Second Amendment Roundup: Circuit Conflict in Felon Gun Ban Cases
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 ha
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