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An Update on Range and Challenges to the Felon Prohibitor

  • Date:
  • September 20th, 2023

By: Andrew Willinger

As described in a recent SCOTUS Gun Watch update, the government has sought and received an extension of the deadline to seek certiorari in Range v. Attorney General (the petition, should the government seek certiorari, is now due on October 5).  While it’s not unusual based on past practice for a party to pursue, and receive such an extension, the motion in Range is notable for at least two reasons.  First, it brings into sharp focus the impact Range has already had at the trial-court level within the Third Circuit, despite the decision’s purportedly narrow scope.  Second, it demonstrates how the government may be approaching felon prohibitor cases nationally with an eye toward future Supreme Court review.

On June 6, the en banc Third Circuit granted an as-applied challenge to the federal ban on felon firearm possession in Range—in a decision that we covered hereRange explicitly declined to adopt a “dangerousness” test, under which courts would be charged with determining whether specific felonies are dangerous such that disarming someone convicted of the crime comports with history.  The en banc majority held that it did not need to “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.”  The workability of a dangerousness test was a major focus of the en banc oral argument, which we covered here.  Instead, the majority labeled its decision “a narrow one” applying only to convicted felons who are relevantly similar to the felon in that case:  an individual convicted of “one count of making a false statement to obtain food stamps in violation of Pennsylvania law” nearly 30 years earlier who was sentenced to probation and a small fine and had no subsequent criminal history outside of parking tickets and fishing violations.  While the Range majority characterized its decision as limited, some dissenting judges were not convinced.  Judge Krause, for example, decried the decision as one that potentially “unsettles countless indictments and convictions, debilitates law enforcement, and vitiates our background check system.” 

Range created a circuit split with the Eighth Circuit’s decision in United States v. Jackson, released only 4 days prior.  (On September 15,  the Tenth Circuit aligned itself with the Eighth Circuit in Vincent v. Garland, holding that Bruen did not disturb earlier circuit precedent upholding 922(g)(1)).  In Jackson, a unanimous three-judge panel rejected a Second Amendment challenge to the federal felon prohibitor by an individual with past drug-related convictions.  The panel upheld the law on the basis that “history demonstrates that there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons.”  A second Eighth Circuit panel found a 922(g)(1) challenge by an individual with prior convictions for drunk driving and gun possession foreclosed by Jackson several days later, but with a dissent by Judge Stras noting cryptically “[m]ore to come” (and citing Jackson).  This was, apparently, a reference to the possibility of the en banc circuit rehearing Jackson.  On August 30, the Eighth Circuit declined to re-hear the case by a 7-4 margin over a lengthy dissent authored by Judge Stras.  

In his dissent from the denial of rehearing, Judge Stras argued that “Jackson does not put the government to its task of establishing an ‘historical analogue’” because the decision improperly assumed that the felon prohibitor was constitutional and placed the burden on the defendant to show otherwise.  The result, Judge Stras said, was a presumption of constitutionality and lack of intensive historical analysis that is contrary to Bruen’s directive.  Judge Stras would have found that the laws relied upon by Jackson—including colonial group prohibitions—were motivated by different purposes than 922(g)(1) and “showed a steady and consistent practice [that p]eople considered dangerous lost their arms.”  Judge Stras also rejected a virtuous-citizen theory of the right to keep and bear arms, arguing that perceived dangerousness was the actual reason for disarming groups such as Catholics and Loyalists.  He pushed back against the idea that possible death penalties for felony offenses necessarily meant that the lesser punishment of disarmament would have been permissible, suggesting that there was no consistent Founding Era practice of imposing the death penalty for felonies and that this argument would permit “the government [to] . . . strip felons of other core constitutional rights too.”  Next, Judge Stras noted that non-dangerousness-based provisions were always restricted to specific firearms and did not operate to permanently disarm anyone, as 922(g)(1) does.  Finally, Judge Stras observed that Jackson, in his view, placed too much emphasis on unsuccessful proposals in state ratifying conventions to restrict the Second Amendment to law-abiding citizens. 

Judge Stras compared Jackson’s blanket approach authorizing felon disarmament in every instance to designating the entire island of Manhattan as a sensitive, gun-free zone.  And he would generally reject Supreme Court dicta on the issue and interpret Heller’s endorsement of felon gun bans as merely creating a presumption of constitutionality that is rebutted when a felon shows that he or she is non-dangerous:

After all, a measure can be presumptively constitutional and still have constitutionally problematic applications. As-applied challenges exist for exactly this reason.

