 U.S.C. § 922(g)(1), the federal ban on felon possession of firearms, to an individual convicted of making false statements when applying for federal welfare benefits. We covered that opinion in Range v. Attorney General here, and this earlier post by Dru Stevenson contains additional factual background about the case. The panel opinion in Range was vacated in early January, and the Third Circuit reheard the case en banc on February 15 (an audio recording of the en banc argument is available here).
The panel opinion in Range held that Founding Era history showed legislatures had “the power and discretion to use status as a basis for disarmament”—perceived non-compliance with legal and societal norms and community virtues was a historical reason for disarmament, even if the behavior itself was not violent or dangerous. Range, by contrast, had argued that the historical record only supports disarming individuals convicted of dangerous felonies (and takes this position on appeal). The government’s attorney largely conceded, under questioning by Judges L. Felipe Restrepo and Stephanos Bibas, that there is nothing in the record suggesting that Range engaged in violent conduct and that any theory under which he may be disarmed would have to encompass “disrespect for the rule of law,” or some other principle beyond sheer dangerousness. Therefore, the dispute between a status and norm-based theory of disarmament, and one limited to dangerous or violent crimes, is the central question in the case.
In response to questioning at the en banc argument, Range’s counsel proposed an approach whereby “legislatures can use careful rules of thumb to identify inherently dangerous crimes.” This category would include felonies like murder and arson, but would not include the fraud offense for which Range was convicted. Several judges pushed Range’s counsel to clarify the distinction between dangerous and non-dangerous offenses, and exchanges with Judges Cheryl Ann Krause and Patty Shwartz show how this standard might work in practice. Range’s counsel argued that crimes such as embezzlement, money laundering, illegal re-entry into the United States, possession of child pornography, and private computer intrusions into the systems of an entity that could cause massive damage were all inherently non-dangerous, and that individuals convicted of those crimes could not be disarmed and must be able to own and carry firearms immediately upon release from prison. The answers did potentially leave the door open to a fact-based approach under which an individual convicted of a non-dangerous crime could be disarmed if the facts showed that the crime (even though inherently non-dangerous) was committed in a dangerous way on that particular occasion – for example, if someone embezzled money by threatening the victim with a gun.
First, I think the possession of child pornography hypothetical is revealing as to how a danger-based felony disarmament standard might work in practice. Defendants convicted of possessing child pornography face steep prison sentences and present a risk of recidivism that includes potentially engaging in sexual crimes in the future (some studies indicate that approximately 7-10% of those convicted of child pornography offenses escalate to criminal sexual behavior in the future). In addition to lengthy prison terms, child pornography offenders are often subject to extremely strict conditions of supervised release after completing their sentences. The U.S. Sentencing Commission explains that “[c]ommon conditions include . . . outright bans or limitations on the use of computers and the Internet, and limitations on offenders’ ability to be near children (including their own) without supervision.” Moreover, conditions of supervised release often require an individual to submit to warrantless searches of both person and property at any time.
Yet, under Range’s theory of Second Amendment exclusions, these individuals would be permitted to own firearms the minute they leave prison (it’s difficult to imagine any way of committing a child pornography possession offense in a violent or dangerous manner, no matter the facts). An individual convicted of possessing child pornography could be forced to permanently give up such basic rights as the right to be free from searches and seizures, the right to freely associate with other individuals in places of their choosing, and even the right to see their own children without supervision. While the extraordinary constraints that the judicial system frequently places on child-pornography offenders suggest an appreciation that these offenders are especially likely to be dangerous in the future, the Second Amendment would require that these individuals be allowed to obtain and carry firearms because their past conduct was not “inherently dangerous.”
