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Abstract
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The article discusses the court case Range v. Attorney General in which the Third Circuit held that there were no historical analogues to stripping a nonviolent offender of his Second Amendment rights. It describes the case filed by Brian Range alleging that his Second Amendment rights were violated when he was banned from owning firearms after his conviction for making a false statement to obtain food stamp assistance. It examines the application of the history-and-tradition test in the case.
s gun rights have evolved in the United States, the Supreme Court has moved away from a means-end test and adopted a history-and-tradition framework for evaluating Second Amendment challenges.1 This framework requires that any firearm regulation be "consistent with this Nation's historical tradition of firearm regulation."2 Numerous federal courts have already used this test to swiftly strike down over a dozen state and federal laws cabining gun possession rights.3 Lower courts presented with challenges to felon-in-possession laws, however, have greatly differed over how to analogize firearm regulations of the Founding to the present.4 Recently, in Range v. Attorney General,5 the Third Circuit applied this test, as required under New York State Rifle & Pistol Association v. Bruen,6 and determined there were not historical analogues to stripping a nonviolent offender7 of his Second Amendment rights. The decision -- the first of a federal circuit applying 18 U.S.C. § 922(g)(1) after Bruen8 -- has raised questions about whether felon-in-possession laws are still "presumptively lawful."9 Range narrowly decided that firearm disenfranchisement of convicted individuals "like Range" is unconstitutional.10 The Third Circuit's inchoate "like Range" test underscores that the history-and-tradition test is difficult for evaluating challenges to felon-in-possession laws. By failing to directly grapple with the history-and-tradition test's indeterminacy, the Third Circuit missed an opportunity to adopt a more definite standard of dangerousness as the "touchstone."11
In August of 1995, Bryan Range pleaded guilty to one count of making a false statement to obtain food stamp assistance, in violation of title 62, section 481(a) of the Pennsylvania Consolidated Statutes.12 Mr. Range, around the time of the offense, earned about $300 per week.13 Mr. Range's wife, Mrs. Range, filled out an application for food stamps, and on the application, Mr. Range's income was omitted.14 Mr. Range accepted responsibility for the omission on the application.15
At that time, Mr. Range's false statement was classified as a first-degree misdemeanor, punishable by a maximum of five years' imprisonment, under Pennsylvania law.16 Consequently, his conviction triggered the application of § 922(g)(1),17 but Mr. Range maintained that he was not informed by the prosecutor or judge that his pleading would result in a firearms possession ban.18 Unaware that he was barred, Mr. Range attempted to purchase a gun twice.19 He was unsuccessful both times, and upon further research, he realized his nonviolent conviction precluded him from possessing a gun.20
Mr. Range, alleging that § 922(g)(1) violated his Second Amendment rights, filed suit in the District Court for the Eastern District of Pennsylvania.21 Judge Pratter looked to the Third Circuit's test in Binderup v. Attorney General22 to determine whether a crime is so serious as to warrant a ban on a felon's possession of firearms. Judge Pratter found one factor -- cross-jurisdictional consensus about the seriousness of crime -- weighed in favor of the government.23 This was sufficient for the government to prevail at step one, so the court granted summary judgment for the government.24 Mr. Range appealed.25
The Third Circuit affirmed.26 In a per curiam opinion, Judges Shwartz, Krause, and Roth held that § 922(g)(1), as applied to Mr. Range, was constitutional.27 Between Mr. Range's appeal and the Third Circuit hearing the case, the Supreme Court decided Bruen. Establishing a history-and-tradition test, Bruen abrogated the Third Circuit's seriousness test from Binderup.28 The panel applied the Bruen history-and-tradition test -- surveying the historical record of felon-in-possession laws in England and in the Founding era -- which first looks at whether the Second Amendment covers the regulated conduct or individual and then second at whether there are historical analogues to the regulation.29 The Third Circuit determined that "§ 922(g)(1) is consistent with the Nation's history and tradition of firearm regulation."30 Mr. Range successfully petitioned for the case to be reheard en banc...
Language: en |