Third Circuit Deems Federal Felon-in-Possession Law Unconstitutional

Earlier this month, the Third Circuit, sitting en banc, found the federal felon-in-possession statute unconstitutional as applied. The decision was based on the new interpretive approach announced in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). The Third Circuit’s ruling is a massive decision that seems virtually certain to be reviewed by the Supreme Court. Keep reading for more details.

The shortest possible recap of Bruen. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court ruled that the Second Amendment protects an individual right to bear arms for lawful purposes like self-defense. In Bruen, the Court held that gun restrictions are constitutional only if they are consistent with our nation’s historical tradition of gun regulations. The burden is on the party defending a law to show that there were analogous, though not necessarily identical, regulations in place during the Founding era. As detailed in earlier posts here and here, Bruen represents a major shift in how Second Amendment claims must be analyzed, and it has sparked a great deal of litigation.

The background of Range. The Third Circuit case is Range v. Attorney General, __ F.3d __ (3d Cir. 2023) (en banc). The facts are not in dispute. Bryan Range pled guilty in Pennsylvania state court in 1995 to making a false statement to obtain $2,458 worth of food stamps. He could have received up to five years in prison for the offense, but was actually sentenced to probation. Pennsylvania classifies the offense as a misdemeanor, but for purposes of the federal felon-in-possession law, it counts as a felony because it has a maximum potential penalty of more than two years in prison. See 18 U.S.C. § 922(g)(1), 921(a)(20)(B). Federal law therefore barred Range from possessing a gun.

He sued the Attorney General, seeking a declaratory judgment that the felon-in-possession law was unconstitutional as applied to him and asserting that he wanted to buy a rifle for hunting and maybe a shotgun for self-defense. A federal district court judge granted summary judgment to the Attorney General, applying the interpretive approach the lower courts used prior to Bruen. Range appealed. Although Bruen was decided while his appeal was pending, a three-judge panel of the Third Circuit affirmed. See Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022).

The panel reasoned that people with “criminal records [that] evince disrespect for the law are outside the community of law-abiding citizens entitled to keep and bear arms,” meaning that Range was not covered by the Second Amendment at all and couldn’t even raise a claim. Even if he could go forward, the panel found an ample “tradition of firearm regulation” directed at those convicted of crimes. The en banc court then granted review.

The majority opinion. All the opinions in the case are available here. The majority opinion was written by Judge Hardiman. It commanded nine of fifteen possible votes. The majority quickly dispensed with the panel’s idea that Range was not part of “the people” to whom the Second Amendment applies. The majority found that the Amendment’s protection is not limited to “law abiding” individuals, despite some language in Heller to that effect. Rather, like other constitutional rights, the right to bear arms belongs to “all Americans,” or put differently, to all members of the “political community.”

Then the court found that the Government failed to carry its burden to show a historical analogue for the felon-in-possession law. The majority acknowledged that Heller and later cases were careful to say that they didn’t cast doubt on laws prohibiting felons from possessing guns. But that’s not the same thing as stating that such laws are constitutional, and the Court’s recent Second Amendment opinions did not directly involve the constitutionality of such laws. Section 922(g)(1) itself cannot provide the necessary historical analogue, as it has existed only since 1938. Even then, it applied only to certain violent felons, expanding to cover all felons only in 1961. Those dates are far too late to establish a Founding-era tradition of regulation. To the contrary, the majority found, “Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator’s right to keep and bear arms generally.”

The majority also rejected as not analogous other historical limitations relied on by the Government: “That Founding-era governments disarmed groups they distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove that Range is part of a similar group today.” Nor was the majority impressed with the fact that more than 80 district courts have upheld 18 U.S.C. § 922(g)(1) after Bruen; it reasoned that these courts were bound by pre-Bruen circuit precedents upholding the statute.

The lead opinion characterizes its decision as a “narrow one,” but most of its reasoning about the lack of a historical analogue for the disarmament of felons is quite general and would appear to apply with equal force regardless of the nature of the underlying felony or the procedural posture of the case, i.e., whether the issue is being raised proactively as Range did, or in response to a criminal charge.

