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.