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ALERT – ALERT – ALERT - ALERT – December 25, 2024
EN BANC THIRD CIRCUIT AGAIN FINDS FELON-IN-POSSESSION BAN UNCONSTITUTIONAL AS APPLIED TO BRYAN RANGE – 18 USC 922(g)(1).
Range v. Attorney General United States of America, 2024 U.S. App. LEXIS 32560 (3d Cir. Dec. 23, 2024).
Eighteen months ago the full en banc Third Circuit found unconstitutional, on the basis of the landmark Second Amendment Bruen opinion, the application of federal felon-in-possession law to a person with a false statement conviction from decades prior. The Supreme Court called upon the Third Circuit to review its work following the Justices' subsequent 2024 Second Amendment ruling in Rahimi. The en banc Third Circuit reached the same Second Amendment outcome in Range v. Attorney General, No. 21-2835 (3d Cir. 2023).
The new majority opinion in Range runs only 20 pages, and it is followed by nearly 150 pages of concurrences and dissents. Here's the full run down for those interested in the headcount:
HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join.
MATEY, Circuit Judge, filed a concurring opinion. PHIPPS, Circuit Judge, filed a concurring opinion. KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part. ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.
As for the basics, here is how Judge Hardiman's majority opinion starts and ends:
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 the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand....
Founding-era laws that forfeited felons' weapons or estates are not sufficient analogues either. Such laws often prescribed the forfeiture of the specific weapon used to commit a firearms-related offense without affecting the perpetrator's right to keep and bear arms generally. See, e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343-344 ("An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns"); Act of Apr. 20, 1745, ch. 3, N.C. Laws 69-70 ("An Act to prevent killing deer at unseasonable times, and for putting a stop to many abuses committed by white persons, under pretense of hunting"). So in the Founding era, a felon could acquire arms after completing his sentence and reintegrating into society.
Against this backdrop, it's important to remember that Range's crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal's entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That's true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.
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. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. 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 for Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.
The Bryan Range's case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because this Range ruling creates a clear circuit split on the constitutionality of 18 U.S.C. § 922(g)(1) in some settings, we would expect to see an appeal to the Supreme Court by the Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the Second Amendment in this particular "narrow" case.
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