BRYAN DAVID RANGE, Appellant v. ATTORNEY GENERAL UNITED STATES OF AMERICA; REGINA LOMBARDO, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives
No. 21-2835
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 6, 2023
Argued En Banc on February 15, 2023
2023 Decisions 468
PRECEDENTIAL
Argued before Merits Panel on September 19, 2022
Before: CHAGARES, Chief Judge, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO,
(Filed: June 6, 2023)
William V. Bergstrom
Peter A. Patterson [Argued]
David H. Thompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Michael P. Gottlieb
Vangrossi & Recchuiti
319 Swede Street
Norristown, PA 19401
Counsel for the Appellant
Joseph G. S. Greenlee
Firearms Policy Coalition Action
5550 Painted Mirage Road
Suite 320
Las Vegas, NV 89149
Lisa B. Freeland
Renee Pietropaolo
Eleni Kousoulis
K. Anthony Thomas
Helen A. Marino
Heidi R. Freese
Matthew Campbell
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Amicus Curiae Federal Public & Community Defender Organization of the Third Circuit in Support of Appellant
Brian M. Boynton
Jacqueline C. Romero
Mark B. Stern
Michael S. Raab
Abby C. Wright
Kevin B. Soter [Argued]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for the Appellees
Everytown Law
450 Lexington Avenue
P.O. Box 4148
New York, NY 10017
Counsel for Amicus Curiae Everytown for Gun Safety in Support of Appellees
OPINION OF THE COURT
HARDIMAN, Circuit Judge, with whom CHAGARES, Chief Judge, and JORDAN, GREENAWAY, JR., BIBAS, PORTER, MATEY, PHIPPS, and FREEMAN, Circuit Judges, join.
Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in-possession” law—
A
The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. See
Range was sentenced to three years’ probation, which he completed without incident. He also paid $2,458 in restitution, $288.29 in costs, and a $100 fine. Other than his 1995 conviction, Range’s criminal history is limited to minor traffic and parking infractions and a summary offense for fishing without a license.
When Range pleaded guilty in 1995, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years’ imprisonment. That conviction precludes Range from possessing a firearm because federal law generally makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition.”
In 1998, Range tried to buy a firearm but was rejected by Pennsylvania’s instant background check system. Range’s wife, thinking the rejection a mistake, gifted him a deer-hunting rifle. Years later, Range tried to buy a firearm and was rejected again. After researching the reason for the denial, Range learned he was barred from buying a firearm because of his 1995 conviction. Range then sold his deer-hunting rifle to a firearms dealer.
B
Range sued in the United States District Court for the Eastern District of Pennsylvania, seeking a declaration that
The District Court granted the Government’s motion. Range v. Lombardo, 557 F. Supp. 3d 609, 611 (E.D. Pa. 2021). Faithfully applying our then-controlling precedents, the Court held that Range’s crime was “serious” enough to deprive him of his Second Amendment rights. Id. In doing so, the Court noted the two-step framework we established in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010). Range, 557 F. Supp. 3d at 613. The Court began—and ended—its analysis at the first step. It considered five factors to determine whether Range’s conviction made him an “unvirtuous citizen” of the
The Government conceded that four of the five factors favored Range because he was convicted of a nonviolent, non-dangerous misdemeanor and had not been incarcerated. Id. at 614. But the District Court held the “cross-jurisdictional consensus” factor favored the Government because about 40 jurisdictions would have classified his crime as a felony. Id. at 614–15. Noting that our decisions in Holloway, 948 F.3d at 177, and Folajtar v. Att’y Gen., 980 F.3d 897, 900 (3d Cir. 2020), had rejected as-applied challenges to
While Range’s appeal was pending, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The parties then submitted supplemental briefing on Bruen’s impact. A panel of this Court affirmed the District Court’s summary judgment, holding that the Government had met its burden to show that
Range petitioned for rehearing en banc. We granted the petition and vacated the panel opinion. Range v. Att’y Gen., 56 F.4th 992 (3d Cir. 2022).
II
The District Court had jurisdiction under
III
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms unconnected with militia service. 554 U.S. 570, 583–84 (2008). In view of that right, the Court held unconstitutional a District of Columbia law that banned handguns and required other “firearms in the home be rendered and kept inoperable at all times.” Id. at 630. It reached that conclusion after scrutinizing the text of the Second Amendment and deducing that it “codified a pre-existing right.” Id. at 592. The Heller opinion did not apply intermediate or strict scrutiny. In fact, it did not apply means-end scrutiny at all. But in response to Justice Breyer’s dissent, the Court noted in passing that the challenged law would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628–29.
Bruen rejected the two-step approach as “one step too many.” 142 S. Ct. at 2127. The Supreme Court declared: “Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.” Id. Instead, those cases teach “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. And “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Applying that standard, Bruen held “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” 142 S. Ct. at 2122. But the “where” question decided in Bruen is not at issue here. Range’s appeal instead requires us to examine who is among “the people” protected by the Second Amendment.
IV
Having explained how Bruen abrogated our Second Amendment jurisprudence, we now apply the Supreme Court’s established method to the facts of Range’s case. Both sides agree that we no longer conduct means-end scrutiny. And as the panel wrote: “Bruen’s focus on history and tradition,” means that “Binderup’s multifactored seriousness inquiry no longer applies.” Range, 53 F.4th at 270 n.9.
After Bruen, we must first decide whether the text of the Second Amendment applies to a person and his proposed conduct. 142 S. Ct. at 2134–35. If it does, the government now bears the burden of proof: it “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.
We begin with the threshold question: whether Range is one of “the people” who have Second Amendment rights. The Government contends that the Second Amendment does not apply to Range at all because “[t]he right to bear arms has historically extended to the political community of law-abiding, responsible citizens.” Gov’t En Banc Br. at 2. So Range’s 1995 conviction, the Government insists, removed him from “the people” protected by the Second Amendment.
