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November 16, 2022

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

November 16, 2022 at 10:49 PM | Permalink

Comments

Low hanging fruit. This is the easiest of the subsections of section 922(g) to uphold. Many of the rest are far more troublesome, and several subsections are likely to be stricken as unConstitutional, since there is no historical basis for them. Stay tuned.

Posted by: Jim Gormley | Nov 16, 2022 11:00:24 PM

Whether this is "low hanging fruit" or not, it's the main deal by far. FIP laws have been the No. 1 target after Bruen, and have clearly the biggest impact as a practical matter. I've been predicting (and willing to bet) they would be upheld. And I'm still willing to bet.

Posted by: Bill Otis | Nov 17, 2022 10:25:38 AM

Would you bet that every circuit will rule this way, Bill? They did, of course, before Bruen.

Posted by: Doug B. | Nov 17, 2022 12:55:43 PM

Doug --

I'm willing to make the same bet I've been offering for some time now: That SCOTUS will uphold the federal FIP statute. I will also bet that a majority of the circuits will reach that result.

My side has scored a total wipeout in the circuits on the waiver of appeal provision. But you won't accept that because, as liberals are wont to believe, when the courts are with them, the courts are principled, but when the courts are against them, WE WUZ ROBBED!!!

You guys sound more and more like Donald Trump!

Posted by: Bill Otis | Nov 17, 2022 2:00:47 PM

Bill, you have repeatedly boasted about inventing appeal waivers --- something Congress has never formally (or even informally) approved through duly enacted legislation --- when serving at DOJ. In other words, you are quite proud that you "legislated from the executive branch" based on your policy preference as a prosecutor to force defendants to give up appeal rights that Congress set forth in duly enacted legislations. And here you are again note that courts have upheld your legislating from the executive branch, no doubt because they also have a policy preference for not having all defendants exercise the appeal rights that Congress granted through duly enacted legislations. This story serves only to reinforce my main point -- namely that courts are happy to make law (or happy approve DOJ-made law) when it fits their policy preferences.

Same goes, as I see it, for courts upholding the broad federal FIP statute, even though Justice Barrett and others have made a strong case that text and history do not support forever criminalizing all non-violent felons who may reasonably want or need a gun for self defense. Notably, Bill, you have no deep knowledge of the relevant history, and yet you are so very very confident that the history really will not matter to the Justices when it may be inconsistent with their strong policy preferences.

Your persistent eagerness to bet on what seems to be close call as a matter of history is the clearest proof that all the originalism talk is just a smoke screen for policy preferences. You are seemingly eager to bet because you have long known that all the originalism smoke and mirrors is nothing more than a convenient way to try to make policy preferences seem like something else. I am ever grateful that you keep being eager to highlight what I have long contended --- namely that court rulings from folks on the right are predictably policy preferences all the way down.

Posted by: Doug B. | Nov 17, 2022 4:00:13 PM

Doug --

"Bill, you have repeatedly boasted about inventing appeal waivers --- something Congress has never formally (or even informally) approved through duly enacted legislation --- when serving at DOJ."

I guess we should do away with guilty pleas with any concessions at all, since Congress passed no statute authorizing them and the Constitution provides for conviction only through trials. But of course defendants and their lawyers seek and sign guilty pleas hundreds of times a day. Should the courts now reject them?

" In other words, you are quite proud that you "legislated from the executive branch" based on your policy preference as a prosecutor to force defendants to give up appeal rights that Congress set forth in duly enacted legislation."

I was a duly sworn officer of a POLITICAL BRANCH and therefore legitimately entitled to assert my "policy preferences." Of course plea deals containing the waivers are also the preference of the defense bar, which signs them by the bushel basket, knowing it's a good deal for their sleazy clients. And if a point be made of it, DOJ gave me some (minor) award for it under -- ready now? -- Aunt Janet!!! A real right-winger, she was.

But wait! Even though DOJ, the defense bar, and the courts all approve them, they're BAD BAD BAD because academia disapproves!!

Far out. Academia just knows SO MUCH MORE than actual practitioners.

"And here you are again note that courts have upheld your legislating from the executive branch..."

At one point, even academia understood that uniform judicial approval -- you know, precedent -- means something, but I guess that's before they got traumatized by USNWR.

"...no doubt because they also have a policy preference for not having all defendants exercise the appeal rights that Congress granted through duly enacted legislation."

But Congress never said that defendants MUST use the rights they have, and the huge majority don't, preferring to waive not merely the statutory right to appeal but the Constitutional right to a trial. So your logic necessarily commands that there be no plea bargaining at all. Gotta use all those rights whether they're going to do you any good or not.

