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January 9, 2023

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

January 9, 2023 at 04:58 PM | Permalink


I am running for elected office, I will make my announcement soon. I can appreciate the 3rd circuit doing its job and vacating this erroneous opinion. No constitutional right shall be infringed no matter how unpopular it is. Non violent felons should have the right to exercise their constitutional right to bear arms.

Posted by: Joeziel | Jan 10, 2023 11:42:32 AM

Perhaps the En Banc Third Circuit will adopt (now) Justice Barrett's dissenting position from the 7th Circuit case of Kanter v. Barr (7th Cir. March 15, 2019) in this case? Why should non-violent felons be denied the right to possess a firearm?

Posted by: Jim Gormley | Jan 11, 2023 9:02:40 AM

With the hearing yesterday regarding sentencing guidelines for the upcoming changes, what are your thoughts and do you believe sentencing will be retroactive ?

Posted by: Donte | Jan 13, 2023 11:45:24 AM

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