The Supreme Court referred to “law-abiding citizens” in Heller. In response to Justice Stevens’s dissent, which relied on United States v. Miller, 307 U.S. 174 (1939), the Court reasoned that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. In isolation, this language seems to support the Government’s argument. But Heller said more; it explained that “the people” as used throughout the Constitution “unambiguously refers to all members of the political community, not an unspecified subset.” Id. at 580. So the Second Amendment right, Heller said, presumptively “belongs to all Americans.” Id. at 581. Range cites these statements to argue that “law-abiding citizens” should not be read “as rejecting Heller’s interpretation of ‘the people.’” Range Pet. for Reh’g at 8. We agree with Range for four reasons.
First, the criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases. So their references to “law-abiding, responsible citizens” were dicta. And while we heed that phrase, we are careful not to overread it as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of
Third, as the plurality stated in Binderup: “That individuals with Second Amendment rights may nonetheless be denied possession of a firearm is hardly illogical.” 836 F.3d at 344 (Ambro, J.). That statement tracks then-Judge Barrett’s dissenting opinion in Kanter v. Barr, in which she persuasively explained that “all people have the right to keep and bear arms,” though the legislature may constitutionally “strip certain groups of that right.” 919 F.3d 437, 452 (7th Cir. 2019). We agree with that statement in Binderup and then-Judge Barrett’s reasoning.
Fourth, the phrase “law-abiding, responsible citizens” is as expansive as it is vague. Who are “law-abiding” citizens in this context? Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No. We are confident that the Supreme Court’s references to “law-abiding, responsible citizens” do not mean that every American who gets a traffic ticket is no longer among “the people” protected by the Second Amendment. Perhaps, then, the category refers only to those who commit “real crimes” like felonies or felony-equivalents? At English common law, felonies were so serious they were punishable by estate forfeiture and even death. 4 William Blackstone, Commentaries on the Laws of England 54 (1769). But today, felonies include a wide swath of crimes, some of
At root, the Government’s claim that only “law-abiding, responsible citizens” are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from “the people.” We reject that approach because such “extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” Folajtar, 980 F.3d at 912 (Bibas, J., dissenting). And that deference would contravene Heller’s reasoning that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 554 U.S. at 636; see also Bruen, 142 S. Ct. at 2131 (warning against “judicial deference to legislative interest balancing”).
Having determined that Range is one of “the people,” we turn to the easy question: whether
B
Because Range and his proposed conduct are protected by the Second Amendment, we now ask whether the Government can strip him of his right to keep and bear arms. To answer that question, we must determine whether the Government has justified applying
To preclude Range from possessing firearms, the Government must show that
In attempting to carry its burden, the Government relies on the Supreme Court’s statement in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. A plurality of the Court reiterated that point in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010). And in his concurring opinion in Bruen, Justice Kavanaugh, joined by the Chief Justice, wrote that felon-possession prohibitions are “presumptively lawful” under Heller and McDonald. 142 S. Ct. at 2162 (quoting Heller, 554 U.S. at 626–27 & n.26).7 Section 922(g)(1) is a straightforward “prohibition[] on the possession of firearms by felons.” Heller, 554 U.S. at 626. And since 1961 “federal law has generally prohibited individuals convicted of crimes punishable by more than one year of
Even if the 1938 Act were “longstanding” enough to warrant Heller’s assurance—a dubious proposition given the Bruen Court’s emphasis on Founding- and Reconstruction-era sources, 142 S. Ct. at 2136, 2150—Range would not have been a prohibited person under that law. Whatever timeframe the Supreme Court might establish in a future case, we are confident that a law passed in 1961—some 170 years after the Second Amendment’s ratification and nearly a century after the Fourteenth Amendment’s ratification—falls well short of “longstanding” for purposes of demarcating the scope of a constitutional right. So the 1961 iteration of
The Government’s attempt to identify older historical analogues also fails.9 The Government argues that “legislatures traditionally used status-based restrictions” to disarm certain groups of people. Gov’t En Banc Br. at 4 (quoting Range, 53 F.4th at 282). Apart from the fact that those restrictions based
The Government also points out that “founding-era felons were exposed to far more severe consequences than disarmament.” Gov’t En Banc Br. at 4. It is true that “founding-era practice” was to punish some “felony offenses with death.” Id. at 9. For example, the First Congress made forging or counterfeiting a public security punishable by death. See
Yet the Government’s attempts to analogize those early laws to Range’s situation fall short. That Founding-era governments punished some nonviolent crimes with death does not suggest that the particular (and distinct) punishment at issue—lifetime disarmament—is rooted in our Nation’s history and tradition. The greater does not necessarily include the lesser: founding-era governments’ execution of some
Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator’s right to keep and bear arms generally. See, e.g., Act of Dec. 21, 1771, ch. 540, N.J. Laws 343–344 (“An Act for the Preservation of Deer, and other Game, and to prevent trespassing with Guns”); Act of Apr. 20, 1745, ch. 3, N.C. Laws 69–70 (“An Act to prevent killing deer at unseasonable times, and for putting a stop to many abuses committed by white persons, under pretence of hunting”). Range’s crime, however—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (except where forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used
Finally, the Government makes an argument from authority. It points to a decision from a sister circuit court that “look[ed] to tradition and history” in deciding that “those convicted of felonies are not among those entitled to possess arms.” Gov’t En Banc Br. at 4 (quoting Medina v. Whitaker, 913 F.3d 152, 157–61 (D.C. Cir. 2019)). The Government also cites appellate decisions that “have categorically upheld felon-possession prohibitions without relying on means-end scrutiny.” Id. (citing United States v. Scroggins, 599 F.3d 433, 451 (5th Cir. 2010); United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (per curiam); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009)). And it cites the more than 80 district court decisions that have addressed
As impressive as these authorities may seem at first blush, they fail to persuade. First, the circuit court opinions were all decided before Bruen. Second, the district courts are bound to follow their circuits’ precedent. Third, the Government’s
For the reasons stated, we hold that the Government has not shown that the Nation’s historical tradition of firearms regulation supports depriving Range of his Second Amendment right to possess a firearm. See Bruen, 142 S. Ct. at 2126.
