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June 6, 2023

En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender

Creating a circuit split concerning the lawfulness of a frequently-applied federal gun control provision, the full en banc Third Circuit today found unconstitutional the application of federal felon-in-possession law to a person with a false statement conviction. The majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here), runs less than 20 pages, but it is followed by 80+ pages of concurring and dissenting opinions.  (The vote for Range was 11-4.)  Here is how the majority opinion authored by Judge Hardiman concludes:

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

The longest dissent was is authored by Judge Krause, and here are a few paragraphs of its introduction (with footnotes omitted):

Section 922(g)(1) of the U.S. Code, Title 18, embodies this delicate equilibrium and comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms.  As Justice Alito has observed, § 922(g) “is no minor provision.  It probably does more to combat gun violence than any other federal law.” And as a “longstanding” and widely accepted aspect of our national gun culture, the federal felon-possession ban — carefully crafted to respect the laws of the states — is the keystone of our national background check system, and has repeatedly been characterized by the Supreme Court as “presumptively lawful.”  Where, as here, the legislature has made a reasonable and considered judgment to disarm those who show disrespect for the law, it is not the place of unelected judges to substitute that judgment with their own.

Yet today’s majority brushes aside these realities and the seismic effect of its ruling.  It is telling that, although it describes itself as limited “to Range’s situation,” today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented.  It is also telling that it tracks precisely the Fifth Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.  And in the process, the majority creates a circuit split with the Eighth Circuit’s recent opinion in United States v. Jackson, which rejected the notion of “felony-by-felony litigation” and recognized that “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue.  Bryan Range's case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law.  But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen Second Amendment issues the Supreme Court is going to have to confront.

June 6, 2023 at 10:37 PM | Permalink


Judge Hardiman is an excellent jurist and his opinion here will have to be taken seriously by SCOTUS. Whether that means it will get affirmed is anyone's guess.

Posted by: Bill Otis | Jun 6, 2023 11:41:05 PM

Bill, you predicted a few days ago that "the basic FIP statute will stand, as per Scalia's dictum in Heller." Has Judge Hardiman changed your thinking?

Posted by: Doug B | Jun 6, 2023 11:56:14 PM


Posted by: TarlsQtr | Jun 7, 2023 1:32:54 AM

A few months ago, Master Tarls, Oklahoma voters decided they were content with just the state's (very open) medical marijuana regime and so voted against advancing to full legalization. But legislators in Delaware and Minnesota have since fully legalized. Ohio might be the next state for a direct vote, in part because most of our General Assembly has shown little interest in advancing legalization bills that have been introduced by both Dem and GOP members.

And though we now have 23 states with full legalization on the books and 47 with some form of medical marijuana legalized, the feds have only legalized the low-THC variants of cannabis (though Delta-8 versions of THC have been deemed legal at the federal level even as being prohibited by some states). As is true with so many subjects, democracy and debates over liberty and public welfare can sure get messy when there are legitimate and robust policy debates over competing values and interests. A general commitment to human freedom usually winds up on top in the USA, but not always.

And, to connect this matter to the subject of the main post, here is a new National Review piece complaining in its headline about "DOJ Prosecuting Pot-Using Gun Owners Despite State Legalization."

Posted by: Doug B | Jun 7, 2023 9:56:01 AM

Does anyone want to weigh in on the question whether Bruen, and/or Range (if affirmed by SCOTUS) could form the basis of a second or successive 2255 by a defendant convicted under 922(g)? The decision is constitutionally based, retroactive, and places some conduct beyond the reach of Congress to proscribe.

Posted by: Da Man | Jun 7, 2023 12:14:43 PM

My sense, Da Man, is that only very low-level (nonviolent, nondangerous) felonies will be outside the scope of FIPs, and that only a very few convicted under 922(g) based on low-level offense gets sentenced to a lengthy federal prison term. Still, among the interesting question for those incarcerated will be not only 2255 prospects, but also possibly a reduction in sentence under 3582.

Posted by: Doug B | Jun 7, 2023 2:25:32 PM

Doug --

"Bill, you predicted a few days ago that "the basic FIP statute will stand, as per Scalia's dictum in Heller." Has Judge Hardiman changed your thinking?"

No. The case for the Range result is credible but not, at the SCOTUS level, winning, or so is my estimate. I'll go way out on a limb and guess that, if and when Range reaches SCOTUS, it will be reversed with Justice Jackson writing for herself and The Chief, Alito, Kagan, and Sotomayor. Gorsuch will write the dissent for himself and Thomas, Kavanaugh and Barrett.

