As I discussed in my last blog post, the constitutionality of many current firearms regulations are in doubt following the Supreme Court’s ruling in Bruen. Since establishing an individual right to bear arms in Heller, the United States Supreme Court has yet to decide who can lawfully possess firearms. Despite the issue not being raised, Heller included language that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”. Justice Kavanaugh’s concurrence in Bruen cited that specific language, while Judge Alito’s specified that nothing in the holding decided who can lawfully possess a firearm.
The conflict between current firearms regulations and “this Nation’s historical tradition” isn’t going away. Criminal defendants across the country have begun to challenge their convictions on firearms offenses on Second Amendment grounds. The Supreme Court has granted certiorari in United States v. Rahimi, where the Fifth Circuit Court of Appeals struck down a federal statute banning persons under domestic violence restraining orders from possessing firearms, citing Bruen. These challenges are also coming to bans on convicted felons possessing guns.
A man named Bryan Range challenged his convicted under the federal felon-in-possession law on the grounds that the statute violated his Second Amendment right to bear arms. Range’s conviction stemmed from knowingly making a false statement to obtain food stamps in Pennsylvania in 1995, for which he received three years’ probation. Under Pennsylvania law, his offense was considered a misdemeanor, but due to a possible sentence of five years, it was considered a felony under federal law. Range claimed that there was no historical tradition of disarming people like him and in June of 2023, the Third Circuit Court of Appeals agreed, reversing Range’s conviction.
While acknowledging the language in Heller, McDonald, and Bruen that limited firearms to “law-abiding, responsible citizens”, the Range court noted that the criminal history of the plaintiffs in those cases were not at issue. After conducting a historical analysis, the Third Circuit noted that the distinction between felonies and misdemeanors that we employ today did not exist at the time of our founding and many current felonies are relatively minor offenses compared to when the bill of rights was adopted. The court found that the ban on convicted felons possessing guns had no historical analog, noting the law had been in effect only since 1961. The Third Circuit explicitly rejected the Government’s position that only “law-abiding, responsible citizens” were protected by the Second Amendment and found that Range had a right to bear arms.
The logic of the Third Circuit’s opinion isn’t limited just to Range; any convicted felon could raise the same issues. Those convicted of only minor felonies that would not have been felonies at the founding are particularly well positioned to argue they are one of “the people” protected by the Second Amendment? Until the Supreme Court of the United States addresses this issue directly, the constitutionality of these statutes will remain unclear. But all criminal defendants charged under felon-in-possession laws need to be litigating this issue unless and until the Supreme Court rules otherwise.