Judge Ambro’s opinion. Judge Ambro wrote a separate opinion, joined by Judges Greenaway and Montgomery-Reeves. I’m confused about the exact status of the opinion. It is styled as a concurrence, and Judge Ambro writes that he “join[s]” Judge Hardiman’s “well-crafted” opinion. Yet he is not listed in the principal opinion as joining, and neither is Judge Montgomery-Reeves, while Judge Greenaway is listed as joining. In any event, altogether eleven of the fifteen judges on the court saw the statute as unconstitutional as applied.

Judge Ambro explains that he is writing separately “to explain why the Government’s failure to carry its burden in this case does not spell doom for [section] 922(g)(1).” He argues that the statute “remains ‘presumptively lawful’” and that it “fits within our Nation’s history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society.” Judge Ambro focuses much more on the as-applied nature of the case, stating that while “Range does not conceivably pose . . . a threat,” the court’s decision “says nothing about those who do.” He thus reports that he joins the majority opinion “with the understanding that it speaks only to [Range’s] situation, and not to those of murderers, thieves, sex offenders, domestic abusers, and the like.”

I struggle to reconcile Judge Ambro’s opinion with Judge Hardiman’s. The former is focused on Range, while the latter looks categorically for Founding-era laws imposing firearm prohibition as a penalty for criminal activity and finds none. Judge Ambro seems to see it as relevant that at the time of the Founding, many states disarmed “tramps,” drunks, and other individuals seen as dangerous – regulations that Judge Hardiman saw as too far afield to support felon-in-possession laws. At times, Judge Ambro seems uncomfortable with his own reasoning. He says, almost in so many words, the he’s taken a stab at an opinion but ultimately, “the Supreme Court will have to square its history-driven test,” and the lack of direct historical precedents, “with its concurrent view that felon gun restrictions are presumptively lawful.”

Judge Ambro wraps up by noting that if the historical test is right and means-end scrutiny is wrong for Second Amendment cases, it may also be wrong for other cases involving constitutional rights. That would be quite a revolution in, for example, free speech cases.

The dissents. The four dissenting judges produced multiple dissenting opinions. They’re all worth reading, but I won’t try to fully capture them here. I will simply note briefly a few points across the various dissenting opinions:

  • While the majority argues that its opinion is narrow, some dissenters believe that “the analytical framework [the majority has] applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”
  • If the majority’s opinion is not a categorical rejection of felon-in-possession laws, then some dissenters see it as vague and impossible to apply, as the majority never identifies what specific facts about Range’s background and circumstances renders him eligible for relief.
  • Some dissenters noted that felonies and frauds in the Founding era were generally capital crimes. Insofar as being executed carries with it a loss of the right to possess guns – or anything else – an argument can be made that felons did indeed lose their firearms rights during the Founding era.
  • Founding-era laws in various jurisdictions disarmed Black people, Native Americans, Catholics, those who would not swear loyalty to the state, and others viewed as dangerous. As noted above, Judge Hardiman’s opinion did not see these provisions as analogous to current felon-in-possession laws, but many dissenting judges disagreed.
  • One of the dissenters wondered about what other challenges might flow from the majority’s opinion. For example, if a felony conviction doesn’t support disarmament, how can a court possibly disarm people who are merely accused of a crime by making it a condition of pretrial release that defendants not possess firearms?

Comments. Obviously Range is not binding in North Carolina. But it is momentous, not just for its impact on the federal statute at issue, but also because it calls into question the constitutionality of the many similar state laws. (According to one source, every state except Vermont generally bars felons from possessing guns.) Criminal defense lawyers should therefore be raising and preserving Second Amendment arguments in almost every pending case involving a gun crime. Depending on how the law develops, even past convictions for some gun offenses may need to be reexamined.

The case is especially significant when viewed together with the Rahimi case from the Fifth Circuit that I have discussed elsewhere. It seems extremely likely that the Supreme Court will review one or both cases given their massive potential impact and the obvious difficulty lower courts are having with the interpretive framework announced in Bruen. For a further delineation of the factors making Supreme Court review likely, see this post by Professor Eugene Volokh.

I’ll finish by saying that I’m not making any predictions, and I’m not rooting for a particular outcome. I see every possibility as being on the table if the Court does revisit the Second Amendment. It might uphold felon-in-possession laws categorically, might head in a narrow direction like the one Judge Ambro suggested, or might do something much more radical. As always, stay tuned.