Second, a common theme in post-Bruen decisions has been the fear that legislatures will manipulate the felony category to disarm ever-broader swaths of the adult population. Dissenting from the Third Circuit’s 2020 decision in Folajtar v. Attorney General, Judge Stephanos Bibas wrote that “[t]he category is elastic, unbounded, and manipulable by legislatures and prosecutors. Prosecutors often persuade legislatures to add more crimes to that category to give themselves more plea-bargaining options and leverage.” In the recent district court decision in United States v. Harrison, which we covered here, Judge Patrick Wyrick raised the specter of a state government disarming even those who exceed the speed limit and later wrote:
Imagine a world where the State of New York, to end-run the adverse judgment it received in Bruen, could make mowing one’s lawn a felony so that it could then strip all its newly deemed “felons” of their right to possess a firearm. The label “felony” is simply “too easy for legislatures and prosecutors to manipulate.”
The appellants’ petition for rehearing en banc in Range similarly asserted that, “[i]f the panel’s historical analysis is accepted, then future legislatures have carte blanche to declare individuals or groups outside the protective scope of the Amendment ‘as a matter of separated powers.’” At oral argument, Judge Kent Jordan raised the possibility of a legislature classifying habitual jaywalking as a felony by increasing the maximum penalty to one year and one day; the government attorney responded that its theory would require deference to the legislature’s determination that a crime represents serious disregard for the law (no matter what that crime is).
That is a superficially appealing argument, perhaps, yet one that is rarely if ever accompanied by a sober accounting of those categories of individuals who would have the right to obtain and carry firearms immediately after being released from prison under the most common alternative view (excluding only those convicted of inherently-dangerous offenses, not all felonies). In no state is it currently a felony to mow your lawn or jaywalk, yet a large group of convicted felons would have the right to keep and bear arms immediately upon release under an “inherent dangerousness” theory. Moreover, it is not clear to me how Bruen permits consideration of legislative overreach. Bruen seems to preclude any examination of legislative purpose—whether to defer to a proper legislative purpose, or to strike down a law as improperly motivated (as the Supreme Court frequently has in other contexts; two high-profile examples are U.S. Department of Agriculture v. Moreno and Romer v. Evans). The test looks solely to historical tradition. If historically legislatures disarmed individuals for reasons that we today believe are arbitrary or improper, that’s still part of the history and Bruen doesn’t appear to make an exception allowing modern-day judges to overlay their own perception that a modern law—although historically supported—is motivated by an improper purpose.
As Jake Charles has observed, conventional doctrinal approaches can be “sufficient to condemn any laws that happen to be badly motivated.” A hypothetical state law classifying lawn-mowing as a felony offense solely to disarm otherwise responsible, law-abiding citizens would, of course, be objectionable and an improper abuse of state power; yet Bruen seems to foreclose judicial options otherwise available for combatting such legislative animus. The law either is or is not consistent with history, and that is the end of the inquiry—we must hope that historical legislatures did not engage in the kind of overreach or manipulation we consider improper today.
A final, related observation from the oral argument involves the relevance of data which might show that a particular group of offenders is properly viewed as “dangerous.” Judge Bibas questioned Range’s counsel about the role of the legislature, judicial deference to legislative judgments, and whether judges are “just making up their own minds.” Range’s counsel stated in response that, while “Bruen rules out deference to the legislature,” it leaves open the possibility for judges to consider legislative “judgment[s] or findings of dangerousness.” This is an important point, which to me indicates the continued importance and relevance of empirical studies showing whether certain individuals present an elevated risk of using firearms to commit violence in the future (as in the domestic violence context, for example). It also shows that, if Bruen doesn’t leave room to defer to the legislature’s determination of whether certain offenses are dangerous, it still does leave room to consider such determinations—and it’s not entirely clear to me where that line is. On one hand such findings should certainly be considered, as all parties appeared to agree at oral argument; but, absent policing lower court decisions aggressively, it may be difficult to prevent judges from deferring to legislative findings under the guise of mere consultation.
 It is not entirely clear whether—under Range’s approach—individuals convicted of non-dangerous felonies could ever be temporarily disarmed as a condition of supervised release.