On June 6, 2023, an en banc panel of the United States Court of Appeals for the Third Circuit ruled that 18 U.S.C. §922(g)(1), the “felon in possession of a firearm” statute, is unconstitutional as applied to one individual, Bryan Range. While the decision purports to be “a narrow one[,]” the rationale that underpins the decision calls into question whether statutes prohibiting those convicted of crimes punishable by more than one year in prison continue to pass constitutional muster. This article summarizes the series of events and decisions that led to Range, explains why the Range decision has important and broad implications on society, and predicts where courts may ultimately draw the line in the burgeoning struggle between Second Amendment rights and firearm regulation.
As to the case at hand, Range’s offense was about as innocuous as a crime that triggers the felon in possession statute can be. In 1995, Range, who at the time earned between $9.00 and $9.50 per hour while raising three children, underreported his income to qualify for food stamps. Range received the food stamps and when his false underreporting was discovered, had been improperly enriched by $2,458. Range served three years’ probation without incident.
While Range did not spend any time in prison, the crime of making false statements in order to obtain food stamps could have been punishable for up to five years imprisonment under the relevant Pennsylvania statute. Therefore, pursuant to§922(g)(1), which strips felons of their right to possess firearms if they face more than one year in prison (or in certain circumstances, those convicted of a state misdemeanor with a potential sentence of more than two years), Range was forever ineligible to own a gun. Range purports to have learned about this restriction for the first time when he attempted to purchase a deer-hunting rifle in 1998.
Prior to the US Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, and generally speaking, for the 61 years since the current version of §922(g) has been codified, an analysis of Range’s case would have required some discussion of the means-ends scrutiny of the law at issue. That is to say in the basest terms, whether the challenged firearm law struck an appropriate balance between the Second Amendment right of the felon versus the need for public safety. Since the US Supreme Court’s decision in United States v. Heller, the Third Circuit Court of Appeals performed this analysis using what it called a “multifactored seriousness inquiry.” Under that test, the government probably could not strip an individual of his or her right to possess a firearm for jaywalking but could (and obviously did), strip people of their Second Amendment rights for things like making false statements to the government.
Both parties in Range conceded that the seriousness inquiry is kaput. Instead, and as set forth in Bruen, “the government may not simply posit that the [firearms] regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Stated differently, whether a firearm restriction comports with the Second Amendment is no longer dependent on whether the law makes good policy sense or promotes an important need but rather whether a comparator to the regulation can be found in this Nation’s historical firearm laws.
To perform this analysis, the Court held that lower courts must determine whether the firearm restriction is consistent with this Nation’s history and tradition by reasoning through analogy, which the Court notes is a “commonplace task for any lawyer or judge.” To provide further guidance, the Court stated that the historical analysis requires determining whether the historical regulation and the present-day regulation are “relevantly similar,” adding, “a green truck and a green hat are relevantly similar if one’s metric is ‘things that are green.’ They are not relevantly similar if the applicable metric is ‘things you can wear.’”
Notably, Bruen involved a challenge to a New York State statute that required an individual to show a “special need for self-protection distinguishable from that of the general community” in order to obtain a license to carry a handgun in public. While holding the New York statute unconstitutional, the Court provided no real guidance as to how this analysis would differ – if at all – when considering the §922(g) felon in possession statutes. To say this caused issues in the lower courts would be an understatement.
For instance, in U.S. v. Bullock, the United States District Court for the Southern District of Mississippi punched up at the Supreme Court, noting, “a serious disconnect between the legal and historical communities,” and stating “[t]his Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess.” Likewise, in U.S. v. Holden, the Northern District of Indiana thought that Bruen left him no choice but to invalidate a portion of §922 unconstitutional, while noting “an earnest hope that its author has misunderstood [Bruen].” Even in the case of Bryan Range, a three-judge panel of the Third Circuit unanimously held that dispossessing him of a firearm is constitutional because while “modern-day regulation is not a dead ringer for historical precursors[,] . . . [it] may be analogous enough to pass constitutional muster,” before being overruled 11-4 by an en banc panel.
