GEORGE PITSILIDES v. WILLIAM P. BARR, Attorney General of the United States; THOMAS E. BRANDON, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives; CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation; UNITED STATES OF AMERICA
No. 21-3320
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 10, 2025
PRECEDENTIAL.
(Opinion filed: February 10, 2025)
Richard S. Roberts, Jr. [ARGUED]
Zator Law
4400 Walbert Avenue
Allentown, PA 18104
Counsel for Appellant
Brian M. Boynton
John C. Gurganus
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
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
Harrisburg, PA 17102
Counsel for the Appellees
OPINION OF THE COURT
KRAUSE, Circuit Judge.
In our recent decision in Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024) (en banc) (Range II), we held that
Because the parties litigated this case in the District Court under a Second Amendment framework that has since been abrogated—and which turned on different considerations—we conclude that further factual development is needed to properly consider Pitsilides’ challenge. Accordingly, we will affirm in part, vacate in part, and remand to the District Court for further proceedings.
I. Background
Pitsilides is a frequent gambler. While he operates a successful chain of restaurants in Virginia, North Carolina, and South Carolina, he has “been a professional poker player for a good amount of years,” which he describes as his “hobby.” App. 38. His poker endeavors have proven quite successful, so much so that Pitsilides has competed in the World Series of Poker.
But Pitsilides’ gambling activities extended beyond the professional. In 1998, he was indicted in Pennsylvania in connection with placing illegal sports bets—sometimes consisting of tens of thousands of dollars—with a bookmaker. He pleaded nolo contendere to one count of criminal conspiracy to commit pool selling and bookmaking and two counts of pool selling and bookmaking in Pennsylvania, in violation of
In October 2019, Pitsilides filed a complaint in the District Court seeking a declaration that
The District Court granted summary judgment in favor of the Government, applying the two-step framework from our decision in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), abrogated by New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022). The Court concluded that Pitsilides failed to show his convictions were not “serious,” relying on the “cross-jurisdictional consensus” that bookmaking, pool selling, and similar crimes are sufficiently serious to make
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
III. Discussion
Pitsilides takes two positions on appeal, replaying those he advanced in the District Court. First, he contends that his predicate convictions for bookmaking and pool selling fall into
A. Section 921(a)(20)(A)
We turn first to Pitsilides’ contention that his predicate convictions fall within
Section
Our Court has not previously interpreted the scope of
Here, then, we must read the “other similar offenses” clause in light of the list of offenses preceding it, which confines its meaning to those that share common attributes with “antitrust violations, unfair trade practices, [and] restraints of trade.” By using the term “offenses,”
While the statute does not specify the salient element(s), our sister circuits have converged on the element “that competition or consumers were affected.” United States v. Schultz, 586 F.3d 526, 530 (7th Cir. 2009). We find this reasoning persuasive. So to determine whether a given predicate constitutes a “similar offense,” we ask whether “the government would
Pitsilides’ convictions for bookmaking and pool selling do not contain such an element. The Pennsylvania Code provides that a person is guilty of pool selling and bookmaking if he “receives, records, registers, forwards, or purports or pretends to forward, to another, any bet or wager upon the result of any political nomination, appointment or election, or upon any contest of any nature.”
Pitsilides attempts to evade this conclusion by recharacterizing his convictions as “effectively undercut[ting] the market by participating in gambling activities outside of a state-sanctioned context” and “creating unfair competition.” Opening Br. 23. But we examine the elements of predicate offenses, not arguable effects on or attenuated relationships to consumers and competition. As the Seventh Circuit observed, “not all offenses related to the regulation of business practices fall within [
Because Pitsilides’ predicate convictions do not contain an element that competition or consumers were affected, they do not qualify for
B. Section 922(g)(1)
Having concluded that
We recognize that Pitsilides brought this declaratory judgment action in October 2019, so this case was litigated and decided under our decision in Binderup. But much has changed since then. After the District Court rejected Pitsilides’ Second Amendment challenge, the Supreme Court decided Bruen, which effected a sea change in Second Amendment law. Last term, the Supreme Court decided United States v. Rahimi, 602 U.S. 680 (2024), which refined and clarified Bruen‘s methodology. And our Court has since issued its en banc decision in Range II, addressing an as-applied challenge to
1. Intervening Developments in the Law
While contemporary Second Amendment jurisprudence in many ways begins with District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court‘s seminal decision in Bruen provides the governing methodology for assessing whether modern firearm regulations comport with the Second Amendment. There, the Court explained
Rahimi further clarified the extent to which modern firearm restrictions need to match historical analogues. There, the Supreme Court explained that, when conducting Bruen‘s history-and-tradition inquiry, “the appropriate analysis” is not whether the challenged regulation sufficiently matches up to a historical one, but instead “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. By confirming that our focus is “the principles underlying the Second Amendment,” id., the Court eschewed the notion that our search for historical analogues portends “a law trapped in amber,” id. at 691. And in measuring modern regulations’ fit and justification with historical principles, we remain vigilant not to “assume[] that founding-era legislatures maximally exercised their power to regulate” conduct. id. at 739–40 (Barrett, J., concurring).