* * *
Our decision today is a narrow one. Bryan Range challenged the constitutionality of
I join the majority opinion in full. I write separately to highlight one reason why there are no examples of founding, antebellum, or Reconstruction-era federal laws like
Until well into the twentieth century, it was settled that Congress lacked the power to abridge anyone’s right to keep and bear arms. The right declared in the Second Amendment was important, but cumulative. The people’s first line of defense was the reservation of a power from the national government.1 As James Wilson explained, “A bill of rights annexed to a constitution is an enumeration of the powers reserved.” James Wilson, Remarks in the Pennsylvania Convention to Ratify the Constitution of the United States (Nov. 28, 1787), reprinted in 1 Collected Works of James Wilson 195 (Liberty Fund ed., 2007).
Even without the Second Amendment, the combination of enumerated powers and the Ninth and Tenth Amendments ensured that Congress could not permanently disarm anyone.
A founding-era source is illustrative. In his influential constitutional law treatise, William Rawle, a Federalist, grounded the people’s right to keep and bear arms in Congress’s lack of delegated power. He described the Second Amendment as a backstop to prevent the pursuit of “inordinate power.”
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
William Rawle, A View of the Constitution of the United States of America 125–26 (2d ed. 1829).
At oral argument, counsel for the government hypothesized that the paucity of early American criminal laws resulting in disarmament may be explained by a lack of political demand. That’s implausible. As Judge Krause’s
A New Deal Era attempt at federal gun control is revealing. In 1934, the Roosevelt Administration proposed the National Firearms Act to address the gangster-style violence of the Prohibition Era by reducing the sale of automatic weapons and machine guns. Stymied by the federal government’s lack of police power, Attorney General Homer Cummings urged Congress to regulate guns indirectly through its enumerated taxing power. Nicholas J. Johnson, The Power Side of the Second Amendment Question: Limited, Enumerated Powers and the Continuing Battle Over the Legitimacy of the Individual Right to Arms, 70 Hastings L. J. 717, 750–58 (2019). Congress accepted that suggestion, avoiding the acknowledged constitutional problem by imposing a tax—rather than a direct prohibition—on the making and transfer of particular firearms. See National Firearms Act, ch. 757, Pub. L. No. 73–474, 48 Stat. 1236 (1934) (current version at
The landscape changed in 1937, when the Supreme Court adopted an expansive conception of the Commerce Clause. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Newly empowered, Congress promptly enacted the Federal Firearms Act of 1938. For the first time, that law disarmed felons convicted of a “crime of violence,” which the Act defined as “murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by more than one year.” Federal Firearms Act, Pub. L. No. 75–785, 52
As the majority opinion makes plain, these modern laws have no longstanding analogue in our national history and tradition of firearm regulation.2 Maj. Op. 15–22. That’s unsurprising because before the New Deal Revolution, Congress was powerless to regulate gun possession and use. See United States v. Cruikshank, 92 U.S. 542, 553 (1875) (Congress lacks power to infringe the right declared by the Second Amendment); Presser v. People of State of Ill. 116 U.S. 252, 265 (1886) (same).
Lacking any relevant historical federal data, we may look to state statutes and cases for contemporaneous clues about the people’s right to keep and bear arms.3 By 1803, seven of the seventeen states protected gun possession and use in their own declarations of rights. Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 208–11 (2006). And by 1868, twenty-two of thirty-seven states protected the right in their state constitutions. Id. The history and tradition of firearm regulation in those states
But precisely because the states—unlike the national government—retained sweeping police powers and weren’t originally constrained by the Bill of Rights, they were free to regulate the possession and use of weapons in whatever ways they thought appropriate (subject to state constitutional restrictions that were not uniform). See Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Because of that important difference, it’s unclear what many early state laws prove about the contours of the Second Amendment right.
For example, Judge Krause’s dissent cites founding or antebellum-era disarmament laws from Delaware, Maryland, New Jersey, New York, and Virginia. Krause Dissent at 15-21, 26-28 & nn. 94-96, 98. But Maryland, New Jersey, and New York have never enumerated a Second Amendment analogue. Volokh, supra, at 205. Delaware and Virginia did not do so until 1987 and 1971, respectively. Id. at 194, 204. So those states’ laws provide little insight about the scope of the Second Amendment right.
After McDonald v. City of Chicago, 561 U.S. 742 (2010), state gun laws are subject to the Second Amendment because it is incorporated through the Fourteenth Amendment.
Using state laws indiscriminately to determine the scope of the constitutional right seems incongruous in this context. It seeks effectively to reverse incorporate state law into federal constitutional law. In Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court held that Fourteenth Amendment equal-protection principles applicable to the states also bind the federal government through the Fifth Amendment’s Due Process Clause because the alternative would be “unthinkable.” Id. at 500; but see United States v. Vaello Madero, 142 S. Ct. 1539, 1544–47 (2022) (Thomas, J., concurring) (criticizing Bolling’s rationale). Here, there is no textual basis plausibly supporting reverse incorporation. And Bolling’s rule appears to be cabined to equal-protection claims; the Court has only invoked reverse incorporation to redress invidious discrimination. Without an equal-protection or due process hook, using state law to define a federal constitutional amendment that was fashioned to protect individual rights and a reserved power poses a doctrinal conundrum.
