We repeat what we wrote in the blog post of May 12. This is not a 2nd Amendment blog. But since the N.Y. State Rifle case was issued by the U.S. Supreme Court, it seemed clear that a lot of law restricting who could keep firearms was about to change. We write about it because in 2021 Pennsylvania saw nearly 38,000 cases where plaintiffs alleged “immediate fear” of physical harm. Certainly, some of them involved firearms as we live in a country where 40% of households have a firearm.
Until the 2022 Supreme Court decision, if someone was arrested or a temporary protection order was granted in Pennsylvania, it was usually required that the defendant deposit his/her weapons with “authorities.” But, in N.Y. State Rifle Association, the Supreme Court signaled that these statutory regulations did not adequately protect rights to bear arms as guaranteed by the 2nd Amendment to the Constitution.
Bryan Range, pled guilty in 1995 to a state crime associated with wrongfully securing food stamps. He was sentenced to 3 years probation as the crime was then a misdemeanor. Since 1995 Mr. Range’s run-ins with authorities have been confined to traffic offenses and fishing without the requisite license. While his offenses were against the Commonwealth, federal law prohibits people who are convicted of crimes for which they could be sentenced to a year or more in prison from possessing a firearm or ammunition. Because Range’s food stamp crime carried a penalty of up to five years in prison, he fell into the class of those forbidden to possess a gun. 18 U.S.C. 922(g)(1). In 1998 Range tried to purchase a weapon but a background check revealed him as an “ineligible receiver” (my bad pun) under federal law. Perhaps sensing that the Supreme Court was about to make new 2nd Amendment law, in 2021 Mr. Range filed an action to have the federal law overturned. The Department of Justice opposed his request. While acknowledging that his food stamp crime was a non violent misdemeanor (in contrast to a felony) where the sentence reflected little risk to the community, the DOJ noted that the Bureau of Alcohol, Tobacco, Firearms and Explosives had the right to deny a gun purchase if other states treated similar crimes as felonies. Food stamp fraud is a felony in roughly 40 states. The District Court decided on summary judgment that the seriousness of the crime in other states was a sufficient basis to deny Mr. Range access to a gun, even though his crime was but a misdemeanor here in Pennsylvania. Range v. Attorney General of the U.S., 557 F.Supp. at 615-6 (E.D.Pa. 2021). An appeal to the 3rd Circuit followed as did New York State Rifle Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022).
The last case held that firearm regulations of all stripes were valid only if consistent with historical tradition. Mr. Range asserted that food stamp fraud would not have affected his “traditional” right to bear arms. The Third Circuit Court of Appeals held on June 6, 2023, that it is now the burden of the Justice Department to show a “historical tradition” supporting the removal of guns or the denial of gun sales to “citizens.”
In the past the Supreme Court approved of regulations intended to assure that only “law abiding citizens” could possess guns and they needed a “lawful purpose.” This was inconsistent with the 2022 decision by the Supreme Court. Moreover, the label “misdemeanor” or “felony” was no longer useful in deciding who could have a gun as there are now a vast array of non-violent felonies such as Pennsylvania’s felony for third offense library theft or intercepting electronic mail not directed to you. (18 Pa.C.S. 3929.1 and 7613). In the 18th century, a felony was, literally, a hanging offense. The federal prohibition that stopped Mr. Range from owning a firearm dates to 1961. An earlier iteration from 1938 said only “violent” criminals could not possess guns or ammunition. The 2022 Supreme Court ruling consistently holds that it is the law from the time of the 2nd Amendment (1790), not later incarnations, that guides who can possess a firearm. In today’s case, the Third Circuit holds that it need not decide the limits of gun ownership beyond finding that were Mr. Range the 18th century equivalent of a food stamp criminal, he would have been permitted to have a gun and ammo. References to 18th century laws proscribing gun ownership by loyalists, Native Americans, Catholics, and Blacks were dismissed as irrelevant to analysis of this case. Similarly, the appeals court agrees that there were some draconian felony laws in the 18th century such that death was a punishment for horse-theft and forgery. But these extremes do not make it more palatable to remove Mr. Range’s right to bear arms in the context of misrepresenting his income on a food stamp application. In a kind of bizarre wander down History Lane, the court notes that colonial laws did allow “forfeiture” of guns as punishment for a crime but nothing kept Americans from replacing their forfeited gun as soon as the local gunsmith got the forge hot.
The Court concludes that the trial court must declare Mr. Range entitled to acquire a weapon. In so doing, it says its decision is a narrow one. That may be true in a world where the offense affecting 2nd Amendment entitlements involved a single person who misreported his income on a state form 25 years ago. But, the concurrence of Judge David Porter sends a far different signal. Porter observes that Congress took no action to abridge any 2nd Amendment rights until the 20th century. The thrust of his opinion suggests that there is no right to abridge “anyone’s” right to keep and bear arms. In a world of presumed innocence (a presumption not imbedded in either the Constitution or the Bill of Rights) we have suggested that those charged with violent crimes or subject to proceedings under the Mental Health Procedures Act may have a right to keep their weapons. The case disposed of today involves 18 U.S.C. 922(g)(1). Section (g)(4) of the same law is what prevents those who are a danger to themselves or others from possessing weapons. Isn’t (g)(4) subject to the same ruling as (g)(1) got today, especially if one reads the interpretation of the concurring jurist?
There is a lot in the air on this issue, as demonstrated by the four opinions consuming 100 pages. A lot of references are made to the language in the N.Y. Rifle Association opinions affirming the concept that felons should not have guns. The majority opinion relies heavily on the facts since there is little menacing about Mr. Range. But what about that fellow who swipes library books a third time? Does the fact that the third offense is a felony make him the kind of menace whose guns should be seized with his library card? And if horse stealing was a felony in 1790, shouldn’t modern day horse thieves at least have their guns seized even if modern society now spares them death by hanging? This writer enjoyed the foray into legal history but measuring 21st century safety needs with 18th century weapons laws does not seem to “compute.”
Range v. Attorney General of the United States 21-2835 (U.S. Cir. Court of App, 3rd)