Rahimi itself helpfully illustrated this approach. There, while it “did not ‘undertake an exhaustive historical analysis of the full scope of the Second Amendment,‘” id. at 702 (quoting Bruen, 597 U.S. at 31), the Supreme Court examined historical surety statutes requiring individuals to post a bond before “going armed” if a magistrate determined that they “would do ... harm or breach the peace” and affray laws preventing people from “going armed” to “terrify the good people of the land,” as that could lead to public disorder and violence, id. at 696–97 (cleaned up) (quoting 4 William Blackstone, Commentaries on the Laws of England 149 (10th ed. 1787)). In short, “surety laws provided a mechanism for preventing violence before it occurred,” while affray laws “provided a mechanism for punishing those who had menaced others with firearms.” id. at 697.
“Taken together,” these dissimilar measures yielded the general principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” id. at 698, confirming the constitutionality of the firearm regulation at issue in that case, which prohibited anyone found to “represent[] a credible threat to the physical safety of another” from possessing a firearm, id. at 699 (quoting
Most recently, our en banc Court decided Range II, which involved an individual who the government agreed had committed a non-violent felony ($2,600 in food stamp fraud) over thirty years earlier, had lived an essentially law-abiding life since that time, had no history of violence, had never knowingly violated
The upshot of these cases is threefold: First, as Bruen and Rahimi make clear, our inquiry into principles that underlie our regulatory tradition does not reduce historical analogizing to an exercise in matching elements of modern laws to those of their historical predecessors. Instead, we must consider whether the principles embodied in different strands of historical firearm regulations, “[t]aken together,” Rahimi, 602 U.S. at 698, support contemporary restrictions, all the while remaining vigilant “not to read a principle at such a high level of generality that it waters down the right,” id. at 740 (Barrett, J., concurring).
Second, whatever other recourse may or may not be available, felons seeking to challenge the application of
Third, while Rahimi and Range II did not purport to comprehensively define the metes and bounds of justifiable burdens on the Second Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misus[ing firearms],” Rahimi, 602 U.S. at 698, in other words, when he would likely “pose[] a physical danger to others” if armed, Range II, 124 F.4th at 232. Indeed, as Judge Bibas presciently observed even before Bruen, “[a]s an original matter, the Second Amendment‘s touchstone is dangerousness,”3 Folajtar v. Att‘y Gen., 980 F.3d 897, 924 (3d Cir. 2020) (Bibas, J., dissenting); see also Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (“[L]egislatures have the power to prohibit dangerous people from possessing guns.“), and our sister circuits have articulated the principle similarly in light of Rahimi, see United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024) (per curiam) (“The historical record demonstrates ‘that legislatures have the power to prohibit dangerous people from possessing guns.‘” (quoting Kanter, 919 F.3d at 451 (Barrett, J., dissenting))); United States v. Williams, 113 F.4th 637, 657 (6th Cir. 2024) (“[O]ur nation‘s history and tradition demonstrate that Congress may disarm individuals they believe are dangerous.“); United States v. Jackson, 110 F.4th 1120, 1128 (8th Cir. 2024) (“Legislatures historically prohibited possession by categories of persons based on a conclusion that the category as a whole presented an unacceptable risk of danger if armed.“).