A conception of the Second Amendment right that retcons modern commerce power into early American state law is anachronistic and flunks Bruen’s history-and-tradition test. Setting the federal floor through a combination of antebellum state police power and Congress’s post-New Deal commerce
Bryan Range decades ago made a false statement to obtain food stamps to feed his family. That untrue statement, however, was a misdemeanor in violation of Pennsylvania law. See
I agree with the well-crafted majority opinion of Judge Hardiman that Range is among “the people” protected by the Second Amendment and that the law is unconstitutional as applied to him. I write separately, however, to explain why the Government’s failure to carry its burden in this case does not spell doom for
Congress may disarm felons because, as Justice Scalia explained in Heller, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” 554 U.S. at 626. He demonstrated this is so by listing “presumptively lawful” regulations that the ruling should not “be taken to cast doubt on.” Id. at 626–27 & n.26. That list included “longstanding prohibitions on the possession of firearms by felons.” Id. at 626–27. Just two years later, in McDonald v. City of Chicago, the Supreme Court incorporated the Second Amendment against the states. 561 U.S. 742, 767–68 (2010). In doing so, it assured the public that “incorporation does not imperil every law regulating firearms.” Id. at 786. Thus, it stood by its statement “in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons.’” Id. (quoting Heller, 554 U.S. at 626–27). See also United States v. Jackson, No. 22-2870, --- F.4th ----, 2023 WL 3769242, at *4 (8th Cir. June 2, 2023) (observing the Supreme Court has provided assurances that felon-in-possession laws are constitutional).
In United States v. Barton, we held that “Heller’s list of ‘presumptively lawful’ regulations is not dicta.” 633 F.3d 168, 171 (3d Cir. 2011). That aligned us with the Ninth and Eleventh Circuits. Id. (citing United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010), and United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir. 2010)). And every other circuit
New York State Rifle & Pistol Ass’n v. Bruen reaffirms that felon-in-possession laws are presumed to be lawful. 142 S. Ct. 2111 (2022). Although that case had nothing to do with those laws, three of the six Justices in the majority went out of their way to signal that view. Justice Kavanaugh’s concurrence, joined by Chief Justice Roberts, explained that, “[p]roperly interpreted, the Second Amendment allows a ‘variety’ of gun regulations” before quoting the Heller excerpt that casts prohibitions on the possession of firearms by felons as presumptively lawful. Id. at 2162 (quoting Heller, 554 U.S. at 626–27 & n.26). Justice Alito’s concurrence also explained that the Court’s opinion has not “disturbed anything that we said in Heller or McDonald about restrictions that may be imposed on the possession or carrying of guns.” Id. at 2157 (citation omitted).
Of course, we are here for a reason. Bruen abrogated the circuit courts’ use of means-end analysis and replaced it with a history-driven test:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition
may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Id. at 2126. In the wake of Bruen, assessing a gun restriction by balancing a government’s interest (safety of citizens) with the burden imposed on an individual’s right to bear arms is out. Instead, laws that burden Second Amendment rights must have “a well-established and representative historical analogue, not a historical twin.” Id. at 2133 (emphases in original). So we must use “analogical reasoning” to determine whether
Given that three Justices in Bruen’s majority opinion reminded us that felon-in-possession laws remain presumptively lawful, and the three dissenting Justices echoed that view, id. at 2189 (Breyer, J., dissenting) (“Like Justice Kavanaugh, I understand the Court’s opinion today to cast no doubt on that aspect of Heller’s holding.”), a sound basis exists for
We begin with a look to firearm regulation in the era of the Second Amendment’s ratification. In England, non-Anglican Protestants and Catholics were disarmed during times of tumult. See Range v. Att’y Gen., 53 F.4th 262, 274–76 (3d Cir. 2022), reh’g en banc granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023). The American colonies also disarmed religious dissenters. See id. at 276–77. And in the Revolutionary War period, British loyalists and those who refused to take loyalty oaths were disarmed by several colonies. See id. at 277–79. See also Jackson, 2023 WL 3769242, at *5.
True, those laws are, by today’s standards, unconstitutional on non-Second Amendment grounds. But at our Founding they were measures driven by the fear of those who, the political majority believed, would threaten the orderly functioning of society if they were armed. From this perspective, it makes sense that
Of course, the relevant period may extend beyond the Founding era. Indeed, the Supreme Court has not yet decided whether individual rights are defined by their public understanding at the time of the ratification of the Bill of Rights
Certain regulations contemporaneous with the Fourteenth Amendment’s ratification reaffirm the familiar desire to keep arms from those perceived to threaten the orderly functioning of society. A slew of states prohibited “tramps” from carrying firearms or dangerous weapons.3 Kansas barred those “not engaged in any legitimate business, any person under the influence of intoxicating drink, and any person who has ever borne arms against the government of the United
But presumptions aren’t rules—they can be rebutted. And so it may be that an individual subject to
Range committed a small-time offense. He did so with a pen to receive food stamps for his family. There is nothing that suggests he is a threat to society. He therefore stands apart from most other individuals subject to
I close with the observation that the Supreme Court will have to square its history-driven test with its concurrent view that felon gun restrictions are presumptively lawful. Scholars have scrambled to find historical roots for that presumption. See, e.g., Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371, 1386 (2008) (originalist analysis
This opinion is one attempt to offer a historical justification for
Today, the Majority of our Court has decided that an individual convicted of fraud cannot be barred from possessing a firearm. While my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional. Because the Supreme Court has made clear that such bans are presumptively lawful, and there is a historical basis for such bans, I respectfully dissent.1
In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court set forth a history-based framework for deciding whether a firearm regulation is constitutional under the Second Amendment. Courts must now examine whether the “regulation [being reviewed] is part of the historical tradition that delimits the outer boundaries of the right to keep and bear arms.” Id. at 2127. To make this determination, a court must decide whether the challenger or conduct at issue is protected by the Second Amendment and, if so, whether the Government has presented sufficient historical analogues to justify the restriction. See id. at 2129–30.
