Appeals Court Narrows Reach of Ban on Firearms Possession by Criminals, Making Exception for Non-Violent Offenders
The court pondered whether the government’s argument might also allow disarming “those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine.”
A federal appeals court has narrowed the scope of a federal law that disarmed individuals found guilty of an offense punishable by more than one year of imprisonment. The United States Court of Appeals for the Third Circuit, which encompasses Delaware, New Jersey, and Pennsylvania, found the law unconstitutional as applied to individuals convicted of non-violent misdemeanors.
Update 1: “We’re thrilled that Mr. Range’s right to keep and bear arms has been restored after being unjustly denied for nearly three decades,” Joseph Greenlee told Legal Insurrection. The Director of Constitutional Studies at the Firearms Policy Coalition Action, which represented Range, continued, “We’re also excited about the decision’s potential implications for other peaceable persons who have been wrongfully disarmed.”
The appeal stemmed from a 2021 denial by a Pennsylvania federal district court of Bryan Range’s challenge to 18 U.S.C. § 922(g)(1):
(g) It shall be unlawful for any person—
(1) 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; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Range challenged the law as a “violat[ion] his Second Amendment right to keep and bear arms.” Range was disarmed under § 922(g)(1) because he was convicted in 1995 of “one count of making a false statement to obtain food stamps in violation of Pennsylvania law.”
At the time, this offense was a misdemeanor under Pennsylvania law, with a maximum sentence of five years imprisonment. Range, however, received three years probation and was ordered to pay restitution, costs, and a fine. He served no jail time. However, because § 922(g)(1) applies whenever a term of imprisonment exceeding one year is possible, § 922(g)(1) barred Range from possessing a firearm.
The district court’s 2021 denial was consistent with Third Circuit precedent at the time, which evaluated firearms restrictions imposed on criminals using a five-factor test to determine whether Range was “an ‘unvirtuous citizen’ of the kind historically barred from possessing a firearm.” The district court found Range was such an “unvirtuous citizen” and held § 922(g)(1) constitutional as applied to him.
In 2022, the Supreme Court of the United States delivered the landmark Second Amendment decision New York State Rifle & Pistol Ass’n, Inc. v. Bruen, which the Third Circuit found rendered its five-factor test inapplicable.
Bruen also reiterated the test for firearms regulations enunciated in District of Columbia v. Heller, which required firearms regulations be “consistent with the Nation’s historical tradition of firearm regulation” when the person subject to the regulation is one of “the people” within the meaning of the Second Amendment.
A three-judge panel of the Third Circuit initially found § 922(g)(1) consistent with Bruen, and Range petitioned for a rehearing by the entire court. On rehearing, the Third Circuit found for Range.
The full court considered the government’s contention that Range was not a part of “the people” referenced in the Second Amendment because “[t]he right to bear arms has historically extended to the political community of law-abiding, responsible citizens” and Range had a misdemeanor conviction. The court rejected this argument, finding that the phrase “law-abiding, responsible citizens” was “as expansive as it is vague.”
In rejecting the government’s argument, the court pondered whether “law-abiding” might “exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine.”
The court also took issue with drawing a bright line between felony and misdemeanor offenders. The court found that, in contrast to the felony–misdemeanor dichotomy of the past, many modern-day felonies, like unauthorized reading of another’s email, “seem minor,” while “some misdemeanors,” like involuntary manslaughter, “seem serious.”
The court then considered whether § 922(g)(1), as applied to non-violent misdemeanor offenders, was “consistent with the Nation’s historical tradition of firearm regulation.” The government argued that “federal law has generally prohibited individuals convicted of crimes punishable by more than one year of imprisonment from possessing firearms,” citing a statute enacted in 1961.
The court found this argument unpersuasive because “the earliest version of that statute, the Federal Firearms Act of 1938, applied only to violent criminals,” and even if the 1938 statute were sufficiently “longstanding” to be “consistent with the Nation’s historical tradition of firearm regulation,” it would be a poor analog for § 922(g)(1) as applied to Range, who was a non-violent offender.
Legal Insurrection has covered other challenges to § 922(g). The United States Court of Appeals for the Fifth Circuit recently struck down § 922(g)(8), which barred firearms possession by individuals subject to a domestic-violence restraining order.
Update 2: The Bureau of Alcohol, Tobacco, Firearms, and Explosives, whom Range sued to block enforcement of § 922(g)(1), declined to comment on ongoing litigation.
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Comments
Do you also lose your first amendment rights over a small offense? Of course not, the government isn’t allowed to restrict your rights.
This is so weird to me. I’m not a lawyer, but I was a sworn police officer and I was taught that the right to possess firearms was revoked in the case of conviction of a felony. And the criteria given above of being convicted of a crime punishable by imprisonment for more than one year is the definition I was taught to define a felony. Did the drafter of the law just mess up and neglect to put in the word felony?
