Litigation Highlight: En Banc Third Circuit Holds Felon Prohibitor Unconstitutional in Certain Applications
In a June 6 decision in Range v. Attorney General, a majority of judges of the en banc Third Circuit held 922(g)(1)—the federal statute banning possession of firearms by convicted felons—unconstitutional under the Second Amendment as applied to an individual convicted of making a fraudulent statement in an application to obtain food stamps. Last November, a unanimous Third Circuit panel upheld the statute and ruled against Range (we covered that decision here). The panel decision was then vacated for rehearing en banc, the full court heard oral argument in February (which we covered here), and a nine-judge majority ultimately reached the opposite result as the panel and held the statute unconstitutional as applied to Range.
The majority opinion by Judge Hardiman first laid out the factual and procedural history of the case and then summarized Bruen and its test for Second Amendment challenges. The opinion turned next to a “threshold question: whether Range is one of ‘the people’ who have Second Amendment rights.” The majority explained that, in its view, the references in Heller and Bruen to “law-abiding” citizens were dicta and the phrase “the people” in the text of the Second Amendment should be read broadly, consistent with other constitutional provisions. Endorsing then-Judge Barrett’s position in Kanter v. Barr that “a person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it,” the opinion further observed that limiting Second Amendment rights to “law-abiding” citizens would excessively “devolve authority to legislators to decide whom to exclude from ‘the people.’” Therefore, the majority found that Range is within “the people” protected by the Second Amendment.
The majority framed the second Bruen inquiry as “whether the Government has justified applying § 922(g)(1) to Range ‘by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation’” (quoting Bruen). The majority first found that the felon prohibitor itself is not sufficiently longstanding under Bruen—Range would not have been prohibited from possessing a gun under federal law until 1961, which “falls well short of ‘longstanding’ for purposes of demarcating the scope of a constitutional right.” The majority also rejected laws disarming groups such as “Loyalists, Native Americans, Quakers, Catholics, and Blacks” as analogues because “the Government does not successfully analogize those groups to Range and his individual circumstances.” Even though early American state governments occasionally put nonviolent felons to death for their crimes, the majority observed that:
[t]he greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed.
In fact, the majority noted, “a [non-executed] felon could ‘repurchase arms’ after successfully completing his sentence and reintegrating into society” and “Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator’s right to keep and bear arms generally.” Finally, the majority rejected earlier circuit-court precedent upholding 922(g)(1) because those cases were decided pre-Bruen. Notably, while observing that Range had argued that the historically correct limiting principle for felon disarmament is “dangerousness,” the majority expressly declined to adopt that test:
We need not decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not. (emphasis added)
Because the majority found that historical tradition does not support disarming Range, it reversed the district court’s prior decision and remanded with instructions to enter judgment in Range’s favor on his as-applied challenge to 922(g)(1).
There were a number of concurring and dissenting opinions filed in the case. Judge Porter wrote a concurrence arguing that it is improper, in his view, to use antebellum state law to determine the scope of the federal Second Amendment “because the states—unlike the national government—retained sweeping police powers and weren’t originally constrained by the Bill of Rights, [and therefore] were free to regulate the possession and use of weapons in whatever ways they thought appropriate.” Judge Porter also took aim at the expansion of the federal government’s commerce clause power beginning in the 1930s and suggested that historical state regulation cannot be combined with an expansive interpretation of the Commerce Clause because this would under-protect Second Amendment rights. Judge Ambro, joined by Judges Greenaway and Montgomery-Reeves, concurred to clarify that (in their view) the decision in Range is limited to its factual circumstances and “does not spell doom for 922(g)(1)” as a whole. The Ambro concurrence argued that colonial and early American laws illustrate a general presumption that the government may “keep arms from those perceived to threaten the orderly functioning of society”—but that the presumption was rebutted in this specific case.