"This story serves only to reinforce my main point -- namely that courts are happy to make law (or happy approve DOJ-made law) when it fits their policy preferences."

So when courts disagree with your (radical and lonely) position, they're corrupt, but when they agree with it, they're Beacons of Light.

Are you sure Donald Trump isn't ghostwriting your stuff these days?

Posted by: Bill Otis | Nov 17, 2022 6:05:28 PM

Indeed, Bill, anyone seriously committed to textualism and originalism would be troubled by the extreme reliance on pleas bargains in modern CJ systems. See, e.g., Albert W. Alschuler, Plea Bargaining and Its History, 79 Columbia Law Review 1 (1979). So, you have usefully highlighted yet another area in which you, courts and many others favor policy preferences over a commitment to textualism and and originalism.

Meanwhile, I thought the executive branch was suppose to faithfully execute the laws passed by Congress rather than invent new doctines to serve its policy preferences that undermine those laws. But I am not suprised the chief prosecutor, AG Reno, was eager to give an award to an underling who invented dotrine that served prosecutorial policy preferences. This is not a left/right matter, it is a government power/individual rights matter. Your policy preference is to prioritize government power even when the constitutional text and history (or statutes passed by Congress) support prioritizing individual rights. Many across the political spectrum share your policy preferences for prioritizing government power, but the fact does not itself justify ignoring constitutional text and history (or statutes passed by Congress) that provide for individual rights.

Of course, individuals do not have to use the rights secured by the Constitution or statutes, e.g., I do not have to exerice my First Amendment right to attend church or my statutory right to collect Social Security benefits. But that fact does not mean government bureaucrats have unlimited authority to demand that I waive these rights in any and all settings. (Though since you are such a big fan of government power, perhaps you do think there are no limits on the individual rights that government bureaucrats can demand to be waived.)

And I am not saying anyone is "corrupt," I am saying you and many other are inclined to develop and apply law in line with their policy preferences rather than with a concern for textualism and originalism. I do not think it "corrupt" to develop and apply law influenced by policy preferences, though I do think it dishonest to do so while claiming to be seriously committed to textualism and originalism. I share your general affinity for honestly, and so I wish you and many others would honestly acknowledge how policy preferences rather than textualism and originalism shapes legal work (or betting predictions).

Posted by: Doug B. | Nov 17, 2022 9:20:56 PM

Doug --

"Indeed, Bill, anyone seriously committed to textualism and originalism would be troubled by the extreme reliance on pleas bargains in modern CJ systems. See, e.g., Albert W. Alschuler, Plea Bargaining and Its History, 79 Columbia Law Review 1 (1979). So, you have usefully highlighted yet another area in which you, courts and many others favor policy preferences over a commitment to textualism and and originalism."

OK, here's the scorecard. I have the Supreme Court's approval of plea bargaining in Santobello, Bordendircher and Brady v. United States; every circuits' explicit acceptance of it; its uniform and frequent practice in every jurisdiction in the country; and its embrace over many decades by thousands of prosecution and defense practitioners alike.

You have a 43 year-old law review article.

Is there ANY POINT AT ALL at which academia is prepared to admit it's wrong about plea bargaining?

And let me ask this: If, as you strongly imply, federal prosecutors need Congressional authorization to offer appeal waivers, do they also need such authorization to emphasize pornography prosecutions (in Republican administrations) and environmental prosecutions (in Democratic administrations)?

Last I looked, the executive and legislative branches were co-equal. The executive branch is therefore, by definition, not subordinate. Every normal practitioner understands that the executive has considerable discretion, not needing legislative approval, as to how to do its job. Indeed, defense lawyers routinely plead with the executive to use its discretion to cut their client a break, in charging or sentencing or both. Are they disrespecting Congress?

When I invented appeal waivers, I spoke for the executive branch, since I was an officer thereof. Over three decades, they have won the approval of the judicial branch, and the legislative branch has never spoken, much less acted, against them. When Aunt Janet and I and the courts all agree on X, the idea that X is illicit in any sense whatever is just an excursion into fantasyland.

Posted by: Bill Otis | Nov 18, 2022 2:48:12 PM

Bill, I am focused on textualism and originalism, not Warren/Burger Court era precedents (or law professors articles). If your position is that Warren/Burger Court era precedents are more important and praiseworthy than textualism and originalism, fine. I always sensed you really did not care for textualism and originalism -- or perhaps only care for them when they supported your policy preferences -- and you seem to be confirming that reality through this discussion.

