Bryan Range v. Attorney General of the U.S., et al, No. 21-2835, 2023 WL 3833404 (3d Cir. June 6, 2023).
On June 6, 2023, an en banc panel of the United States Court of Appeals for the Third Circuit ruled that 18 U.S.C. §922(g)(1) (the “felon in possession of a firearm” statute) is unconstitutional as applied to one individual, Bryan Range. While the decision purports to be “a narrow one[,]” the rationale driving the decision questions whether statutes prohibiting those convicted of crimes punishable by more than one year in prison continue to pass constitutional parameters.
The Third Circuit found “Range is one of ‘the people’ who have Second Amendment rights” regardless of his prior conviction for making a false statement to obtain food stamps, and that “a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of “longstanding” for purposes of demarcating the scope of a constitutional right,” the “Government has not shown that the Nation’s historical tradition of firearms regulation supports depriving Range of his Second Amendment right to possess a firearm” and as a result, the prohibition against his being able to lawfully purchase, possess, and utilize firearms and ammunition is unconstitutional as-applied to him.
Prior to the US Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, and generally, for the 61 years since the current version of §922(g) has been codified, an analysis of Range’s case would have required some discussion of the means-ends scrutiny of the law at issue. Essentially, whether the challenged firearm law struck an appropriate balance between the Second Amendment right of the felon versus the need for public safety. Since the US Supreme Court’s decision in United States v. Heller, the Third Circuit Court of Appeals performed this analysis using what it called a “multifactored seriousness inquiry.” Under that test, the government probably could not strip an individual of his or her right to possess a firearm for jaywalking but could (and obviously did), strip people of their Second Amendment rights for things like making false statements to the government.
Both parties in Range conceded the seriousness inquiry is no longer effective. Instead, as set forth in Bruen, “the government may not simply posit that the [firearms] regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Accordingly, whether a firearm restriction complies with Second Amendment rights no longer depends on whether the law makes good policy sense or promotes an important need. Rather the inquiry is whether a comparator to the regulation can be found in this Nation’s historical firearm laws.
Notably, Bruen involved a challenge to a New York State statute requiring an individual to show a “special need for self-protection distinguishable from that of the general community” in order to obtain a license to carry a handgun in public. While holding the New York statute unconstitutional, the Court provided no real guidance as to how this analysis would differ – if at all – when considering the §922(g) felon in possession statutes.
This brings us to the importance of Range. Though the decision purports to do nothing more than to allow Bryan Range (a man from Pennsylvania who served only a probation sentence in the 1990s for lying to qualify for food stamps) to obtain a firearm, the implications of that decision are enormous. As stated by Judge Schwartz in dissent, “[t]oday, the Majority of our Court has decided that an individual convicted of fraud cannot be barred from possessing a firearm. While my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”
According to the United States Sentencing Commission, 7,454 people were convicted of §922(g) offenses in 2021, and 96.9% of those convictions resulted in custodial sentences. Ultimately, the Supreme Court will have to decide where the line between constitutional and unconstitutional lies. Justice Kavanaugh, joined by Chief Justice Roberts, seemed to anticipate this issue in their Bruen concurrence when they noted that felony-dispossession is “presumptively lawful.” Therefore, the Court may choose to outright distinguish Bruen from felony dispossession cases by applying a different analysis. Another option would be a clear rule that §922(g) is unconstitutional when applied to non-violent offenders, which would likely require finding some historical analogue to support the proposition that a certain indicia of dangerousness warrants dispossession of which were lengthy terms of imprisonment. Writing of §922(g), the Range majority decision references crimes as diverse as using profane language on the radio, returning out-of-state bottles or cans to a Michigan recycling center, and library theft of more than $150.
Although the implication of the line of cases involving Range and Bruen has yet to be fully realized, many longstanding gun laws clearly rest on shaky constitutional ground, particularly those with no clear historical comparator. As we wait for the Supreme Court to clarify the test in Bruen as applied to a wider-range of gun laws, law makers looking to regulate guns in a way that withstands constitutional scrutiny would be wise to tread carefully.
While an important decision, it is noteworthy this was not a facial challenge, where the Third Circuit held that prohibition against all non-violent misdemeanants is unconstitutional. Rather, it simply held that as applied to Mr. Range’s background and conviction, it was unconstitutional to strip him of his Second Amendment rights. As a result, individuals in similar situations will need to file lawsuits against the U.S. Government to challenge their individual circumstances. If you feel your situation applies, contact Laguzzi Law, P.C.