Range v. AG United States, 2023 U.S. App. LEXIS 13972 (3d Cir. June 6, 2023) (HOLDINGS: [1]-The federal "felon-in-possession" law—18 U.S.C.S. § 922(g)(1)—violated defendant's Second Amendment right to keep and bear arms because despite defendant's false statement conviction, he remained among "the people" protected by the Second Amendment.)

I. Introduction of the case:

Range sued in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration that 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied to him. He also requested an injunction prohibiting the law's enforcement against him. Range asserts that but for § 922(g)(1), he would "for sure" purchase another deer-hunting rifle and "maybe a shotgun" for self-defense at home.  The District Court denied relief [Range v. Lombardo, 557 F. Supp. 3d 609, 611 (E.D. Pa. 2021)] and Range appealed.

The Third Circuit in applying controlling precedents, held that Range's crime was "serious" enough to deprive him of his Second Amendment rights. Id. In doing so, the Court noted the two-step framework we established in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). The Court began - and ended - its analysis at the first step. It considered five factors to determine whether Range's conviction made him an "unvirtuous citizen" of the kind historically barred from possessing a firearm: (1) whether the conviction was classified as a misdemeanor or a felony; (2) whether the elements of the offense involve violence; (3) the sentence imposed; (4) whether there was a cross-jurisdictional consensus as to the seriousness of the crime, Binderup v. Att'y Gen., 836 F.3d 336, 351-52 (3d Cir. 2016) (en banc) (plurality); and (5) the potential for physical harm to others created by the offense, Holloway v. Att'y Gen., 948 F.3d 164, 173 (3d Cir. 2020). Range, 557 F. Supp. 3d at 613-14.

The Government conceded that four of the five factors favored Range because he was convicted of a nonviolent, non-dangerous misdemeanor and had not been incarcerated. Id. at 614. But the District Court held the "cross-jurisdictional consensus" factor favored the Government because about 40 jurisdictions would have classified his crime as a felony. Id. at 614-15. Noting that our decisions in Holloway, 948 F.3d at 177, and Folajtar v. Att'y Gen., 980 F.3d 897, 900 (3d Cir. 2020), had rejected as-applied challenges to § 922(g)(1) despite only one of the relevant factors weighing in the Government's favor, the District Court held that the cross-jurisdictional consensus alone sufficed to disarm Range. Range appealed.

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). A panel of the Third Circuit Appellate 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 and that Range's conviction "places him outside the class of people traditionally entitled to Second Amendment rights." Range v. Att'y Gen., 53 F.4th 262, 266 (3d Cir. 2022). Range petitioned for rehearing en banc which was granted.

Following the Supreme Court's guidance in Bruen, the Court of Appeals must now apply the established method to the facts of Range's case. Both Range and the Government agree that means-end scrutiny is no longer conducted, and the panel's previous statement in Range's case acknowledged that Binderup's seriousness inquiry is no longer applicable in light of Bruen. According to Bruen, the first step is to determine whether the text of the Second Amendment applies to the person in question and their proposed conduct. If the Second Amendment applies, the burden of proof shifts to the government. The government is now required to affirmatively prove that its firearms regulation aligns with the historical tradition that sets the limits of the right to keep and bear arms. In Range's case, the Court of Appeals will need to assess whether the text of the Second Amendment applies to Range and his desire to possess firearms. If the Second Amendment does apply, the government must then demonstrate that its prohibition on Range's possession of firearms is consistent with the historical tradition of firearm regulation.

The Court of Appeals began by addressing the question of whether Range is considered one of "the people" who possess Second Amendment rights. The Government argued that Range's 1995 conviction removed him from the category of "the people" protected by the Second Amendment, claiming that the right to bear arms historically extends only to law-abiding, responsible citizens.

The Court examined the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), where the Court referred to "law-abiding citizens" in the context of weapons typically possessed by them for lawful purposes. However, the Court in Heller also clarified that "the people" referred to all members of the political community and not an unspecified subset, and that the Second Amendment right presumptively belongs to all Americans. Range argues that the phrase "law-abiding citizens" should not be interpreted as rejecting Heller's interpretation of "the people."

The Court agreed with Range for several reasons. First, in McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020 (2010), Heller, and Bruen, the criminal histories of the plaintiffs were not at issue, so the references to "law-abiding, responsible citizens" were dicta and should not be over interpreted. Second, other constitutional provisions also refer to "the people" and recognize their rights in various contexts, suggesting a consistent meaning across provisions. The Court concludes that excluding Range from "the people" for Second Amendment purposes would also deny him other constitutional rights, and there is no reason to adopt an inconsistent reading of "the people" across different provisions.

The Court of Appeals rejected the Government's argument that only "law-abiding, responsible citizens" are protected by the Second Amendment.

The Court found that the phrase "law-abiding, responsible citizens" is both expansive and vague, and it does not mean that any minor offense or infraction would remove someone from the category of "the people" protected by the Second Amendment. The Court agreed with the dissenting opinion of then-Judge Barrett in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), which stated that while certain groups may be constitutionally stripped of their right to keep and bear arms, all people have the inherent right to do so.

The Court also highlighted that the modifier "responsible" in the phrase "law-abiding, responsible citizens" only adds to the vagueness of the category. Different individuals may have varying opinions on what constitutes a "responsible" citizen. Granting legislators the authority to exclude individuals from Second Amendment protection based on their judgment of who is "law-abiding" or "responsible" would give them unchecked power and undermine the core principles of the Second Amendment.