And even if I'm wrong, the FIP statute will mostly stand; the exceptions will be few, as you seem to suggest.

Posted by: Bill Otis | Jun 7, 2023 2:57:25 PM

Notably, Bill, Prez Biden's two confirmed nominees to the Third Circuit, Arianna Freeman and Tamika Montgomery-Reeves, both voted with Judge Hardiman. Judge Freeman is a former federal public defender, like Justice Jackson. Not sure that means Justice Jackson votes for limits on a federal criminal prohibition here, but I do not think it is a given that all Dem appointees will all vote against all future Second Amendment claims.

If (and when?) some form of FIP is upheld, it will be interesting to see if the SCOTUS majority will formally jettison originalism in this setting or will just do so in practice rather than in name. Among the reasons I am following this jurisprudence closely is because it provides an interesting window into how originalism functions and when other values come to eclipse commitment to this jurisprudential method.

Posted by: Doug B | Jun 7, 2023 3:42:19 PM

I think a lifetime disability is a problem--not sure that I'd strike it down.

Posted by: federalist | Jun 7, 2023 3:47:12 PM


It occurred to me that defendants cannot invoke Bruen for second or successive 2255s because they do not yet have the new rule they need -- that is, a Range-like opinion from the SCOTUS extending Bruen to 922(g).

Da Man

Posted by: Da Man | Jun 8, 2023 6:57:54 AM

I was assuming, Da Man, that you were assuming that Range got affirmed by SCOTUS...

Posted by: Doug B | Jun 8, 2023 9:02:47 AM


In hindsight my question asked about both Bruen and Range, but only a SOCTUS affirmance of Range could provide the new rule necessary to trigger a 2255(h) application by defendants convicted of 922(g) based on a non-violent prior felony.

Da Man

Posted by: Da Man | Jun 8, 2023 9:26:25 AM

Doug --

Thinking more about it, one thing the Court could do, a la' the honest services statute in Skilling v. United States, 561 U.S. 358 (2010), is simply "construe" the "felony" is the "felon in possession" statute to mean "a dangerous or violent felony." For the reasons stated by Scalia in his Skilling concurrence, I think this would be some pretty questionable judicial freelancing, but I can certainly see it happening.

I still think the slightly greater likelihood is for the three liberals plus the Chief and Alito to ratify the statute as is, on the theory that they want to defer to Congress to make the judgment about where the prohibition line should be drawn, even if in the first instance they would have drawn it somewhere else.

Posted by: Bill Otis | Jun 8, 2023 9:52:41 AM

Tellingly, Bill, you talk about Second Amendment interpretation here as if these issues are just policy matters that also includes policy debates over whether it should be unelected Justices (claiming to be originalists?) or elected members of Congress who ought to be doing lots of legal line-drawing. So described, Bill, you provide a candid account of all work by all courts (and all other legal actors), since interpreting the Constitution and other legal text fundamentally involves a range of policy-based decision-making whether done under the guise of originalism or some other constitutional philosophy.

For the record, I believe originalist analysis often can be quite useful and important as a component of wise (policy) debates over the meaning and application of the Constitution. But on-going Second Amendment debates usefully highlight, in my view, how incomplete, inconsistent and problematic (and judicially invented) originalist jurisprudence can be in some settings.

Posted by: Doug B | Jun 8, 2023 11:40:21 AM

For thousands of defendants who have already completed service of their sentences (including Supervised Release), a Supreme Court decision that affirms Range v. Attorney General (3d Cir. 2023) could lead to the filing of hundreds of Petitions for a Writ of Error Coram Nobis (pursuant to the All Writs Act, 28 U.S. Code sec. 1651(a)), to seek legal relief. For an excellent example of how this would work, see, United States v. Lesane, 40 F.4th 191 (4th Cir. 2022), where the Fourth Circuit laid out a comprehensive roadmap of how Coram Nobis is to be applied. Lesane's conviction for being a felon in possession [18 U. S. Code 922(g)(1)] (for which he spent many years in prison, including 2 additional years for a Supervised Release violation) was overturned, based upon the prior case of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (En Banc). Lesane actually had no prior felony convictions at the time he was convicted under 922(g)(1) because the maximum sentence he faced for the 2 prior North Carolina convictions was 10 months, not a year or more. Although Coram Nobis has been rarely invoked in the past, Supreme Court affirmance of the Range decision could lead to it being invoked much more frequently.

Posted by: Jim Gormley | Jun 10, 2023 7:09:31 AM

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