Second, the Majority incorrectly discounts the importance of the Supreme Court‘s emphasis on law-abidingness as a limitation on the Second Amendment right. While the Majority dismisses this language as “dicta,” Maj. Op. at 11, the Bruen Court‘s use of the phrase fourteen times highlights the significance that this criterion played in its decision, Bruen, 142 S. Ct. at 2122, 2125, 2131, 2133-34, 2135 n.8, 2138 n.9, 2150, 2156; see also Jackson, 2023 WL 3769242, at *6 (noting Bruen‘s repeated statements about a law-abider‘s right to possess arms). Indeed, the Bruen court approved of certain gun regulations that included criminal background checks. Bruen, 142 S. Ct. at 2138 n. 9. While the Majority says that the phrase “law abiding” is “expansive” and “vague,” Maj. Op. at 13, there is no question that one who has a felony or felony-equivalent conviction is not law abiding. Thus, the Supreme Court‘s jurisprudence tells us that the right to bear arms is limited to law abiders, and that felon bans are presumptively lawful.
Third, the Majority acknowledges but then disregards important aspects of Bruen. The Bruen Court emphasized that its test should not be a “regulatory straightjacket [sic]” and that courts should look for a “historical analogue” to the challenged regulation, not a “historical twin.” 142 S. Ct. at 2133. Despite these instructions, the Majority demands a historical twin by requiring the Government to identify a historical crime, including its punishment, that mirrors Bryan Range‘s conviction. At the founding, the fraud-based crime of the type Range committed was considered a capital offense, which
The Majority also rejects the Government‘s analogy to now unconstitutional status-based bans on Native Americans, Blacks, Catholics, Quakers, loyalists, and others because Range is not “part of a similar group today.” Maj. Op. at 19. Whether Range is a member of one of these groups is
Finally, the Majority‘s approach will have far-reaching consequences. Although the Majority states that its holding is “narrow” because it is limited to Range‘s individual circumstances, Maj. Op. at 22, the only individual circumstance the Majority identifies is that the penalty Range faced differs from the penalty imposed at the founding. As discussed above, that fact is irrelevant under Bruen. Thus, the ruling is not cabined in any way and, in fact, rejects all historical support for disarming any felon.5 As a result, the Majority‘s analytical framework leads to only one conclusion:
This is a broad ruling and, to me, is contrary to both the sentiments of the Supreme Court and our history.
I therefore respectfully dissent.
As Americans, we hold dear the values of individual liberty and freedom from tyranny that galvanized our Founders and are enshrined in the Constitution. So it is not surprising that we often look to history and tradition to inform our constitutional interpretation.1 But as Alexis de Tocqueville rightly observed of “the philosophical method of the Americans,” we “accept tradition only as a means of information, and existing facts only as a lesson to be used in . . . doing better.”2 Thus, when we draw on parallels with the past to assess what is permissible in the present, we typically look to match history in principle, not with precision.
When it comes to permissible regulation of the right to bear arms, it might make good sense to hew precisely to history and tradition in a world where “arms” still meant muskets and
As debates rage on about the causes of this crisis and the solutions, the people‘s elected representatives bear the heavy responsibility of enacting legislation that preserves the right to armed self-defense while ensuring public safety. Although they face evolving challenges in pursuing those twin aims, striking that delicate balance has long been a core function of the legislature in our system of separated powers,7 and legislatures’ authority to disarm those who cannot be trusted to follow the laws has long been crucial to that endeavor.
Section 922(g)(1) of the U.S. Code, Title 18, embodies this delicate equilibrium and comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms. As Justice Alito has observed,
Yet today‘s majority brushes aside these realities and the seismic effect of its ruling. It is telling that, although it describes itself as limited “to Range‘s situation,”13 today‘s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented. It is also telling that it tracks precisely the Fifth Circuit‘s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.14 And in the process, the majority creates a circuit split with the Eighth Circuit‘s recent opinion in United States v. Jackson, which rejected the notion of “felony-by-felony litigation” and recognized that “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”15
In short, for all its assurances to the contrary and its lulling simplicity, the majority opinion commits our Court to a
I write here to clarify three points16: First, the historical record demonstrates that, contrary to the majority opinion, legislatures have historically possessed the authority to disarm entire groups, like felons, whose conduct evinces disrespect for the rule of law. Second, the doctrinal and practical ramifications of the majority‘s approach, which my colleagues do not even acknowledge, let alone address, are profound and pernicious. Third, in order to hold
I. The Historical Validity of § 922(g)(1)
We begin our historical inquiry with the benefit of more than a decade of Supreme Court precedent that illuminates the Court‘s understanding of traditional firearm regulations. In Bruen, the majority characterized the holders of Second
In Bruen, the Supreme Court clarified who qualifies as a “law-abiding” citizen when it explained that, despite the infirmity of New York‘s may-issue open-carry licensing regime, “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes . . . [,] which often require applicants to undergo a [criminal] background check” and “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.‘”23
Thus, time and again, the Supreme Court has acknowledged that the deep roots of felon-possession bans in American history impart a presumption of lawfulness to
As the Supreme Court has not performed an “exhaustive historical analysis” of the felon-possession ban, much less “the full scope of the Second Amendment,”31 we must conduct that review to determine whether
For purposes of this inquiry, “not all history is created equal.”32 As the right to keep and bear arms was a ”pre-existing right,” we must consider “English history dating from the late 1600s, along with American colonial views leading up to the founding.”33 Post-ratification practices from the late eighteenth and early nineteenth centuries are also highly relevant, while later nineteenth century history is less informative.34 If we heed the Supreme Court‘s admonition to analogize to historical regulations, but not to require a “historical twin,”35 these
A. England‘s Restoration and Glorious Revolution
During the late seventeenth century, the English government repeatedly disarmed individuals whose conduct indicated that they could not be trusted to abide by the sovereign and its dictates.
