A federal appeals court in Philadelphia has overwhelmingly ruled that a man convicted of a non-violent crime cannot be stripped of his Second Amendment rights to keep and bear arms.
In an 11-4 ruling (pdf) delivered on Tuesday, the 3rd U.S. Circuit Court of Appeals sided with Bryan Range, a Pennsylvania man who was banned from possessing a gun because of lying on a government form to get more food stamps to feed his family 28 years ago.
Range was convicted to one count of making a false statement to obtain food stamps in 1995, a time he and his wife struggled to raise three young children on $300 per week, according to court fillings. He has since completed a three-year probation, made a $2,500 restitution for his crime, and committed no crime other than minor traffic offenses and fishing without a license.
When Range pleaded guilty in 1995, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years in jail. Although Range didn’t get any jail time at all, that conviction prohibits him from possessing a firearm under federal law, which generally makes it “unlawful for any person … who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year” to own guns or ammunition.
A federal judge ruled against Range in 2021. While Range’s appeal was pending, the U.S. Supreme Court decided on a landmark Second Amendment case and settled a two-step test for the constitutionality of firearm restrictions.
The two-step process, set forth by Supreme Court Justice Thomas Clarence, first requires the court to determine whether the Second Amendment’s “plain text” covers an individual’s conduct. If so, then that conduct is presumptively protected, and the government must prove that its law is “consistent with this Nation’s historical tradition of firearm regulation.”
Applying the test to Range’s case, a majority of the 3rd Circuit’s judges agreed that Range, despite his criminal record, remains one of “the people” protected by the Second Amendment. The burden then fell on the federal government to prove that disarming Range conforms to “historical tradition” dating to the the nation’s founding.
“Yet the Government’s attempts to analogize those early laws to Range’s situation fall short,” Circuit Judge Thomas Hardiman, a George W. Bush appointee, wrote in the majority opinion.
The fact that people during the Early Republic era sometimes got executed for committing non-violent crimes, according to Hardiman, doesn’t mean that the state, then or now, could constitutionally strip a felon of his Second Amendment rights if he was not executed, because “the greater does not necessarily include the lesser.”
“The Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, [the federal law] cannot constitutionally strip him of his Second Amendment rights,” Hardiman concluded.
The judges did note that Tuesday’s decision is limited to Range’s individual circumstances, where he was banned from owning guns because the non-violent crime he committed decades ago carried a relatively lengthy maximum prison sentence.
“Our decision today is a narrow one,” the majority opinion read. “Bryan Range challenged the constitutionality of [the federal law] only as applied to him given his violation of [the Pennsylvania law].”
Circuit Judge Thomas Ambro, a Clinton appointee, offered a separate concurring opinion, saying that even though the government failed to carry its burden in this case, the federal felon-in-possession ban still stands lawful.
“This is so because 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. That Range does not conceivably pose such a threat says nothing about those who do,” Ambro wrote. “And I join the majority opinion with the understanding that it speaks only to his situation, and not to those of murderers, thieves, sex offenders, domestic abusers, and the like.”
Ambro was joined by Obama- and Biden-appointed Circuit Judges Joseph Greenaway and Tamika Montgomery-Reeves, respectively.
In one of the three dissenting opinions, Circuit Judge Patty Shwartz pointed to now-unconstitutional firearm bans on groups such as Native Americans, African Americans, Catholics, Quakers, and Loyalists. She argued that these restrictions, no matter how repugnant and unlawful they are today, serve as an analogy good enough to justify disarming people like Range.
“The founders [of the United States] categorically disarmed the members of these groups because the founders viewed them as disloyal to the sovereign. The felon designation similarly serves as a proxy for disloyalty and disrespect for the sovereign and its laws,” the Obama appointee wrote. “Such categorization is especially applicable here, where Range’s felony involved stealing from the government, a crime that directly undermines the sovereign.”
Shwartz also warned that even though her colleagues have clarified that their opinion is “narrow,” the analytical framework they have applied to reach the conclusion could render most, if not all, felon firearm bans unconstitutional.
“The ruling is not cabined in any way and, in fact, rejects all historical support for disarming any felon,” she argued. “As a result, the
Majority’s analytical framework leads to only one conclusion: there will be no, or virtually no, felony or felony-equivalent crime that will bar an individual from possessing a firearm.”
“This is a broad ruling and, to me, is contrary to both the sentiments of the Supreme Court and our history.”