Based on the reasoning in Heller and its progeny, the Court concluded that Range remains among "the people" protected by the Second Amendment, despite his 1995 conviction for making a false statement. The Court then confirmed that Range's request to possess a rifle for hunting and a shotgun for self-defense at home falls within the scope of Second Amendment-protected conduct as defined by Heller. Therefore, the Second Amendment's plain text covers Range's proposed conduct, and his right to possess firearms is presumptively protected by the Constitution.

II.  Our in Depth Analysis:

According to the Court of Appeals, for the government to justify applying Section 922(g)(1) to Range and strip him of his Second Amendment rights, it must demonstrate that this application is consistent with the historical tradition of firearm regulation in the United States. The burden lies with the government to establish that Section 922(g)(1) falls within the historical boundaries of the right to keep and bear arms.

The Court clarified that historical tradition can be established through analogical reasoning, which does not require an exact historical replica but rather a well-established and representative historical analogue. Regulations aimed at addressing longstanding issues must be distinctly similar to a historical analogue to be compatible with the Second Amendment.  

In the case of firearms regulations, the Court referenced Bruen, which provides two metrics for determining the similarity between historical and modern regulations: how and why the regulations burden the right of law-abiding citizens to armed self-defense. Therefore, the government must demonstrate that Section 922(g)(1) applies with the historical tradition and is either distinctly similar to a historical analogue or relevantly similar to address a longstanding issue while not unduly burdening law-abiding citizens' right to armed self-defense.

Here, the Government argued that it had met its burden by relying on the Supreme Court's statement in Heller that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." The Court reiterated this point in McDonald and Justice Kavanaugh, in his concurring opinion in Bruen, referred to felon-possession prohibitions as "presumptively lawful" under Heller and McDonald. Section 922(g)(1) falls under this category as a straightforward prohibition on the possession of firearms by felons.

The Government further asserted that federal law has generally prohibited individuals convicted of crimes punishable by more than one year of imprisonment from possessing firearms since 1961. However, the earliest version of that statute, the Federal Firearms Act of 1938, only applied to violent criminals. Over time, the law expanded to include both felons and misdemeanants convicted of qualifying offenses. This evolution of the law has been acknowledged by the First Circuit in United States v. Booker, 644 F.3d 12 (1st Cir. 2011) and the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010).

• Historical Traditions do not Apply

In sum, the Government argued that Section 922(g)(1) aligns with the historical tradition of prohibiting felons from possessing firearms, as recognized in Heller and McDonald, despite the expansion of the law to include misdemeanants over time. The court argued that even if the 1938 Act could be considered "longstanding" enough to satisfy the requirement set forth in Heller, it is questionable whether that Act would apply to Range. However, the court asserts that the 1961 version of Section 922(g)(1) cannot be considered "longstanding" in the context of the Second Amendment's ratification. Given that it was enacted approximately 170 years after the ratification of the Second Amendment and nearly a century after the ratification of the Fourteenth Amendment, the court deemed it insufficient to meet the standard of a "longstanding" regulation.

The court concluded that the 1961 iteration of Section 922(g)(1) does not fulfill the Government's burden of establishing a historical tradition of firearm regulation.  Furthermore, the court highlighted that historical restrictions on firearms in sensitive places, as mentioned in Bruen, do not give legislatures the authority to designate any place as sensitive and ban firearms there. Additionally, the court addresses the government's argument that "founding-era felons were exposed to far more severe consequences than disarmament." While it acknowledges that some felony offenses were punishable by death during the Founding era, the court argued that such severe punishments reflected the judgment of the founding generation regarding the gravity of those offenses and the need for harsh punishments. The court suggests that this historical context does not justify the disarmament of felons under the current understanding of the Second Amendment.

The court argued that the government's attempt to analogize early laws that punished nonviolent crimes with death to Range's situation is inadequate. The fact that some nonviolent crimes were punished by death during the Founding era does not imply that the specific punishment of lifetime disarmament is rooted in the historical tradition of our nation. The court emphasized that just because some individuals convicted of certain offenses were executed by founding-era governments does not mean that the government could constitutionally strip a felon of their right to possess arms if they were not executed.

The court also highlights that felons were able to repurchase arms after completing their sentences and reintegrating into society, which aligns with Range's situation. Therefore, the court concludes that the government's attempt to disarm Range is not "relevantly similar" to earlier statutes allowing for execution and forfeiture.

The court countered the government's argument by pointing out that Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator's general right to keep and bear arms. However, Range's crime of making a false statement on a food stamps application did not involve a firearm, so there was no criminal instrument to forfeit. Even if there were, the court argues that government confiscation of the instrument of the crime differs from a lifetime ban on firearm possession based on a person's status as a convict.  Furthermore, the court notes that the government has not cited any statutes or cases that preclude a convict who has served their sentence from purchasing the same type of object they used to commit a crime.

The court highlights that forfeiture cases do not typically prevent convicts from regaining their possessions, including firearms, except in cases where forfeiture is followed by execution. The court asserted that the government's argument does not hold, as it has not presented any evidence of a historical tradition that supports a lifetime ban on firearm possession for felons.

Lastly, the court dismissed the government's argument from authority, which relies on decisions from other circuit courts and district courts that have ruled in favor of felon-possession prohibitions. The court argued that those decisions did not provide sufficient justification and that the government failed to establish a historical tradition or analogy that supports the constitutionality of § 922(g)(1) as applied to Range. The court rejected the government's reliance on circuit court opinions and district court decisions, pointing out that those opinions were rendered prior to the Bruen case, which has implications for the interpretation of the Second Amendment. The court also emphasized that district courts are bound to follow the precedent set by their respective circuit courts.

• The Narrowness of the Range Decision

Range is a limited and narrow decision. 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 and bear arms.

V. CONCLUSION

The lower court's decision was reversed and remanded 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.

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