Second Amendment Roundup:
Circuit Conflict in Felon Gun Ban Cases

On December 23, the Third Circuit en banc handed Bryan Range an early Christmas present by ruling that despite his decades-old conviction for a false statement to obtain food stamps in violation of Pennsylvania law, he "remains among 'the people' protected by the Second Amendment." Further, "the Government did not carry its burden of showing that the principles underlying our Nation's history and tradition of firearm regulation support disarming Range…."

The case is Range v. Attorney General. After the Supreme Court in Bruen reinforced the text-history approach to deciding Second Amendment cases, in 2023 the Third Circuit had reached that same result. However, after deciding Rahimi, the Supreme Court granted Merrick Garland's cert petition, vacated the judgment, and remanded the case for further consideration in light of Rahimi.

In a decision by Judge Thomas Hardiman, the majority again ruled in favor of Range. It reasoned, first, that the criminal histories of the parties were not at issue in the Supreme Court's previous civil cases – Heller, McDonald, and Bruen – with their dicta about "law-abiding" persons having the right to bear arms. Second, "the people" also appears in the First and Fourth Amendments, and felons are included. Third, certain groups may be stripped of Second Amendment rights, but limits exist. And fourth, persons may not be deprived of Second Amendment rights because they are not "responsible."

The Range court continued that "today, felonies include a wide swath of crimes, some of which seem minor," and that legislatures should not have "unreviewable power to manipulate the Second Amendment by choosing a label." .....