Third Circuit: Not All Modern Felons Lose Second Amendment Rights

Estimated reading time: 5 minutes

By Dean Weingarten

On June 6, 2023, the United States Court of Appeals for the Third Circuit, in the case Range v Lombardo, issued an opinion:

Some felony convictions are not sufficiently based in the historical record to take away rights protected by the Second Amendment. 

The opinion was agreed to by nine of the fifteen judges in the circuit.  Readers are urged to read the entire 107 pages. Excerpts of the main opinion are included below from the en banc decision.

On page 4, the majority opinion gives a summation:

 Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.

On page 5, a short explanation of the case:

The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann. § 481(a). In those days, Range was earning between $9.00 and $9.50 an hour as he and his wife struggled to raise three young children on $300 per week. Range’s wife prepared an application for food stamps that understated Range’s income, which she and Range signed. Though he did not recall reviewing the application, Range accepted full responsibility for the misrepresentation.

On page 7 the issuance of the Bruen decision: 

While Range’s appeal was pending, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The parties then submitted supplemental briefing on Bruen’simpact. A panel of this Court affirmed the District Court’s summary judgment, holding that the Government had met its burden to show that § 922(g)(1) reflects the Nation’s historical tradition of firearm regulation such that Range’s conviction “places him outside the class of people traditionally entitled to Second Amendment rights.”

On page 9 -10, how the Bruen standard applies:

 Applying that standard, Bruen held “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Id. at 2122.But the “where” question decided in Bruen is not at issue here. Range’s appeal instead requires us to examine who is among “the people” protected by the Second Amendment. U.S. Const. amend. II; see Bruen, 142 S. Ct. at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully 10possess a firearm . . . .”); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009) (distinguishing among “who,” “what,” “where,” “when,” and “how” restrictions).Range claims he is one of “the people” entitled to keep and bear arms and that our Nation has no historical tradition of disarming people like him. The Government responds that Range has not been one of “the people” since 1995, when he pleaded guilty in Pennsylvania state court to making a false statement on his food stamp application, and that his disarmament is historically supported.

On page 15, the government has not carried its burden of proof:

Because Range and his proposed conduct are protected by the Second Amendment, we now ask whether the Government can strip him of his right to keep and bear arms. To answer that question, we must determine 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.” Id. at 2130. We hold that the Government has not carried its burden.

On page 22, concluding the government does not have the constitutional authority to deprive Bryan Range of his rights protected by the Second Amendment.

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a). Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights. We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

Conclusion

Several judges dissented. The arguments of the dissent are of two major thrusts. One is that Heller categorically held felons could be excluded from exercising Second Amendment rights. The other is power granted by modern interpretations of the Commerce Clause overrides the Bill of Rights. 70 of the 107 pages of the Opinion are in the dissents. There is a general flavor of preserving government power in the dissenting opinions, as well as justifying the power by means-ends tests.

This case will likely be appealed to the Supreme Court. The Opinion strikes directly at the power of the government to define felonies at will and thus deprive large segments of the population of the rights protected by the Second Amendment, at will.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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