Nonviolent felon protected by Second Amendment, Third Circuit rules

PHILADELPHIA (CN) — A nonviolent conviction from the mid-1990s shouldn’t interfere with a Delaware man’s right to arm himself, the Third Circuit ruled en banc, doubling down on a previous finding that was vacated by the U.S. Supreme Court.

“We are pleased that the en banc Third Circuit has once again held that it is unconstitutional to disarm Bryan Range on the basis of a decades-old, nonviolent offense,” Peter Patterson, Range’s attorney, told Courthouse News Tuesday following the opinion’s late Monday evening release.

In its 13-2 ruling, the appellate court reversed a federal court decision that barred Range from gun ownership after he fraudulently obtained $2,458 in food stamps approximately three decades ago. The circuit court was in favor of reinstating Second Amendment rights to Range, who pleaded guilty to welfare fraud in 1995, was sentenced to probation and was unknowingly stripped of those rights by federal law because the crime was punishable by over a year in prison.

“In sum, we reject the government’s contention that ‘felons are not among ’the people’ protected by the Second Amendment,” U.S. Circuit Judge Thomas M. Hardiman, a George W. Bush appointee, wrote in his opinion.

“Because the government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, [18 U.S. Code] §922(g)(1) cannot constitutionally strip him of his Second Amendment rights,” he added.

Chief U.S. Circuit Judge Michael Chagares concurred with Hardiman’s ruling, along with U.S. Circuit Judges Kent Jordan, Stephanos Bibas, David Porter, Paul Matey, Peter Phipps, Arianna Freeman, Tamika Montgomery-Reeves, Cindy Chung, Cheryl Krause, Jane Roth and Thomas Ambro. Only U.S. Circuit Judges Patty Shwartz and L. Felipe Restrepo dissented.

Second Amendment challenge

Range only discovered his inability to purchase a firearm after attempting to do so decades later, prompting what has become a yearslong back-and-forth across multiple federal courts.

In 2020, Range filed an as-applied challenge in the Eastern District of Pennsylvania against the U.S. attorney general and Bureau of Alcohol, Tobacco, Firearms and Explosives director. The court dismissed his complaint and Range appealed.

The Third Circuit affirmed the lower court two years later, finding the government had shown that the nation’s historical tradition of firearm regulation justified barring Range from Second Amendment right entitlements. However, Range successfully petitioned for an en banc rehearing, and in 2023 the circuit reversed the lower court.

According to the Third Circuit, that the government failed to establish any historical tradition of firearm regulation that would apply to Range.

That ruling would only last briefly, though. The U.S. Supreme Court quickly vacated the judgment following United States v. Rahimi , in which justices ruled 8-1 to allow for the temporary restriction of gun possession for individuals considered a physical threat.

Because Rahimi ’s decision emphasized that courts need only find “relevantly similar” past legal principles to prove historical tradition, Range would have to again present his argument for rearmament.

During his October rehearing Patterson, Range’s attorney, repeatedly asserted that Rahimi differed significantly from Range’s case — his client’s crimes were nonviolent, whereas Rahimi was disarmed as a result of a civil domestic violence restraining order.

Warning of “startling consequences” for extending Second Amendment restrictions to nonviolent offenders, Patterson suggested doing so could create a slippery slope in legal precedent.

“Presumably, you could strip them of their First Amendment rights, their Fourth Amendment rights, and everything — for life," he argued. “And surely that cannot be correct.”

While government attorney Kevin Soter suggested that all felonies constitute “serious crimes” justifying disarmament, the bench appeared wary to accept his understanding of the law. Judges hammered him to define a “credible threat” to others’ physical safety — the threshold under Rahimi to justify disarmament.

“Let’s say that Pennsylvania decided that jaywalking or failing to return library books is a felony,” said Judge Porter, a Donald Trump appointee. “Would those offenders be permanently disarmed under Rahimi ?”

Soter replied that such an offender should be disarmed upon conviction and could seek legal mechanisms such as expungement or a pardon to regain their Second Amendment rights.

“That’s a very steep hill to climb,” one judge muttered.

Range’s successful as-applied challenge in court further clarifies what has largely been an otherwise ambiguous reset of Second Amendment regulations following the 2022 New York State Rifle & Pistol Association, Inc. v. Bruen Supreme Court ruling.

In the 6-3 decision, the Supreme Court ruled that U.S. citizens can only be stripped of their Second Amendment rights “if a firearm regulation is consistent with this nation’s historical tradition,” with a particular emphasis on gun restrictions at the time of the nation’s founding.

The Department of Justice could not be reached for comment.

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