As for which laws to focus limited resouces enforcing, that is a matter of executive discretion and a matter that often evolves as different administrations get elected and apply their own distinct views of the best ways to administer the laws passed by Congress. But do you think it would be proper for the Attorney General to say he think the US Govt carries too much debt and so every federal prosecutor should demand that every federal defendant waive his right to seek federal social security benefits as part of a plea agreement? Why not invent such SS benefit waivers to go along with appeal waivers? Is there no limit to the laws you can make up waivers around in service to your views of good public policy?

I get that a lot of people view appeal waivers as good policy, but I think your invention amounts to legislating from the executive branch because it is completely inconsistent with the text of a statute enacted by Congress. Lots of judges certainly have lots of good public policy ideas, but in our system good ideas are to become law via legislation, not Otis/prosecutor/judge-invention. The Framers did not say stuff can and should become new federal doctrine when Congress "has never spoken." But I am sure plenty of folks in the executive branch are eager to make law by executive fiat, and so maybe you can make some extra money explaining how law can/should be made when the "legislative branch has never spoken, much less acted." Is that really how you think democracy is supposed to work in the US, with bureaucrats rather than legislators in charge of making law and deciding policy?

Posted by: Doug B. | Nov 18, 2022 3:28:44 PM

Doug --

Here's the classic academia shell game: "If your position is that Warren/Burger Court era precedents are more important and praiseworthy than textualism and originalism, fine. I always sensed you really did not care for textualism and originalism -- or perhaps only care for them when they supported your policy preferences -- and you seem to be confirming that reality through this discussion."

Of course I never remotely said or intimated that "Warren/Burger Court era precedents are more important and praiseworthy than textualism and originalism." You just made that up and want to jam it in my mouth to set up your scolding punch line, "I always sensed you really did not care for textualism and originalism -- or perhaps only care for them when they supported your policy preferences..."

Baloney. Precedent does have a degree or importance, you bet, but must yield when other, more important things so dictate, as Alito pointed out in Dobbs and Scalia in his dissent in Dickerson.

Do you agree with the strongly textualist and originalist decision in Dobbs? Yes or no. No word salad.

"...do you think it would be proper for the Attorney General to say he think the US Govt carries too much debt and so every federal prosecutor should demand that every federal defendant waive his right to seek federal social security benefits as part of a plea agreement?"

Yes it would be proper. But I think it would be unwise to have so rigid a rule.

What you're missing (intentionally?) is that such a condition IS NEVER, EVER FORCED ON A DEFENDANT. The defendant can say a big fat NO to the proposed plea bargain and exercise his absolute right to a trial. If he does not want to, or his defense lawyer is too cowardly or too unprepared or too lazy to go to trial, that's not really my doing, is it?

You have dozens if not hundreds of defense lawyers who read this blog. I would be shocked if the great majority of them did NOT seek, negotiate, and sign plea bargains. By contrast, not one single time in my career did I seek or agree to one. Not one time. Why not direct your complaints to the people who are perpetuating what you (but not the courts) see as a problem?

If you have issues with plea bargains and/or their terms, why not take them up, not with me, but with (1) your numerous defense lawyer friends who do them all the time, and/or (2) Nancy Pelosi, while she still has her job, to pass some legislation outlawing them?

Posted by: Bill Otis | Nov 21, 2022 12:48:45 PM

Bill, you stressed the Supreme Court's approval of plea bargaining in Santobello, Bordendircher and Brady, and entirely ignored text and history. That led me to comment that it seems you view Warren/Burger Court era precedents more important and praiseworthy than textualism and originalism in this context. My second comment reflected the fact that this is a common move for you when we discuss any pro-defendant constitutional text and history in applications of the Second or Sixth Amendments.

It is telling, Bill, that you do not want to talk about textualism and originalism as it applies to felon-in-possession prohibitions. Instead you want to discuss Dobbs. Okay: as a textualist, I have long thought the Ninth Amendment provided a much more sensible foundation for the right of women to control their body than the due process clause. So, I see some merit in the Dobbs opinion concluding the Fourteenth Amendment's Due Process Clause is not the right place to find constitutionally protected abortion rights. Meanwhile, I have always been troubled by originalism in both theory and practice, and I personally disgree with it playing a dominant role in the interpretation of any part of the Constitution.

But SCOTUS says textualism and originalism must now control the Second Amendment's application, and so I struggle to see how that readily supports FIPs (or a number of other federal gun control provisions). Of course, in your telling, prosecutors could seek waivers of all rights under all the amendments and under every federal and state statute. Indeed, it is telling that you seem to think prosecutors should have broad authority to seek waivers of any and every right possessed by individuals as part of any plea agreement. I assume that would also include waiver of rights to have (or not have) children, waivers to go (or not go) to church, and so on. And yet you now say you never sought or agreed to plea agreements. Why do you disavow seeking such deals after being so proud to invent a provision to be used therein?