A cop with poor training as to how the law works? Shocked, shocked I tell ya.
In the 1800’s, after serving their terms for felonies, the right to keep and bear arms was restored. Bruen bothers me in that the interpretation is still fuzzy. In Washington and Oregon, tradition is being used to define a time frame…. the AR-15 isn’t traditional enough ….. 60 years on sale and derived from civilian designs from early 1900’s. New Jersey has a new law on the books that, if interpreted like they wish, millions of firearms made before 1968 are now essentially illegal…. falling into the “ghost gun” bin as not having a Federally approved serial number. So that 1930’s Holland and Holland shotgun ($100k) is now on the bubble.
Evidently some states have long term sentences for misdemeanors. Your state and mine both make the sentences maxed out at a year for any misdemeanor.
korp, a moron with no law enforcement training or experience talking shit about cops? I’m shocked. Different states have different laws. It doesn’t mean NavyMustang was poorly trained.
Good question. A federal felony is a federal crime punishable by more than one year of imprisonment, but misdemeanors in some states, like Pennsylvania, are punishable by sentences of more than a year.
I don’t think the law challenged here was negligently drafted. Another law, 18 U.S.C. § 921(a)(20)(B), has a “safe harbor” that excludes state misdemeanors punishable by two years of imprisonment or less from the scope of 18 U.S.C. § 922(g)(1). I suspect these laws reflect a value judgment that, regardless of how a state classifies a crime, if that crime is punishable by more than two years of imprisonment, then the crime is serious enough to warrant disarming the defendant.
The problem for Range was that his misdemeanor was punishable by up to five years of imprisonment, so the safe harbor didn’t apply to him.
When will the courts come to their senses and apply the commerce clause power as intended: to prohibit STATES from INTERFERING with commerce and not as a loophole around the constitution to give congress and the federal government police powers over every good, service or transaction that directly, indirectly or tenuously crosses state lines?
Exactly.
The Commerce Clause does not grant Congress ANY authority to legislate whatsoever.
It exists because, when the founders were writing the Constitution NY and NJ were having a trade war – imposing taxes on goods crossing State lines. They also had the example of the fragmented Germany at the time – with every jurisdiction imposing tariffs on goods crossing into their territory.
The Commerce Clause was meant solely for the purpose of giving Congress authority to force the States to accept that the whole country would have no internal trade barriers.
That’s it.
Federal Courts have since broadened that infinitely so that that now, anything that any clever lawyer can argue has any impact on “commerce” – which is literally everything – falls under Congress’ legislative authority.
Wickard v Filburn seems to be the most important case here – everything since was built on that.
Couple that with the rise of the bureaucratic State, where Congress Un-Constitutionally delegates its legislative authority to executive branch bureaucracies, empowered to invent rules and regulations that have the force of law, and we have our current situation: unelected bureaucrats, led by a political appointee of the President, writing new “law”, which is not actual law, by the hundreds of thousands of pages every year. Dictating every detail of how every business is operated.
I found this the most interesting point:
I think is speaks volumes regarding the humongous corpus of laws we have. The libertarian in me feels that most laws should be abolished. Most, not all. Who needs many thousands of laws? (Besides many thousands of lawyers and those who want to control virtually every aspect of every citizen’s lives?)
But but, but….think of the economic consequences for the federal bureaucrats and their children. These credentialed members of the laptop class of our neo clerisy would have to find employment in the private sector./S
“… and Federal Courts Shall Have Full Authority to Limit This Right As They See Fit.”
My copy of the US Constitution doesn’t have the above tacked on to the end of the 2nd Amendment.
Weird how every Federal Judge has a different version of the Constitution than the rest of us.
“The court pondered whether the government’s argument might also allow disarming “those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine.”
How long can you ponder the possibility of historical fact?
“an elderly black man whose “felony” 40 years ago in Mississippi was possession of a deck of playing cards depicting naked white women.”
That would be in the early 80’s. Can you post a reference for this statement as I can find nothing online and am curious as to what was going on. Finding anyone guilty of a felony for having nude playing cards seems strange to me especially since you are playing up the race angle.
The article referencing the crime about the cards was published in ’99 so forty years earlier for the date of the conviction would be ’59. That would make much more sense.
Oh, ok. I read the post wrong. Makes sense now.
Sorry, I just saw this. I wish this forum notified posters when people reply to them, like every other one I frequent. 😡
The earliest reference I have is in mid-June, 1999 (the URL seems to have been reused):
“Where are the violent criminals, the drug kingpins, and the terrorists — the “felons, fugitives, and stalkers” the Clinton administration repeatedly insists that Brady has been so successful in stopping?”
Who in their right mind thinks those people fill out a background check to get a firearm?
And yet, Hunter did!