Bondi v Range - Nonviolent misdemeanant 2A prohibition

[Euler]

CA3 Docket
Eastern PA Docket

In 1995, Bryan Range was charged and plead guilty to the misdemeanor of concealing income in 1994. He had understated his income to qualify for food stamps. He was fined $100, paid court costs of $288.29, and repaid $2458 of food stamp benefits. He was also sentenced to three years of probation, which he completed successfully. He could have been sentenced to five years of imprisonment.

18 USC 922(g)(1) prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms for life. 18 USC 921(a)(20) supposedly excludes those crimes which are misdemeanors. However, the US DoJ has adopted the position that 18 USC 922(g)(1) includes misdemeanors punishable by more than two years of imprisonment.

In July 2020, Range filed a suit in the Federal District Court of Eastern Pennsylvania to have his firearm rights restored. At the time, question 11(c) on Form 4473 asked: Have you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

Currently question 21(e) on Form 4473 asks: Have you ever been convicted in any court, including a military court, of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

In August 2021, the District Court ruled for the state.

In September 2021, Range appealed to the Third Circuit Court of Appeals.

In June 2022, the US Supreme Court issued the NYSRPA v Bruen opinion.

In November 2022, a 3-judge panel affirmed the district decision, saying that "the people" in the Second Amendment meant "law-abiding people," of which Range was not one, and that such an interpretation was congruent with NYSRPA v Bruen. Range applied for an en banc hearing.

In January 2023, the Court of Appeals granted the en banc hearing, scheduled for February 15. (Audio)

Edited March 14, 2025 at 03:29 AM by Euler
Range v US → Bondi v Range

[Flynn]

BAM!  Heller/Bruen just got a big boost in the 3rd circuit!

 

US cannot ban people convicted of non-violent crimes from owning guns-appeals court

 

https://www.reuters.com/world/us/us-cannot-disarm-people-convicted-non-violent-crimes-appeals-court-2023-06-06/

 

https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwyngadvw/CA3-firearms-2023-06-06.pdf

 

This puts the entire NFA on the chopping block!  As well as pretty much all gun regulations, more solid precedent!

 

Quote

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 § 922(g)(1) does not satisfy the Government’s burden.8

 

Edited June 7, 2023 at 01:06 AM by Flynn

[Euler]

Reuters said:

...

Circuit Judge Thomas Hardiman wrote for the majority on Tuesday that the government had failed to point to any laws from the United States' founding establishing a tradition of disarming non-violent criminals.

...

 

There were four crimes for which the founders disarmed an individual:

1. Murder
2. Rape
3. Burglary
4. Treason (They really, really didn't like traitors.)

 

You could probably argue that burglary isn't necessarily violent. Treason isn't, as well. The point is that we disarmed people for far fewer crimes than we do today. We disarmed people who committed capital offenses when they weren't executed. Although we did expand the list of capital offenses (e.g., horse theft), we have never executed anyone for tax fraud, copyright violation, or falsifying a loan application, all of which are (today) felonies and none of which are violent.

[steveTA84]

On 6/6/2023 at 8:01 PM, Flynn said:

BAM!  Heller/Bruen just got a big boost in the 3rd circuit!

 

US cannot ban people convicted of non-violent crimes from owning guns-appeals court

 

https://www.reuters.com/world/us/us-cannot-disarm-people-convicted-non-violent-crimes-appeals-court-2023-06-06/

 

https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwyngadvw/CA3-firearms-2023-06-06.pdf

 

This puts the entire NFA on the chopping block!  As well as pretty much all gun regulations, more solid precedent!

 

 

Being that Delaware’s AWB is currently being challenged and also I think NJ’s, this could really complicate things for the grabbers 

[Euler]

Opinion said:

...

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."

...

The Government argues that "legislatures traditionally used status-based restrictions" to disarm certain groups of people. ... Apart from the fact that those restrictions based on race and religion now would be unconstitutional under the First and Fourteenth Amendments, the Government does not successfully analogize those groups to Range and his individual circumstances. That Founding-era governments disarmed groups they distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove that Range is part of a similar group today.

...

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 contention that "Bruen does not meaningfully affect this Court's precedent" ... is mistaken for the reasons we explained in Section III, supra.

...

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. §922(g)(1) only as applied to him ...

...

 

Some thoughts:

1. The appeals court rejects that it has to defer to the legislature's definition of "the people."
2. The appeals court was willing to allow an analogy of the racist laws if the government could prove that Range was the kind of danger that the racists feared when they restricted the rights of "Loyalists, Native Americans, Quakers, Catholics, and Blacks."
3. The government argued that Bruen did not unbind previous precedent in favor of gun control. The court specifically said that it did. (IMO this is the big point. For example, Cook County and Raoul are arguing the applicability of Friedman in the current IL AWB cases. Of course, the 7th Circuit is not the 3rd Circuit, but a shot has been called.)
4. The decision applies only to Bryan Range, not everyone whose rights are suspended under 18 USC 922(g)(1), although it does set precedent. Presumably everyone else affected by 18 USC 922(g)(1) could now file their own suits and cite this case as an authority. Are the flood gates open?