I do not have a "issues" with plea bargains, I have a "issues" with DOJ bureaucrats using plea bargains to make law from the executive branch in contradiction of the law as duly legislated by Congress. You know Congress already passed a law to allow defendants to appeal, and itshould not have to legislate to prevent prosecutors from nullifying that law. You did not like how the appeal law enacted by Congress functioned so you invented a way to nullify that law though the coercive power of plea deals. For someone who preaches the value of honesty, it is troubling to me that you were so eager to help nullify a law enacted by Congress that you did not like, and yet you do want to be honest about your own subversion of democracy in the name of your policy preferences. So be it. Your affinity for the "Rule of Bill" has long been on display, and I still find it useful to note your pride in "inventing" law when at DOJ.

Posted by: Doug B | Nov 21, 2022 3:51:15 PM

Doug --

"I do not have a 'issues' with plea bargains..."

Of course you do. Congress never enacted a statute authorizing it and, under your emphatically repeated reasoning, that makes plea bargaining illicit. Time to admit it. You don't believe in the Constitution we have, with co-equal branches. You believe in a fantasy Constitution in which the legislative branch directs the most minute details of the (formerly) co-equal executive branch. But I don't, and the fact that the courts uniformly agree with my view doesn't make that view incorrect. It makes your dissenting view foot-stomping outlier territory.

"You did not like how the appeal law enacted by Congress functioned so you invented a way to nullify that law though the coercive power of plea deals. For someone who preaches the value of honesty, it is troubling to me that you were so eager to help nullify a law enacted by Congress that you did not like..."

1. Name one court that, in more than 30 years, has said that the waiver of appeal is a "nullification" of a law enacted by Congress.

2. That I created what has become (in administrations of both parties) a standard provision in the plea bargains your defense lawyer buddies are so eager to get (so they can avoid a trial they don't want and will lose) is hardly indicative of dishonesty, and your accusing me of dishonesty is unbecoming, disrespectful and false. The waiver is at worst a fully legal, cost-saving and time-saving product that enables us to bring at least some sort of justice to the child rapists, muggers and killers your defense bar swoons over ("justice involved individuals," as you comically like to call them).

And still with all that, any defendant who dislikes the waiver or any other part of a proposed bargain, for any reason or no reason, can decline and go to trial. That your defense buddies don't do that is their problem (with your alliance), not mine.

I actually wish the defense bar would at least try to overcome its laziness and cowardice and go to trial more often, but it's just not going to happen. Maybe you could encourage them instead of toss false accusations at me.

Posted by: Bill Otis | Nov 22, 2022 6:31:02 PM

Bill, you are doing so much conflation here, it is hard to unpack it all. Let me try to just hit some highlights:

1. For starters, I do not have issues with plea bargains, though I can see how a true textualist/originalist would question all the power they now give to DOJ bureaucrats. (I know you are a statist, not a true textualist/originalist, so it is no surprise you are all for plea deals.) Because I am not an originalist, I am okay with plea deals as long as the terms do not plainly contradict the clear text of legislative enactments. That is what appeal waivers problematically do.

2. If you gave defendants and defense attorneys the option of the same plea deal with or without an appeal waiver, none would take the one with the waiver. The "cost-saving and time-saving" benefits you stress are the statist benefits you, as a DOJ bureaucrat, were eager to achieve for the state and you cleverly invented a means to do so without bothering to get these statist benefits approved in a statute. Ergo, this is an example of legislating from the executive branch -- Congress expressly gave defendants the right of appeal, but you found this right too costly and time consuming, so you concocted a means to nullify the right through waivers to serve your statist policy interests.

3. How about this, Bill, "re-invent" the modern appeal waiver as a term that a defendant can reject with no other change to the plea deal. That would make it a free choice of the defendant to waive if they so wanted in any case with a plea deal. (I would still have a problem with such a waiver violating the terms of the appeal statute enacted by Congress, but at least it would not be so statist and coercive.) Would you endorse that modification of your invention?

4. If you want the defense bar to go to trial more often, here is another suggestion. How about when a prosecutor makes a plea offer, he also promises he will not seek a sentence more than 10% higher if the defendant is convicted at trial? I promise you that if/when prosecutors work toward reducting the severity of the trial penalty, then there will be more trials. And, as always, what you want to blame others for can be readily addressed by prosecutors.

Posted by: Doug B. | Nov 23, 2022 12:10:53 PM

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