En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range

Eighteen month ago, as reported in this post, the full en banc Third Circuit found unconstitutional, on the basis of the landmark Second Amendment Bruen opinion, the application of federal felon-in-possession law to a person with a false statement conviction from decades prior.  The Supreme Court called upon the Third Circuit to review its work following the Justices' subsequent 2024 Second Amendent ruling in Rahimi.  Today, the en banc Third Circuit reached the same Second Amendment outcome in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here).

The new majority opinion in Range runs only 20 pages, and it is followed by nearly 150 pages of concurrences and dissents. Here's the full run down for those interested in the headcount:

HARDIMAN, Circuit Judge, filed the Opinion of the Court with whom CHAGARES, Chief Judge, and JORDAN, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERY-REEVES, and CHUNG, Circuit Judges, join.

MATEY, Circuit Judge, filed a concurring opinion.  PHIPPS, Circuit Judge, filed a concurring opinion.  KRAUSE, Circuit Judge, filed an opinion concurring in the judgment, with whom ROTH, Circuit Judge, joins in part.  ROTH, Circuit Judge, filed an opinion concurring in the judgment, with whom KRAUSE and CHUNG, Circuit Judges, join in part. AMBRO, Circuit Judge, concurs in the judgment only. SHWARTZ, Circuit Judge, filed a dissenting opinion with whom RESTREPO, Circuit Judge, joins.

For those who celebrate Festivus traditions, it would appear the Third Circuit has served up some "feats of strength" as well as some "airing of grievances."  As for the basics, here is how Judge Hardiman's majority opinion starts and ends:

Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-inpossession” law — 18 U.S.C. § 922(g)(1) — violates his Second Amendment right to keep and bear arms.  We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand....

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.  More than two decades after he was convicted of foodstamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm.  The record contains no evidence that Range poses a physical danger to others.  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 for Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

As I have mentioned in the past, Bryan Range's case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime.  Because this Range ruling creates a clear circuit split on the constitutionality of 18 U.S.C. § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the Second Amendment in this particular "narrow" case.