Second Amendment

Would nearly all felon gun bans be struck down under new 3rd Circuit opinion? Dissenter thinks so

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An en banc federal appeals court has ruled that a man convicted for food stamps fraud has a Second Amendment right to possess a gun—despite a federal law to the contrary.

The full 3rd U.S. Circuit Court of Appeals at Philadelphia ruled June 6 for Bryan Range, who pleaded guilty to making a false statement about his lawn-mowing income to obtain food stamps in 1995. Range received probation, even though the crime carried a potential sentence of five years in prison.

Under the federal felon-in-possession law, people can’t possess a firearm after they are convicted of state misdemeanors that carry potential prison terms of more than two years.

A three-judge panel of the 3rd Circuit had found in November 2022 that Range had no Second Amendment right to own a firearm. The full 3rd Circuit disagreed in an opinion by Judge Thomas M. Hardiman, who was said to be on former President Donald Trump’s short list of potential U.S. Supreme Court nominees.

The federal felon-in-possession law is unconstitutional as applied to Range, the en banc court said.

“Our decision today is a narrow one,” Hardiman wrote.

His opinion cited the June 2022 Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen. That decision looked to historical tradition and Second Amendment text to hold that the amendment protects a person’s right to carry a gun for self-defense outside the home.

In Range’s case, the government did not carry its burden to prove the nation has a long-standing history and tradition of disarming people such as Range, Hardiman wrote.

“That founding-era governments disarmed groups they distrusted like Loyalists, Native Americans, Quakers, Catholics and Blacks does nothing to prove that Range is part of a similar group today,” he wrote.

Hardiman’s opinion was joined in full by eight of the 15 en banc judges. Four judges concurred, including two who did not join the majority opinion.

Four judges dissented, including Judge Patty Shwartz, who warned that the opinion could have a broad reach.

“Today, the majority of our court has decided that an individual convicted of fraud cannot be barred from possessing a firearm,” wrote Shwartz in a dissent joined by Judge L. Felipe Restrepo. “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 case is Range v. Attorney General United States of America.

Publications covering the decision include the Volokh Conspiracy, Reuters, the New York Times and the Associated Press. How Appealing linked to the opinion.

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