Judge Shwartz, joined by Judge Restrepo, filed a dissenting opinion arguing that “[t]he Majority’s analysis is inconsistent with the Supreme Court’s jurisprudence and has far-reaching consequences.” Notably, this dissent contended that “the founders categorically disarmed  members of [certain] groups because the founders viewed them as disloyal to the sovereign” and that “[t]he felon designation similarly serves as a proxy for disloyalty and disrespect for the sovereign and its laws.” The Shwartz dissent took a fundamentally different view of Range’s offense than the majority opinion, characterizing the offense as “stealing from the government, a crime that directly undermines the sovereign.” Judge Shwartz concluded by arguing that—contrary to the view expressed in the Ambro concurrence—the decision will have broad consequences for all felon disarmament.
Judge Krause also wrote a lengthy dissent in which she emphasized the potentially broad scope of the holding, argued that the majority opinion “tracks precisely the Fifth Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers,” and noted that decision unnecessarily creates a circuit split over the felon prohibitor. Judge Krause asserted that the majority applied Bruen far too narrowly and ignored the history of legislative discretion to disarm those who, “based on their status,  were deemed non-law-abiding subjects,” and she argued that the opinion “replaces [a] straightforward test with an opaque inquiry—whether the offender is ‘like Range.’” Judge Krause further highlighted several possible consequences of the decision—including that it “makes the statute’s mens rea impossible to establish” under Rehaif, which will complicate the operation of the federal criminal background check system for gun purchases. Judge Krause contended that these undesirable consequences could have been avoided had the majority issued “a purely prospective declaratory judgment, restoring Range’s gun rights going forward,” rather than ruling directly on the constitutionality of 922(g)(1).
Finally, in a short dissent, Judge Roth explained that she would have found Range protected by the Second Amendment but that, in her view, Range lacked standing to challenge 922(g)(1) because he “failed to set forth the necessary interstate commerce connections to allow federal jurisdiction of his complaint.”
The decision in Range came just four days after the Eighth Circuit—in a published decision in United States v. Jackson—rejected an as-applied challenge to 922(g)(1) by an individual who argued that “his drug offenses were ‘non-violent’ and do not show that he is more dangerous than the typical law-abiding citizen.” The Eighth Circuit panel held that Bruen “did not disturb” Heller’s endorsement of the felon prohibitor as presumptively lawful and “conclude[d] that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” Specifically, Jackson observed that interpreting Heller to create only a rebuttable presumption of constitutionality is “an unlikely reading” because it would “cast doubt on the constitutionality of [the felon ban] in a range of cases despite the Court’s simultaneous statement that ‘nothing in our opinion should be taken to cast doubt’ on [that law].”
Jackson appears to endorse the view adopted by the original panel opinion in Range that “history supports the authority of Congress to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.” However, Jackson also holds that—even if one were to view “dangerousness” or “violence” as the relevant inquiry—“there is no requirement for an individualized determination  as to each person in a class of prohibited persons” and a reasonable legislative judgment that an entire class of individuals (such as convicted felons) is dangerous comports with historical tradition. Interestingly, the Jackson panel observes that this approach might actually be more permissive of gun regulation in some instances than using means-ends scrutiny (the Third Circuit in Binderup, for example, vindicated an as-applied challenge to 922(g)(1) by a non-violent felon when applying intermediate scrutiny pre-Bruen), but found this a natural “product of the method of constitutional interpretation endorsed by Bruen.” On June 13, a separate Eighth Circuit panel rejected another as-applied Second Amendment challenge to 922(g)(1) by a criminal defendant originally convicted of drunk driving because “[t]his contention is foreclosed by United States v. Jackson, where we concluded that there is no need for felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant.”
While Range and Jackson dealt with different disqualifying felony convictions—and Range is almost certainly a more sympathetic challenger than Jackson, who had two recent convictions for selling narcotics—the decisions create a clear circuit split both as to the legal effect of Heller’s carveouts and the proper historical analysis for felon disarmament under Bruen step two. The majority opinion in Range gestured only briefly to Jackson, perhaps due to the short intervening time period, but the Eighth Circuit’s opinion there is more heavily cited in the Range dissents. As was strenuously debated during the Range oral argument, it’s difficult to see how the en banc decision does not set the stage for the type of felony-by-felony adjudication that Jackson specifically rejects. In fact, the en banc majority’s choice not to adopt a “dangerousness” test makes things even more uncertain, as Judge Krause observes in dissent:
The particulars are plentiful, but the majority never specifies, among these and other descriptors of Range’s life pre- and post-conviction, the respects in which an offender must be “like Range” to preclude the application of § 922(g)(1).