Judge Stras closed the dissent by pushing back against the idea that a dangerousness-based standard will be unworkable, noting that trial courts are often called upon to assess danger in other circumstances and arguing “that ‘felony-by-felony litigation is nothing to fear.”  Here, Judge Stras cited the Third Circuit’s pre-Bruen approach allowing as-applied challenged to 922(g)(1) by defendants who could show they were “no  more  dangerous  than  a  typical  law-abiding  citizen”—an approach that I think is roughly on par with that suggested in Range.  

Courts within the Third Circuit, relying on Range, have recently granted motions to dismiss by convicted felons charged under 922(g)(1).  For example, on August 22, Pennsylvania district judge Jennifer Wilson dismissed a 922(g)(1) charge against an individual convicted of multiple past drug offenses (possession of heroin and cocaine, with intent to distribute) in United States v. Quailes.  Judge Wilson found the government had failed to show a historically-supported dangerousness principle but that, even accepting that concept, it would be unclear “whether the disarming of a non-violent drug offender for life is consistent with this tradition” or whether laundering money or maintaining premises are “sufficiently connected to drug trafficking as to be consistent with a tradition of disarming those who pose a danger to society.”  In United States v. Harper, issued on September 1, Judge Wilson granted a motion to dismiss under Bruen by a criminal defendant with “at least thirteen prior felony and eight misdemeanor convictions, . . . include[ing] multiple armed robberies and drug trafficking convictions.”  In Harper, it appears well established that the defendant engaged in criminal conduct that suggests dangerousness; yet Judge Wilson held that,

[e]ven assuming that the examples of the historical regulations are sufficiently relevant and numerous to establish a historical tradition of disarming the dangerous, the Government did not explain to any extent the “how” of each regulation—such as the length of time the individuals were disarmed; whether a conviction was required or any other information about how the dangerousness determination was made; or what kind of offenses qualified as dangerous. The Government also did not present any argument as to the “why” or purpose of the historical regulations.

Despite the en banc majority's attempt to decide Range narrowly, the decision seems to have prompted some lower court judges to take an extremely broad view of the post-Bruen Second Amendment’s impact on felon disarmament.  It’s not entirely clear to me whether the basis for the decision in Harper is solely the finding that the government failed to offer sufficient evidence of the how and why of relevant historical regulations, or whether Judge Wilson would also require exact alignment between historical laws and 922(g)(1) in terms of “how the dangerousness determination was made; or what kind of offenses qualified as dangerous.”  If the latter, that strikes me as a mandate for a historical twin that will almost certainly not exist, and which Bruen also does not require.  Judge Wilson’s approach seems to admit almost no limiting principle—it is hard to imagine that the Third Circuit judges in the Range en banc majority (four of whom previously embraced a version of the dangerousness test in Binderup) believe that historical tradition does not support permanently disarming an individual with multiple past convictions for armed robbery.  In fact, Judge Hardiman’s Binderup concurrence distinguished other 922(g)(1) cases on the basis that those defendants were convicted of violent crimes such as robbery and appeared to embrace the “felon civil death” argument as applied to a limited set of especially serious offenses including robbery.

The government may nevertheless believe it can decline to appeal Range while cabining the scope of the ruling, arguing within the circuit that Range applies only to those whose offense of conviction and post-conviction conduct are similar to Range, and appealing contrary decisions such as Quailes and Harper.  The government may be hoping to force the Third Circuit to provide more clarity in a case with facts that more clearly suggest dangerousness, at least at the time the offense of conviction was committed.  It is also possible the government is monitoring other 922(g)(1) challenges outside of the Third Circuit and will file for certiorari in Range if there is no appellate decision granting an as-applied challenge to 922(g)(1) in a case involving more serious criminal history in the coming weeks. 

The other complicating factor here is Rahimi, which will be argued before the Supreme Court on November 7.  If the decision in Rahimi embraces dangerousness as the relevant historical principle for disarming individuals generally, I think it’s likely both that the Court will reverse the Fifth Circuit’s decision in that case and that a dangerousness-based felony-by-felony approach will prevail under 922(g)(1).  A broad dangerousness holding in Rahimi would, I think, implicitly overrule cases like Jackson which reject as-applied challenges to 922(g)(1) wholesale.  The government is almost certainly approaching Rahimi with this in mind and hoping to avoid a broad ruling that, while reversing the Fifth Circuit on 922(g)(8), imposes a standard that might unsettle other subsections of the statute—hence the government’s focus on the terms “law-abiding” and “responsible” in Rahimi.  This is, I think, a major issue to watch for at the Rahimi oral argument.  It’s likely that the justices will have other subsections of 922(g) in mind, especially the felon ban which is used far more frequently than provisions such as the federal domestic violence restraining order ban.