Third Circuit panel states "Second Amendment’s touchstone is dangerousness" when remanding rights claim by person with multiple gambling-related offenses

A helpful lawyer made sure I saw this week's important new ruling by a Third Circuit panel in Pitsilides v. Barr, No. 21-3320 (3d Cir. Feb. 10, 2025) (available here).  I highly recommend the Pitsilides ruling in full, especially because the Third Circuit, thanks to its prior Range rulings (see here and here), has been the leading court giving concrete meaning to the Suprmere Court's Second Amendment jurisprudence in the context of federal law's broad criminal prohibition on gun possession for persons with certain criminal records.

Though all 20 pages of Pitsilides merit a close read, here are excerpts (with some cites and footnotes removed) that seem to capture the heart of this interesting decisions:

[W]hile Rahimi and Range II did not purport to comprehensively define the metes and bounds of justifiable burdens on the Second Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misus[ing firearms],” Rahimi, 602 U.S. at 698, in other words, when he would likely “pose[] a physical danger to others” if armed, Range II, 124 F.4th at 232.  Indeed, as Judge Bibas presciently observed even before Bruen, “[a]s an original matter, the Second Amendment’s touchstone is dangerousness,” Folajtar v. Att’y Gen., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting); see also Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (“[L]egislatures have the power to prohibit dangerous people from possessing guns.”), and our sister circuits have articulated the principle similarly in light of Rahimi....

As evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony....  [W]e agree with the Sixth Circuit: Courts adjudicating as-applied challenges to § 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament.  As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of § 922(g)(1) is constitutional under the Second Amendment.  See 124 F.4th at 232.  Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed. Id....

But as Bruen, Rahimi, and Range II teach, we may not paint with such a broad brush when evaluating an individual felon’s as-applied challenge.  So while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others.  That assessment necessarily requires individualized factual findings.

While this case helpfully highlights how Second Amendment doctrine is moving toward a new "touchstone" of dangerousness, I am not sure it is all that helpful in unpacking how this ineherently vague standard is to be applied.  I have dozens of questions about how a "dangerousness" standard is to apply in the Second Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangeous, and were convicted of possibly dangerous crimes, in their twenties who thereafter mature and are no longer dangerous years later.  Do these folks have Second Amendment rights?  More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have Second Amendment rights than men because they are, generally speaking, less dangerous?  And, procedurally, who bears what evidentiary burden on the issue of "dangerousness" in civil and criminal cases?  I assume Pitsilides will have to prove by a preponderance that he is not dangerous in the civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC § 922(g) criminal prosecution?

Interesting times.