New Third Circuit panel ruling rejects Second Amendment challenge to felon-in-possession charge for person on supervised release

The Third Circuit issued a notable panel ruling yesterday that rejected a Second Amendment claim raised by a person convicted of a federal felon-in-possession charge in Third Circuit in US v. Moore, No. 23-1843 (3d Cir. Aug. 2, 2024) (available here). Here is the start of the opinion and a few key passages:

This appeal arises under the Second Amendment to the United States Constitution and presents a question of first impression in this Court.  Does a convict completing his sentence on supervised release have a constitutional right to possess a firearm?  The answer is no….

The bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes.  Convicts could be required to forfeit their weapons and were prevented from reacquiring arms until they had finished serving their sentences.  This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, “[t]he defendant receives a term of supervised release thanks to his initial offense, and . . . it constitutes a part of the final sentence for his crime.” United States v. Haymond, 588 U.S. 634, 648 (2019) (plurality opinion); see also United States v. Island, 916 F.3d 249, 252 (3d Cir. 2019) (“The supervised release term constitutes part of the original sentence.”) (cleaned up).  Consistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release….

Our conclusion is bolstered by the Supreme Court’s recent decision in Rahimi.  As the Court explained, early American surety and affray laws establish the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Rahimi, 144 S. Ct. at 1901.  The Court applied that principle to uphold the federal law prohibiting an individual subject to a domestic violence restraining order from possessing firearms. See id. (citing 18 U.S.C. § 922(g)(8)). Taken together, the early American forfeiture laws — which required forfeiting property in general and arms in particular — likewise yield the principle that a convict may be disarmed while he completes his sentence and reintegrates into society. And this principle justifies applying § 922(g)(1) to Moore, a convict on supervised release.

Interestingly, this Moore ruling rejecting a Second Amendment challenge to a § 922(g)(1) conviction was authored by Judge Hardiman, the same Judge who authored the majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (discussed  here), which sustained a Second Amendment challenge to a § 922(g)(1) conviction (albeit before the Supreme Court’s recent Rahimi decision) .  Notably, the Moore ruling does not cite or mention Range, perhaps suggesting the court here sees a critical difference between criminalizing gun possession for a period of supervised release and criminalizing gun possession for life based on any and every felony.