Court of Appeals to Hear Non-Violent Felon Second Amendment Case

In 1994, Bryan David Range made a serious error. He co-signed on a form requesting food stamps. The form claimed that he and his wife of the time were not making quite as much as he was from his job mowing lawns. On August 8, 1995, he acknowledged the mistake as his responsibility, plead guilty in a plea deal to a misdemeanor, and paid a fine of $100, $288.29 in costs, and paid back $2,458 in restitution to the state. From the appeal:

Range’s then-wife prepared an application for public assistance, which she and Range both signed.The application did not fully report Range’s income. Range does not recall reviewing the application, but he accepted responsibility for signing it and acknowledged that it was wrong for him to receive additional food stamps without having fully disclosed his income.

Three years later, Range attempted to purchase a firearm. He was denied, but he could not determine why he was denied. He talked to the person in the gun store. The clerk said it must be a mistake in the system.  Later, his wife purchased a rifle for him to go deer hunting.  Eventually Range learned he was a prohibited possessor because of the misdemeanor conviction form 1995. In 2020, he filed a lawsuit, presumably  with the help of the Second Amendment Foundation, challenging the constitutionality of the ban on his ability to exercise his Second Amendment rights. Alan Gura and Michael P. Gottlieb are representing Bryan David Range. The case was filed as Range v Barr on July 15,  2020.

Summary judgement for the federal government was granted by the United States District Court for the Eastern District of Pennsylvania  on August 30, 2021. The court used a balancing test to find for the government.  On September 30, 2021, Range appealed to the Third Circuit court of Appeals. The Third Circuit covers Delaware, Pennsylvania and New Jersey and the District of the Virgin Islands.

The case name changed from Range v Barr to Range v Lombardo and is commonly referred to Range v  Attorney General.

On June 22, 2022, the Supreme Court issued the opinion in Bruen, clarifying the Heller decision and setting forth explicit guidelines for lower courts to decide Second Amendment cases. The decision made clear that no “balancing tests” were to be used in Second Amendment cases, just as with other amendments protecting fundamental rights.

The three judge panel of Shwartz, Krause and Roth from the Third Circuit heard the appeal. On November 16, 2022, the panel found for the government. From the decision:

Applying Bruen’s historical focus, we conclude § 922(g)(1) comports with legislatures’ longstanding authority and discretion to disarm citizens unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence. We proceed in two parts. We begin by explaining how the Supreme Court replaced our two-step framework with a distinct test focused on the text and history of the Second Amendment. Next, we examine disarmament laws from the seventeenth to the nineteenth centuries to determine whether Range’s disarmament fits within the nation’s history and tradition of the right to keep and bear arms.

The judges concluded “The people” in the Second Amendment only applies to “law abiding people.” Therefore the legislature can take away anyone’s rights protected by the Second Amendment by defining them as non-law abiding.  The three judge panel was unanimous.

On November 16, 2022, at the Third Circuit, 14 judges voted on whether to hear the case en banc.  A majority voted to vacate the opinion and judgement of November 16, 2022. The case will be heard en banc, with oral arguments presented on February 15, 2023. From the case:

A majority of the active judges having voted for rehearing en banc in the above captioned case, it is ordered that the petition for rehearing is GRANTED. The case will be argued before the en banc court on Wednesday, February 15, 2023 at 10:00 a.m. The opinion and judgment entered November 16, 2022 are hereby vacated.

The oral arguments were heard on February 15, 2023. The oral arguments may be heard at the link.

There are two theories put forward in the case. The government’s theory is the Second Amendment only applies to “law abiding citizens” and that anyone who “disrespects the law” is not law abiding. The government can therefore take away the rights protected by the Second Amendment. Call it the “disrespect theory.”

The theory put forward in support of Bryan David Range is the Second Amendment protects fundamental rights belonging to all the people. It may only be abrogated for people shown to be dangerous and capable of violent acts in a court of law.  Bryan David Range should have the ban against him removed, because he has never demonstrated he is a dangerous, violent person. Call it the “dangerous person” theory.

Federal public defenders in the Third Circuit filed an amicus brief defending the “dangerous person” theory.

The panel opinion analogized the challenged firearm regulation to purported historical practices that it describes at extremely high levels of generality—e.g., historical measures disarming people who evinced a “disrespect for the rule of law.” The Court should take heed of Bruen’s emphatic rejection of such broad analogizing—which amounts to interest-balancing under the guise of historical comparison—and insist that the government demonstrate that challenged regulations are consistent with a narrow, well-defined historical tradition.

The decision by the Third Circuit Court of Appeals bodes well for vindication of the “dangerous person” theory.

A court will seldom agree to hear a case en banc if a majority agree with the three judge panel decision.  While the three judges on the panel agreed with the “disrespect ” theory, at least two other judges on the Third Circuit have openly agreed with the “dangerous person” theory.

One of the major problems with the “disrespect theory’ is there is no limit on who can be ruled to have disrespect for the law. People who jaywalk or fail to signal when changing lanes could, under this theory, have their rights protected by the Second Amendment taken from them. Recent events have shown how a party in power will extend the full force of the law to those seen to be disrespectful of their power, such as the January 6 defendants.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.