I think that’s generally right, and it just isn’t clear from the majority opinion why the judges believe that disarming someone like Range is not supported by historical tradition. Moreover, if post-conviction conduct and personal circumstances are relevant—as the majority suggests—then it’s hard to see the outcome here as solely a result of Range’s lack of a dangerous or violent criminal history. Even someone convicted of assault (or a more serious violent felony), for example, might be “like Range” in that they have lived an exemplary life for decades after the offense of conviction. I ultimately don’t believe that the majority’s approach is tenable going forward. Rather, the Third Circuit—and any other courts that limit application of 922(g)(1)—will have to settle on a principled basis by which to distinguish felonies where disarmament is historically supported from those where it is not. But that is a difficult line to draw, as the oral argument in Range illustrated. For example, are the crimes of possessing child pornography or orchestrating a digital intrusion of a sensitive internet database inherently dangerous? The majority’s decision not to embrace dangerousness (or any standard) may be a result of disagreement among the judges about which felonies should be covered.
Finally, a quick word about Judge Porter’s concurrence. The concurrence argues that (1) “it’s unclear what many early state laws prove about the contours of the Second Amendment right” because some states didn’t have a Second Amendment analogue when those laws were adopted, (2) “using state law to define a federal constitutional amendment that was fashioned to protect individual rights and a reserved power poses a doctrinal conundrum” because historically the state police power was quite broad, and (3) “[s]etting the federal floor through a combination of antebellum state police power and Congress’s post-New Deal commerce authority, as the dissents propose, would underprotect the constitutional right to keep and bear arms.” Judge Porter seems to be saying that early state laws aren’t as relevant to the Bruen inquiry when dealing with a federal regulation because many states didn’t have state-analogue provisions in place when those laws were adopted, that the relatively recent emergence of more expansive federal gun regulation through the Commerce Clause is entirely irrelevant under Bruen, and that judges must not improperly use earlier state regulations to act as though the federal government has always possessed broad power to regulate firearms. His focus on the Commerce Clause is interesting, as historically rooted Commerce Clause arguments against federal gun regulation seem to be gaining some currency.
But how is grafting our modern-day conception of an expansive federal Second Amendment that applies to state governments onto a historical record where the amendment didn’t apply to the states any more faithful to history than the approach Judge Porter decries? For one, many of the states that regulated individual gun possession most heavily in the 1800s—including by banning or heavily taxing a large number of concealable weapons—did so with a state constitutional arms-bearing protection in place (Alabama in 1837, Tennessee in 1879, and Arkansas in 1881). Moreover, a true return to first principles would roll back both the scope of the Commerce Clause and the judicially construed scope of the Second Amendment. This would presumably mean that state governments in states without a Second Amendment analogue in their state constitution today (New York, New Jersey, and so on) would be “free to regulate the possession and use of weapons in whatever ways they thought appropriate” as they were historically—which Judge Porter almost certainly would not accept. In other words, a return to the original scope of the federal Commerce Clause power (which certainly expanded dramatically during the New Deal era) is historically anomalous unless accompanied by corresponding adjustments in other areas and wouldn’t necessarily result in greater protection for Second Amendment rights. It is no less a matter of “retconning” to transfer our modern-day conception of a federal judicial power to enforce federal constitutional provisions against state governments onto a historical canvas where the state police power was generally immune to such incursions.
 Range’s offense of conviction was a misdemeanor under Pennsylvania law but a disqualifying felony under 922(g)(1) because it carried a maximum penalty of five years’ imprisonment and was thus “a crime punishable by imprisonment for a term exceeding one year.”
 The panel decision in that case, United States v. Cunningham, was two-to-one. Judge Stras dissented, noting only that there would be “[m]ore to come” and citing to the decision in Jackson—perhaps suggesting that Jackson could be re-heard by the en banc court.