Following the tumult of the English Civil War, the restored Stuart monarchs disarmed nonconformist (i.e., non-Anglican) Protestants.36 Of course, not all nonconformists were dangerous; to the contrary, many belonged to pacifist denominations like the Quakers.37 However, they refused to participate in the Church of England, an institution headed by the King as a matter of English law.38 And nonconformists
Protestants had their rights restored after the Glorious Revolution of 1688 replaced the Catholic King James II with William of Orange and Mary, James‘s Protestant daughter.41 But even then, Parliament enacted the English Bill of Rights, which declared: “Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.”42 This “predecessor to our Second Amendment”43 reveals that the legislature—Parliament—was
In 1689, the pendulum of distrust swung the other way. Parliament enacted a statute prohibiting Catholics who refused to take an oath renouncing the tenets of their faith from owning firearms, except as necessary for self-defense.45 As with nonconformists, this prohibition was not based on the notion that every single Catholic was dangerous. Rather, the categorical argument English Protestants made against Catholicism at the time was that Catholics’ faith put the dictates of a “foreign power,” namely the Vatican, before English law.46 Official Anglican doctrine—regularly preached throughout England—warned that the Pope taught “that they that are under him are free from all burdens and charges of the commonwealth, and obedience toward their prince[.]”47
Accordingly, the disarmament of Catholics in 1689 reflects Protestant fears that Catholics could not be trusted to obey the law.
That restriction could be lifted only prospectively and on an individual basis. That is, Parliament permitted Catholics who “repeated and subscribed” to the necessary oath before “any two or more Justices of the Peace” to resume keeping arms.48 Disavowal of religious tenets hardly demonstrated that the swearing individual no longer had the capacity to commit violence; rather, the oath was a gesture of allegiance to the English government and an assurance of conformity to its laws. The status-based disarmament of Catholics thus again evinces the “historical understanding”49 that legislatures could categorically disarm a group they viewed as unwilling to obey the law.
B. Colonial America
The English notion that the government could disarm those not considered law-abiding traveled to the American colonies. Although some of the earliest firearm laws in colonial America forbid Native Americans and Black persons
The Virginia Company carried out one of the earliest recorded disarmaments in the American colonies in 1624. For his “opprobrious” and “base and detracting speeches concerning the Governor,” the Virginia Council ordered Richard Barnes “disarmed” and “banished” from Jamestown.52
During the late 1630s, a Boston preacher named Anne Hutchinson challenged the Massachusetts Bay government‘s authority over spiritual matters by advocating for direct, personal relationships with the divine.53 Governor John Winthrop accused Hutchinson and her followers of being Antinomians—those who viewed their salvation as exempting them from the law—and banished her.54 The colonial government also disarmed at least fifty-eight of Hutchinson‘s supporters, not because those supporters had demonstrated a propensity for violence, but rather “to embarrass the offenders” who were forced to personally deliver their arms to the authorities in an act of public submission.55 The Massachusetts authorities therefore disarmed Hutchinson‘s supporters to shame those colonists because the authorities concluded their conduct evinced a willingness to disobey the law.56 Again,
Like the Stuart monarchs in England, the Anglican colony of Virginia disarmed nonconformist Protestants in the 1640s due to their rejection of the King‘s sovereign power over religion. When a group of nonconformist Puritans from Massachusetts resettled in southeastern Virginia,58 Virginia Governor William Berkeley “acted quickly to silence the Puritan[s].”59 His concern with any “[o]pposition to the
After the Glorious Revolution, the American colonies also followed England in disarming their Catholic residents. Just three years after designating Anglicanism as the colony‘s official religion,62 Governor Benjamin Fletcher of New York disarmed Catholic colonists in 1696.63 The colonies redoubled their disarmament of Catholics during the Seven Years’ War of 1756–1763.64 Maryland, for example, though founded as a haven for persecuted English Catholics,65 confiscated firearms from its Catholic residents during the war.66 Notably, that decision was not in response to violence; indeed, the colony‘s
Catholics were not the only group of colonists disarmed during the Seven Years’ War. New Jersey confiscated firearms from Moravians, a group of nonconformist Protestants from modern-day Germany.69 Like the Quakers, Moravians were—as they are today—committed pacifists who owned weapons for hunting instead of fighting.70 Regardless, New Jersey Governor Jonathan Belcher deemed their nonconformist views sufficient evidence that they could not be trusted to obey royal authority, so he ordered their disarmament.71
As the colonies became independent states, legislatures continued to disarm individuals whose status indicated that they could not be trusted to obey the law. John Locke—a philosopher who profoundly influenced the American revolutionaries72—argued that the replacement of individual judgments of what behavior is acceptable with communal norms is an essential characteristic of the social contract.73 Members of a social compact, he explained, therefore have a civic obligation to comply with communal judgments regarding proper behavior.74
Drawing on Locke, state legislatures conditioned their citizens’ ability to keep arms on compliance with that civic
Pennsylvania also disarmed entire groups whose status suggested they could not be trusted to abide by the law. In 1777, the legislature enacted a statute requiring all white male inhabitants above the age of eighteen to swear to “be faithful and bear true allegiance to the commonwealth of Pennsylvania as a free and independent state,”82 and providing that those who failed to take the oath “shall be disarmed” by the local
D. Ratification Debates
The Founding generation reiterated the longstanding principle that legislatures could disarm non-law-abiding citizens during the deliberations over whether to ratify the Constitution.
Debates between the Federalists and Anti-Federalists in Pennsylvania “were among the most influential and widely distributed of any essays published during ratification.”89 Those essays included “The Dissent of the Minority,” a statement of the Anti-Federalist delegates’ views90 that proved
[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.92
While this amendment was not adopted, it is important because, read in the context of traditional Anglo-American firearm laws, it reflects the understanding of the Founding generation—particularly among those who favored enshrining
E. Criminal Punishment
The penalties meted out for a variety of offenses between the seventeenth and nineteenth centuries also demonstrate the widespread acceptance of legislatures’ authority to disarm felons.
