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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