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Case Law Alerts

The en banc Third Circuit concludes citizens with prior felony convictions for welfare fraud are among ‘the people’ protected by the Second Amendment.

Range v. Att’y Gen. United States of Am., 69 F.4th 96 (3d Cir. 2023) (en banc)

July 1, 2023

by Joshua W. Brownlie

In 1995, Bryan David Range pleaded guilty to one count of making a false statement to obtain food stamps in violation of Pennsylvania law and faced up to five years’ imprisonment. Following the conviction, Mr. Range attempted to purchase a firearm but was rejected by Pennsylvania’s instant background check system. He then learned the 1995 conviction prohibited him from possessing a firearm under 18 U.S.C § 922(g)(1), which criminalizes the possession of a firearm or ammunition by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year.

Mr. Range filed for equitable relief in the Eastern District of Pennsylvania, seeking among other remedies a declaration that Section 922(g)(1), as applied to him, violates the Second Amendment. The District Court granted summary judgment in favor of the Government, so Mr. Range appealed. Applying New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), a panel of the Third Circuit affirmed. Mr. Range was then granted rehearing, the panel decision was vacated, and the en banc court reversed. 

In Range, Judge Hardiman explains that Bruen abrogated the Third Circuit’s “two-step” Second Amendment jurisprudence such that future Second Amendment challenges must be analyzed under Bruen’s three-part test, which requires determination of: (1) whether the challenger is “of the people” who have Second Amendment rights; (2) whether the plain text of the Second Amendment covers the challenger’s conduct; and (3) if so, whether the government has proven that the firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

Under this analysis the en banc majority reversed the district court, concluding: (1) Mr. Range was among “the people” protected by the Second Amendment, despite his non-violent felony conviction, because the rights conferred by the Second Amendment presumptively belong to all Americans; (2) by prohibiting Mr. Range from possessing a rile to hunt and a shotgun to defend himself at home, Section 922(g)(1) regulates conduct protected by the plain text of the Second Amendment; and (3) since Section 922(g)(1) is not a “longstanding” regulation as contemplated by D.C. v. Heller, 554 U.S. 570 (2008), and it could not otherwise identify an older analogous regulation, the Government failed to demonstrate Section 922(g)(1) was consistent with the Nation’s historical tradition of firearms regulations. Accordingly, the en banc majority held that Section 922(g)(1), as applied to citizens with prior felony convictions for welfare fraud, violates the Second Amendment. 
 

 

Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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