At the Founding, a conviction for a serious crime resulted in the permanent loss of the offender‘s ability to keep and bear arms. Those who committed grave felonies—both violent and non-violent—were executed.93 A fortiori, the ubiquity of the death penalty94 suggests that the Founding generation would have had no objection to imposing on felons the comparatively lenient penalty of disarmament. Indeed, under English law, executed felons traditionally forfeited all their firearms, as well as the rest of their estate, to the government.95 That practice persisted in the American colonies and the Early Republic.96 Even some non-capital
Individuals who committed less serious crimes also lost their firearms on a temporary, if not permanent, basis. Where state legislatures stipulated that certain offenses were not
Finally, colonial and state legislatures punished minor infractions with partial disarmaments by seizing firearms involved in those offenses. For example, individuals who hunted in certain prohibited areas had to forfeit any weapons used in the course of that violation.100
* * *
As this survey reflects, and as the Supreme Court observed in Heller, restrictions on the ability of felons to possess firearms are indeed “longstanding[.]”101 Four centuries of Anglo-American history demonstrate that legislatures repeatedly exercised their discretion to impose “status-based restrictions” disarming entire “categories of persons,” who were presumed, based on past conduct,
The length of disarmaments varied too, but the Founding generation recognized that legislatures—in their discretion—could impose permanent, temporary, or indefinite bans that lasted until the individual affirmatively sought relief and made a showing of commitment to abide by the law. In that case, the showing was not viewed as voiding the ban retroactively, from its inception; rather, it operated prospectively. Only after the individual had made the requisite showing to a government official—and thus rebutted the presumption that those with his status were not law-abiding—was the individual‘s right to possess firearms restored.
That is precisely how
II. Consequences of the Majority Opinion
Instead of respecting legislatures’ longstanding authority to disarm groups who pose a threat to the rule of law, the majority usurps that function and enacts its own policy. And instead of heeding the Supreme Court‘s instruction to take
My colleagues have adopted and prescribed a methodology by which courts must examine each historical practice in isolation and reject it if it deviates in any respect from the contemporary regulation: Confronted with legislatures’ regular practice at the Founding of imposing the far more severe penalty of death for even non-violent felonies, the majority responds that the permanent loss of all rights is not analogous to “the particular . . . punishment at issue—lifetime disarmament[.]”108 To the longstanding practice of forfeiture, which resulted in a permanent loss of firearms for those felons convicted of capital offenses or sentenced to life
The Supreme Court in Bruen specifically admonished the judiciary not to place “a regulatory straightjacket” on our
While the majority opinion spurns this instruction from Bruen and the Eighth Circuit‘s conclusion that
For all their quibbling, though, neither today‘s majority nor the Fifth Circuit explain why those differences suggest the Founding generation would have considered
By confining permissible firearm regulations to the precise measures employed at the Founding, the majority displaces a complex array of interlocking statutes that embody the considered judgments of elected representatives at the federal
In addition to eviscerating the federal disarmament statute, the vague test adopted by the majority impugns the constitutional application of every state statute that prohibits felons from possessing guns. Those laws differ significantly across the forty-eight states that restrict offenders’ firearm rights—including which offenses trigger restrictions as well as their duration—in keeping with each state‘s local circumstances and values.124 But, under the Supremacy Clause, the majority‘s
Similarly, out of respect for federalism, Congress exempted from the federal felon-possession ban any offender whose conviction “has been expunged,” who “has been pardoned,” or who has had his “civil rights restored.”125 In every single state, the governor or pardon board is authorized to issue a pardon, automatically restoring an offender‘s firearm rights.126 Thirty-six states also offer additional gun rights restoration mechanisms127—from automatic restoration after a set term of years,128 to individualized judicial expungement proceedings.129 The divergent “state policy judgments” codified
In place of legislatures’ measured judgments, the majority imposes a constitutional framework so standardless as to thwart the lawful application of
So what exactly is this new test? What specifically is it about Range that exempts him—and going forward, those “like [him]“—from
If it is that Range‘s offense was not “violent,” that standard is unworkable and leads to perverse results. Federal courts’ prior attempts to define “violent felony,” e.g., for purposes of the Armed Career Criminal Act, yielded “repeated attempts and repeated failures to craft a principled and objective standard [for that term,] confirm[ing] its hopeless indeterminacy.”135 Accordingly, the Supreme Court in Johnson v. United States held that the “violent felony” provision “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges,” thus violating due process.136 So does the “like Range” test relegate us to the widely disparaged “categorical
If it is that Range‘s largely law-abiding life in the nearly 30 years since his conviction, that standard is even more confounding. My colleagues hold that Range‘s disarmament was invalid ab initio, meaning he could have prevailed on a Second Amendment challenge to
This retrospective mode of analysis defies not just logic, but also the Due Process Clause. Due process guarantees that a “person of ordinary intelligence [must have] a reasonable opportunity to know what is prohibited, so he may act accordingly.”141 Under the majority‘s “like Range” test, however, offenders cannot possibly know in advance of a court‘s retroactive declaration whether possessing a firearm post-conviction is a constitutional entitlement or a federal felony. As interpreted today by the majority,
On the enforcement side, the majority opinion makes the statute‘s mens rea impossible to establish. In Rehaif, the Supreme Court held that to convict a defendant under
But, today, the majority displaces Rehaif‘s clear and ascertainable standard with an incoherent one: the Government must prove the defendant knew he was not “like Range” when he possessed firearms. And in lieu of Greer‘s high threshold for plain-error relief, the majority hands defendants a ready-made argument for appeal: that they could not know at the time they possessed a firearm—indeed, at any time before a court made a “like Range” determination—whether their status was subject to or exempt from
Today‘s decision will also undermine law enforcement in three critical respects. First, it will cripple the FBI‘s National Instant Criminal Background Check System (NICS). Currently, NICS includes over five million felony conviction records,146 and that number continues to grow as additional agencies contribute records to the NICS database.147 Prior felony convictions are by far the most common reason individuals fail NICS background checks148—the very background checks the Supreme Court endorsed in Bruen as ensuring individuals bearing firearms are “law-abiding” citizens.149 Yet the majority‘s indeterminant and post-hoc test for which felons fall outside
