Range v. United States, 124 F.4th 218 (3rd Cir. 2024)

Case Background

In August 1995, Bryan Range pleaded guilty in Pennsylvania to making a false statement to obtain food stamp assistance, a nonviolent, non-dangerous offense punishable by up to five years in prison. Title 18, Section 922(g)(1) of federal law prohibits firearm possession by anyone convicted of a crime punishable by more than one year. Accordingly, Range was denied the ability to purchase a firearm. Range filed an “as-applied” challenge to this prohibition. In his challenge, he relied upon the Second Amendment to the United States Constitution.

Lower Court Proceedings and Remand

The district court applied the Third Circuit's prior as-applied framework from United States v. Marzzarella, considering factors such as felony classification, violence, sentencing, cross-jurisdictional consensus, and potential for harm. Most factors favored Range except that most jurisdictions would treat his offense as a felony. The court therefore upheld the firearms restriction.

Range appealed to the United States Court of Appeals for the Third Circuit. While his appeal was pending, the U.S. Supreme Court decided New York State Rifle and Pistol Association v. Bruen (2022). Bruen defined a new two-step test: (1) whether the Second Amendment's plain text covers the conduct and, if so (2) whether the regulation is consistent with historical tradition of firearm regulation.

A Third Circuit panel initially affirmed the denial of Range' application, 69 F.4th 96 (3d Cir. 2023). It concluded that the government had shown a historical tradition justifying disarmament under 18 U.S.C. Section 922(g)(1).

En Banc Reversal, Range II (December 23, 2024)

On rehearing en banc, the Third Circuit reversed and remanded, Range v. Attorney General, United States, 124 F.4th 218 (3rd Cir., 2024). The en banc court held:

Under Bruen step 1, felons, including nonviolent offenders like Range, remain part of “the people” whose gun rights are protected by the Second Amendment. Excluding felons categorically would give legislatures unchecked authority to strip constitutional rights.

Under Bruen step 2, moreover, the government failed to show any historical tradition that supported permanently disarming individuals like Range who had a nonviolent misdemeanor conviction and no history of dangerousness. The analogies that the government offered were too weak or contextually different.

Accordingly, the en banc Third Circuit ruled that 18 U.S.C. Section 922(g)(1), as applied to Range, violated his Second Amendment rights. The court directed that a declaratory judgment be entered in his favor.

Significance and Broader Impact

Range II created a deep split among federal circuits. The Third, Fifth, and Sixth Circuits have allowed as-applied Second Amendment challenges to section 922(g)(1), requiring the government to prove historical justification. In contrast, the Fourth, Eighth, Ninth, and Tenth Circuits have rejected such challenges or held that felons are outside the class of persons protected by the Second Amendment, treating 18 U.S.C. 922(g)(1) as presumptively lawful under District of Columbia v. Heller.

Outcome

In summary, the en banc Third Circuit's decision in Range v. United States, 124 F.4th 218 (2024), held that even nonviolent felons retain their Second Amendment rights unless the government (or, in this case, the Commonwealth of Pennsylvania) can demonstrate a long-standing historical tradition justifying their permanent disarmament. The ruling granted Range declaratory relief. That decision stands as a rare example of a successful as-applied challenge to 18 U.S.C. 922(g)(1).

Takeaways

Range was decided by the United States Court of Appeals for the Third Circuit. In Range, the Third Circuit considered itself bound by the Bruen decision, as pronounced by the United States Supreme Court. New Jersey is in the Third Circuit. Thus, were a similar challenge to be filed in New Jersey, one would expect the result to be the same. Law, however, like life, is not that simple. Appeals from New Jersey denials of applications for an FID card are filed in State court, not federal. Federal decisions such as Range thus constitute persuasive authority, not binding authority. New Jersey state courts, therefore, could interpret Bruen differently than did the Third Circuit. Were that to happen, the United States Supreme Court is the only forum that could force New Jersey to comply with the Second Amendment.

One additional potential hurdle exists: As indicated above, the Third, Fifth, and Sixth Circuits have allowed as-applied Second Amendment challenges to 18 U.S.C. 922(g)(1) in situations such as faced by Mr. Range. In contrast, the Fourth, Eighth, Ninth, and Tenth Circuits hold the other way. This “circuit split” cries out for national uniformity that only the United States Supreme Court can provide. When this issue reaches the United States Supreme Court (which, one way or another it ultimately will), that court will resolve those differing interpretations. Gun Lawyers in New Jersey™ are confident that that court, as presently constituted, will resolve that split by ratifying the principle announced in Range. But no guarantees exist.

Stay tuned!