Last week the Third Circuit en banc decided Range v. Attorney General, holding that a person convicted of a Pennsylvania fraud offense—a misdemeanor punishable by up to five years' imprisonment—remains among "the people" protected by the Second Amendment, and that the government failed to show that our history and tradition of firearm regulation supported disarming him. Authored by Judge Thomas Hardiman and joined by eight other judges, the court found the prohibition in the federal Gun Control Act disarming persons convicted of crimes punishable by more than one-years' imprisonment (aka "felons"), 18 U.S.C. § 922(g)(1), unconstitutional as applied to the plaintiff.
That decision creates a circuit conflict among cases decided since the Supreme Court's 2022 Bruen decision holding that restrictions on the right to keep and bear arms must be decided on the basis of text and history, not tiers of scrutiny. Last month, in United States v. Jackson, the Eighth Circuit upheld § 922(g)(1) based on the holding that felons as a class lose Second Amendment rights. Defendant Jackson had two prior convictions for sale of a controlled substance when apprehended with a gun after a "shots fired" alert. A motion is pending to file a petition for rehearing by July 14, so the case may not be ripe for Supreme Court review for some time. That means that Range will land on the Court's docket far ahead of Jackson.
The Range en banc decision, although it's an as-applied challenge, is consistent with much of the reasoning in the Fifth Circuit's Rahimi en banc decision, which found the prohibition on gun possession by a person subject to a domestic restraining order facially to violate the Second Amendment. The Biden Administration's Department of Justice is beating on the Supreme Court's door to hear Rahimi, which has bad facts, but it may slow walk Range because it has good facts.