2. Implications for this Appeal
Given the intervening developments in our Second Amendment law, we conclude that the record here is insufficient to determine whether
As evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony. While some offenses may offer conclusive evidence that someone poses such a danger, see, e.g., Bullock, 123 F.4th at 185; Williams, 113 F.4th at 663, at least with predicate offenses like Range‘s that did not plausibly involve the use of force or physical injury, courts must consider all factors that bear on a felon‘s capacity to possess a firearm without posing such a danger.4 Thus, in Range II, we elaborated on Range‘s post-conviction conduct reflecting a special danger of misusing firearms and the absence of any facts in the record indicating he presently posed a danger to the public. See 124 F.4th at 232. As the Sixth Circuit similarly observed, at least one principle underlying the Second Amendment—that a legislature may disarm those who pose a physical danger to others—calls for examination of “each individual‘s specific characteristics,” which “necessarily requires considering the individual‘s entire criminal record—not just the predicate offense for purposes of
Here, the Government contends the record is sufficient for us to conclude, in contrast to Range, that Pitsilides poses a danger if re-armed. Among other things, it points to the parties’ stipulation that, following Pitsilides’ 1998 bookmaking and pool selling convictions—crimes that do not necessarily involve violent conduct—he also pleaded guilty to two misdemeanor counts of owning a place where illegal gambling was occurring in Virginia. These convictions stemmed from his regular operation of poker games at his Virginia Beach property that, among other things, “were staffed by security,” and ultimately were raided by a SWAT team. App. 52.
For his part, Pitsilides counters that gambling itself is not an inherently dangerous activity and that there is a dearth of Founding-era restrictions on firearm possession as a result of illegal gambling. While he concedes that “nearly all states and the federal government regulated gambling and several states prohibited games entirely,” Pitsilides insists that the Government cannot demonstrate that his disarmament is consistent with our Nation‘s tradition of firearm regulations because “the punishments [for those offenses] ... did not include disarmament.” Appellant‘s Second Suppl. Letter Br. 9. He also maintains that history and tradition limit disarmament to those “found to be a credible threat to a person or society,” and his gambling-related offenses do not evince such a threat. Appellant‘s Third Suppl. Letter Br. 4.
But that mistakes the relevant inquiry. Our consideration of history is not a hunt for “historical twin[s],” Bruen, 597 U.S. at 30 (emphasis omitted), or “a doomed quest for historical dead ringers,” Range II, 124 F.4th at 278 (Krause, J., concurring in the judgment). Instead, we look to the principles underlying our regulatory tradition, and the question here is whether Pitsilides may be disarmed consistent with the historical principle that legislatures may disarm a person who poses a danger to the physical safety of others. See Rahimi, 602 U.S. at 693 (“From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others.“); Range II, 124 F.4th at 232 (concluding
And contrary to Pitsilides’ constricted view of what makes a person a sufficient danger to remain disarmed, both history and common sense reflect that this “dangerousness”
But as Bruen, Rahimi, and Range II teach, we may not paint with such a broad brush when evaluating an individual felon‘s as-applied challenge. So while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others. That assessment necessarily requires individualized factual findings.
Here, we know that Pitsilides committed additional gambling offenses in 2011—themselves a continuation of his illegal gambling activities that began in 1979—but we know nothing of his other post-conviction conduct indicative of dangerousness or gambling activity since then. We know his illegal gambling business was “staffed by security, waitresses, and dealers,” App. 52, consistent with a large-scale, cash-based criminal activity, such as organized crime, see United States v. Williams, 124 F.3d 411, 417 n.7 (3d Cir. 1997) (observing Congress has “recogni[zed] that gambling has historically provided a major source of revenue for organized crime groups“), that could carry a heightened risk of violence, but we do not know the actual scale of those operations. And we know that Pitsilides employed “security,” which could imply a known risk of danger and the prospect of violent confrontation, but we know no specifics about those security guards, including whether they were armed.5
Given the gaps in this record, we will remand to the District Court to permit the parties to pursue additional discovery of facts probative to the prevailing Second Amendment analysis, including whether Pitsilides poses a special danger of misusing firearms in a way that would endanger others.
IV. Conclusion
For the foregoing reasons, we will affirm in part and vacate in part the District Court‘s judgment and will remand for further proceedings consistent with this opinion.