This brings us to the importance of Range. While the decision purports to do nothing more than to allow Bryan Range, a Pennsylvanian who served a probation sentence in the 1990s for lying to qualify for food stamps, to obtain a firearm, the implications of that decision are enormous. As stated by Judge Schwartz in dissent, “[t]oday, the Majority of our Court has decided that an individual convicted of fraud cannot be barred from possessing a firearm. While my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”
The reason for this is in the details. The majority opinion held that “the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.” Given that Bruen requires the government to point to a historical analogue to uphold any firearm restriction, the natural (and still open question) is whether a sufficient historical analogue exists for any crime requiring dispossession under §922(g). A close reading of the case would seem to suggest that no historical analogue exists for at least non-violent offenses, but exactly where this line may be drawn has yet to be decided.
According to the United States Sentencing Commission, 7,454 people were convicted of §922(g) offenses in 2021, and 96.9% of those convictions resulted in custodial sentences, many of which were lengthy terms of imprisonment. A great number of the approximately 20,000 – 30,000 people currently serving time in federal prison for §922(g) violations will surely file a writ of habeas corpus to challenge whether their crime of conviction is constitutional. If the answer to that question is no, the likely result is that those people will be released or (in the event of individuals who were convicted of multiple crimes at the same trial, including a §922(g) offense), will receive a new trial. The same is true of individuals serving in state prisons for violations of state analogues to §922(g).
Further, the decision will affect people like Range himself, whose sentences are behind them, but they are nonetheless prohibited from owning or possessing a firearm. While the number of individuals currently serving time for a §922(g) violation is in the tens of thousands, the number of people who have been stripped of their right to possess a firearm as a result of a criminal conviction (or in some instance because of a misdemeanor domestic violence conviction), could reach the low millions. Regardless of one’s personal beliefs on gun ownership, the potential impact of arming a million or more Americans is not negligible.
Ultimately, the Supreme Court will have to decide where the line between constitutional and unconstitutional lies. Justice Kavanaugh, joined by Chief Justice Roberts, seemed to anticipate this issue in their Bruen concurrence when they noted that felony-dispossession is “presumptively lawful.” Therefore, an escape hatch may exist for the Court to outright distinguish Bruen from felony dispossession cases by applying a different analysis. Still another option would be a clear rule that §922(g) is unconstitutional when applied to non-violent offenders, which would likely require finding some historical analogue to support the proposition that a certain indicia of dangerousness warrants dispossession.
Defining the bounds of constitutionality under the current test is no easy task. As when comparing green hats and green trucks, whether a historical regulation provides a relevant analogue to a present-day law will depend on the specifics of the comparison at hand. In the instance of §922(g), the Range majority decision references crimes as diverse as using profane language on the radio, returning out-of-state bottles or cans to a Michigan recycling center, and library theft of more than $150. It is a difficult to imagine the same historical proxy can be used to define the bounds of those crimes and the innumerable other acts that modern society criminalizes.
Range and Bruen make clear that policy has no place in Second Amendment jurisprudence and that history reigns supreme. While the implication of this line of cases has yet to be fully realized, many longstanding gun laws clearly rest on shaky constitutional ground, particularly those with no clear historical comparator. As we wait for the Supreme Court to clarify the nuances of the Bruen test as applied to a wider-range of gun laws, one thing is clear: legislators looking to regulate guns in a way that withstands constitutional scrutiny would be wise to consult The Pennsylvania Gazette or Poor Richard’s Almanack and not the current headlines.
David Rodkey is the former Managing Editor of JURIST and an Associate Attorney at the Philadelphia-based law firm Dilworth Paxson LLP. His practice areas are wide-ranging and include general commercial law, constitutional law, white-collar defense, and post-conviction relief. He was part of a two-person team that successfully obtained a compassionate release in United States v. Chi Fai Wong, which is believed to be the first case in US history where a federal court granted compassionate release to an individual serving life in prison.
Suggested citation: David Rodkey, Range v. AG and the Shifting Unconstitutionality of Gun Regulation in the US, JURIST – Professional Commentary, June 9, 2023, https://www.jurist.org/commentary/2023/06/range-ag-gun-regulations.
This article was prepared for publication by JURIST staff. Please direct any questions or comments to them at commentary@jurist.org
