Bryan Range pleaded guilty in 1995 to food stamp fraud in Pennsylvania. He served three years probation, paid restitution and a small fine. He also lost his gun rights.
That’s because “his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years’ imprisonment. That conviction precludes Range from possessing a firearm because federal law 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 ‘possess in or affecting commerce, any firearm or ammunition.’”
Range sued, arguing that he’d been wrongly deprived of his right to keep and bear arms. Today, an en banc Third Circuit Court of Appeals agreed with Mr. Range, restoring his Second Amendment rights.
Both sides agree that [under Bruen] we no longer conduct means-end scrutiny. And as the panel wrote: “Bruen’s focus on history and tradition,” means that “Binderup’s multifactored seriousness inquiry no longer applies.”
After Bruen, we must first decide whether the text of the Second Amendment applies to a person and his proposed conduct. If it does, the government now bears the burden of proof: it “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
The government failed to do that in the Court’s judgement. As Judge David Porter wrote in his concurrence . . .
Until well into the twentieth century, it was settled that Congress lacked the power to abridge anyone’s right to keep and bear arms. The right declared in the Second Amendment was important, but cumulative. The people’s first line of defense was the reservation of a power from the national government. As James Wilson explained, “A bill of rights annexed to a constitution is an enumeration of the powers reserved.” …
Even without the Second Amendment, the combination of enumerated powers and the Ninth and Tenth Amendments ensured that Congress could not permanently disarm anyone.
“Anyone” covers a lot of people.
UCLA Law Professor Eugene Volokh, who believes the Third Circuit’s reasoning could be extended to many who have been convicted of felonies as well, thinks this sets up an almost sure Supreme Court review.
It seems to me nearly certain that the Supreme Court will agree to hear the case, perhaps in conjunction with the Fifth Circuit domestic civil restraining order automatic disarmament case, U.S. v. Rahimi. As a practical matter, this is a much more important case than Rahimi (which itself is quite important); the federal government is nearly certain to seek review by the Supreme Court; the decision invalidates a federal statute; there is a circuit split; the broad reasoning of the decision is in tension with the Court’s statements that felon disarmament laws are presumptively constitutional. All of these are factors cutting in favor of Supreme Court review, and put together they make such review extremely likely.
Don’t touch that dial.
