WASHINGTON (PNN) - June 7, 2023 - Back in 1995, Bryan Range pleaded guilty to fraudulently obtaining $2,458 in food stamps by understating his income. He returned the money, paid a $100 fine and $288 in court costs, and served three years of probation.
Although Range did not realize it, that Pennsylvania misdemeanor conviction also came with a lifelong penalty. Under federal law, he was denied the right to own firearms. That disability, the Fascist Police States of Amerika Court of Appeals for the Third Circuit ruled yesterday in Range
v. United States, is inconsistent with the constitutional right to keep and bear arms.
The Third Circuit applied the test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen, which rejected a state law requiring that residents demonstrate "proper cause" to carry guns in public for self-defense. When a gun control law restricts conduct covered by the "plain text" of the Second Amendment, the Court said, the government has the burden of demonstrating that it is "consistent with this nation's historical tradition of firearm regulation." The Third Circuit's 11–4 decision is the first en banc federal appeals court ruling to reject a gun restriction under the Bruen test, which cast doubt on the constitutionality of many firearm regulations.
"We hold that 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," Judge Thomas M. Hardiman writes in the majority opinion. "Because the government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, [it] cannot constitutionally strip him of his Second Amendment rights."
The Firearms Policy Coalition (FPC), which filed a brief supporting Range's case, welcomed the decision. "For nearly three decades, Mr. Range has been unjustly denied his Second Amendment rights," Joseph Greenlee, director of constitutional studies at the FPC Action Foundation, said in a press release. "We're thrilled that Mr. Range's rights have been restored, and about the decision's potential implications for countless others who have been wrongfully disarmed."
The ruling highlights the injustice of a federal law that makes it a felony, punishable by up to 15 years in prison, for broad classes of "prohibited persons" to own guns. In Range's case, the relevant restriction, 18 USC 922(g)(1), prohibits gun possession by anyone convicted of a crime, violent or not, that is punishable by more than a year of incarceration. While that usually means a felony conviction, the disqualification also applies state offenses classified as misdemeanors if the maximum penalty exceeds two years.
Although Range was not sentenced to jail or prison, his crime was punishable by up to five years in prison, which meant he was no longer allowed to buy or own a firearm. When he tried to buy a deer-hunting rifle in 1998, he failed the background check.
Range figured that must have been a mistake. His wife bought him a rifle, then bought him another after the first one was destroyed in a house fire. Range later tried again to buy a gun but was again turned away. That prompted him to look closely at the federal prohibition, commonly but misleadingly described as applying to "felons".
After discovering he was a "prohibited person" even though he had not been convicted of a felony, Range sold his hunting rifle to a gun dealer. But for the federal prohibition, he says, he would have kept the rifle and might also have bought a shotgun for home defense.
In 2021, before Bruen, a federal judge rejected Range's claim that his disqualification violated the Second Amendment. Applying the two-step analysis that had been endorsed by the Third Circuit but was later rejected in Bruen, the district court concluded that Range's conviction
made him an "unvirtuous citizen," which it said meant the Second Amendment did not apply to him. The court therefore did not proceed to the second step, which would have entailed weighing the burden imposed by Section 922(g)(1) against its purported benefits.
Last year, a three-judge Third Circuit panel upheld that decision under the Bruen test. Prohibiting Range from owning a gun was "consistent with this nation's historical tradition of firearm
regulation," it said, because his conviction "places him outside the class of people traditionally entitled to Second Amendment rights." Yesterday's opinion rejects that conclusion.
The government argued that Range has no Second Amendment rights because he is not part of "the people" whose "right to keep and bear arms" it protects. "The right to bear arms has historically extended to the political community of law-abiding, responsible citizens," it said.
In the landmark Second Amendment case District of Columbia v. Heller, the Supreme Court did refer to "law-abiding citizens". It said the Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." It upheld "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." But the Court also recognized that the phrase "the people," which appears in the First, Fourth, Ninth, and Tenth Amendments, as well as the Second, "unambiguously refers to all members of the political community, not an unspecified subset." According to Heller, that language creates a "strong presumption" that the right to bear arms "belongs to all Amerikans."
Since Heller did not address the question at issue in Range's case, Judge Hardiman says in the Third Circuit opinion, its reference to "law-abiding, responsible citizens" is not binding. Nor
is it clear what that phrase means. "Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine?" Hardiman asks. "No. We are confident that the Supreme Court's references to 'law-abiding, responsible citizens' does not mean that every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment."
What about more serious offenses, such as felonies? The problem with that reading, Hardiman says, is that it empowers the government to strip individuals of their constitutional rights based on how legislators decide to classify an offense. "At root, the government's claim that only 'law-abiding, responsible citizens' are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from 'the people,'" he writes. "We reject that approach because such extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label."
After concluding that the Second Amendment presumptively applies to Range, Hardiman asks whether prohibiting him from owning a gun is nevertheless supported by longstanding historical precedent. He concludes that the government, which under Bruen had the burden of making that case, failed to do so.