If the police receive a tip that an ex-offender is toting an assault rifle, it is no longer sufficient for probable cause to simply confirm a prior felony conviction in NICS. How will officers—or prosecutors for that matter—know whether that felon is sufficiently “like Range” to justify his arrest as a felon
Second, without a functional background check system, how will federal firearms licensees (FFLs) comply with federal law? FFLs who discover that a potential customer was convicted of a felony will have no way of knowing whether the individual‘s crime and post-conviction conduct are sufficiently similar to Range‘s to preclude the application of
Third, until today, the prohibition on possessing a firearm was a well-accepted “standard condition” of bail,
In sum, the majority opinion casts aside the admonitions that
III. The Narrow Road Not Taken
My colleagues object that
First, the only question the Court had to answer is whether
Second, providing prospective declaratory relief in this case and similar as-applied challenges would resolve my colleagues’ permanency concern. I appreciate that their opposition to imposing a permanent ban or putting the onus on the offender to seek relief finds some historical support for certain lesser offenses. That is, the subset of felons who were not sentenced to death or lifetime imprisonment only forfeited their firearms temporarily and did not need to petition to regain their firearm rights; they could simply repurchase arms after completing their sentences. But times have changed. Gone are the days of “close-knit” communities in which “everyone knew everyone else,”160 and with the extreme mobility and relative
Section 922(g)(1) is sufficiently analogous to that model to meet the history-and-tradition test, as it already allows felons to petition for relief by seeking an expungement, pardon, or restoration of rights under state law. True, Congress provided another avenue for relief in
Third, such declaratory judgment proceedings would give effect to the purportedly rebuttable presumption to which the Supreme Court referred in describing felon-possession bans as “presumptively lawful,”164 as well as its admonition that the Government bears the burden at the outset to “demonstrate that the regulation is consistent with this
Fourth, limiting relief in as-applied
Fifth, this use of declaratory judgments would respect both the separation of powers and federalism. Other than for felons who received favorable declaratory judgments, Congress‘s decision to disarm those who commit felonies or comparable state misdemeanors would remain intact. Likewise, state statutes restricting the ability of felons to possess firearms would be generally enforceable, ensuring local communities’ priorities continue to shape when felons are permitted to possess firearms under state law. The states’ rights-restoration regimes would also continue to perform an important function, serving as alternatives to federal declaratory judgments.
Finally, prospective relief would avoid the debilitating effect of today‘s decision on law enforcement, U.S. Attorney‘s Offices, and our background check system. Currently, those previously convicted of a felony can submit documentation to the FBI through a voluntary appeal file application, including “information regarding an expungement, restoration of firearm rights, pardon, etc.”168 Successful applicants receive a unique personal identification number to prevent future background check denials.169 A felon who secures a prospective
The majority has taken a far more radical approach, creating a stark circuit split and holding
IV. Conclusion
For the foregoing reasons, I respectfully dissent.
Bryan Range v. Attorney General United States of America
ROTH, Circuit Judge, dissenting
In Bruen, the Supreme Court considered whether a regulation issued by a state government was a facially constitutional exercise of its traditional police power. Range presents a distinguishable question: Whether a federal statute, which the Supreme Court has upheld as a valid exercise of Congress‘s authority under the Commerce Clause,2 is constitutional as applied to him. The parties and the Majority conflate these spheres of authority and fail to address binding precedents affirming Congress‘s power to regulate the possession of firearms in interstate commerce. Because Range lacks standing under the applicable Commerce Clause jurisprudence, I respectfully dissent.
I.
As the Majority explains, the Supreme Court in Bruen invalidated the means-end component test that we have, in
While I agree with the Majority‘s assessment of the government‘s burden, I read Bruen to articulate a structured framework for the government‘s comparative analysis. This framework is useful because it clarifies both what the government must compare and how close the match must be.
As I read Bruen, the government must begin by identifying the societal problem addressed by the challenged regulation.5 The government must demonstrate whether the problem is (1) persistent (“has persisted since the 18th century“) or (2) modern (involves “unprecedented societal concerns or dramatic technological changes“).6
If the problem is persistent, the government must demonstrate that its modern regulation is “distinctly similar” to a historical forebear, showing that early and recent legislatures approached the problem in basically the same way.7 Here, “lack of a distinctly similar historical regulation addressing that problem” or evidence that “earlier generations addressed
In contrast, for modern problems that early legislatures did not confront, Bruen allows for a more extended comparison. Here, the government must show by analogical reasoning that its regulation is “relevantly similar” to a historical firearm regulation.9 Under this prong, the government must show that the “modern and historical regulations impose a comparable burden on the right of armed self-defense and . . . that the burden is comparably justified.”10 In other words, the government need not identify a “historical twin,” but only show that the regulations are aligned as to ”how and why [they] burden a law-abiding citizen‘s right to armed self-defense.”11
II.
This framework helps to illuminate my substantive disagreement with the Majority opinion, which begins with its characterization of the societal problem addressed by
The Supreme Court reached this exact conclusion in analyzing
The Majority concludes, and I agree, that Bruen “abrogated our Second Amendment jurisprudence,”25 meaning the line of cases from Marzzarella,26 through Binderup,27 to Holloway and Folajtar.28 Yet the Majority does not assert that Bruen abrogated our Commerce Clause jurisprudence or that of the Supreme Court.29 Rightly so. We must “leave to the
Under the constitutionally mandated Commerce Clause jurisprudence that continues to bind us, Range lacks standing. “It is well established that plaintiffs bear the burden of demonstrating that they have standing in the action that they traveled in interstate commerce sufficient to meet the nexus requirement); Bass, 404 U.S. at 350 (holding
Before the District Court, Range alleged that “he suffers the on-going harm of being unable to obtain firearms from licensed federal firearms dealers.”34 While the District of Columbia Court of Appeals has recognized a cognizable injury where “the federal regulatory scheme thwarts [a challenger‘s] continuing desire to purchase a firearm,” it did so in cases where the regulation‘s facial constitutionality was at issue.35
This jurisdictional deficiency has put Range‘s claims beyond our reach. It is not unlikely, however, that a future challenge to the prohibition of