[Flynn]

On 6/6/2023 at 9:33 PM, Euler said:

The decision applies only to Bryan Range, not everyone whose rights are suspended under 18 USC 922(g)(1), although it does set precedent. Presumably everyone else affected by 18 USC 922(g)(1) could now file their own suits and cite this case as an authority. Are the flood gates open?

 

I would say the flood gates are open in the 3rd circuit with this precedent, because it basically set the test for 18 USC 922(g)(1) inline with Bruen for the lower courts and emphasized that modern law is a moot analogy, so unless the states can come up with some new founding/reconstrution era analogy they can bluff a judge into thinking is applicable 18 USC 922(g)(1) should be moot when applied to a plethora of 18 USC 922(g)(1) convictions.

 

What will be interesting is to see how the Feds and NICS are going to handle this, right now it would appear to be on a case by case basis, but it's almost a certain bet that some lower court will expand it beyond a single person application in short, will NICS adjust go/no go for just the 3rd circuit when that happens?

[Flynn]

In addition to the above, the 4 Boxes Diner, brought up a good point, that point being in all these states that fall under the 3rds precident, the prosecutors are now left in a gray area if they choose to pursue charges of 'unlawful possesion by a felon' under 18 USC 922(g)(1) as they have no clear clarification of what felonies are actually applicable to 18 USC 922(g)(1) prohibition anymore and what felonies could get the charges tossed as a rights violation.  This is going to get quite interesting and may very well hand us that third SCOTUS case to help lay down the hammer on the inferior courts sooner than latter as the Feds are now in a pickle that almost necessitates SCOTUS action.  He also brought up that majority opinion was authored by a judge that has been on the Supreme Court justice short list, meaning he is highly respected and rank judge and that gives even more weight to this ruling.

[Molly B.]

 

[Euler]

On August 16, the US DOJ filed a motion to the Supreme Court's shadow docket to allow more time to file a petition for certiorari. It's asking for an extension to October 5.

[Euler]

On October 5, the government filed the petition for certiorari as Garland v Range.

[Euler]

On June 24, the government filed a supplemental brief.

On June 26, Range also filed a supplemental brief.

I haven't read them yet, but I suspect it's a battle over GVR with reference to Rahimi or not.

[Euler]

The supplemental brief filed by the government is, indeed, simultaneously filed in:
Garland v Range
Vincent v Garland
Jackson v US
Cunningham v US
Doss v US (not tracked in this forum -- yet)

US brief said:

These five cases present the question whether 18 U.S.C. 922(g)(1), the statute prohibiting a person from possessing a firearm if he has been convicted of "a crime punishable by imprisonment for a term exceeding one year" ... violates the Second Amendment. In each case, we asked this Court to hold the petition for a writ of certiorari pending its decision in United States v. Rahimi .... Now that the Court has decided Rahimi, we believe that it should grant plenary review to resolve Section 922(g)(1)'s constitutionality. In particular, the Court should grant the petitions in Doss, Jackson, and either Range or Vincent; consolidate the granted cases for briefing and argument; and hold the remaining petitions pending the resolution of the granted cases. If the Court chooses not to take that course, it should grant, vacate, and remand (GVR) in Range and deny certiorari in the remaining cases.

This Court often issues a GVR order if an intervening decision clarifies the legal principles governing the resolution of the question presented in a pending petition. ... But "a GVR order is inappropriate" if "the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court." ... In our view, that is the case here. Section 922(g)(1)'s constitutionality has divided courts of appeals and district courts. Although this Court's decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict. And given the frequency with which the government brings criminal cases under Section 922(g)(1), the substantial costs of prolonging uncertainty about the statute's constitutionality outweigh any benefits of further percolation. Under these circumstances, the better course would be to grant plenary review now.
...

In other words:
review them all; or
GVR Range, because Range won at the appellate level, and deny the rest, because all the others lost at the appellate level.

[Euler]

Range agrees with the US, in part, because he wants to win.

Range brief said:

... This case is distinct from Rahimi in every relevant respect: Section 922(g)(1) disarms Range permanently despite the fact that the Government admits that he "has never engaged in violence, nor has he ever threatened anyone with violence." ... Indeed, if anything Rahimi undermines the rationale of the dissenters in the court below by rejecting the Government's "responsible-citizen" theory of the Second Amendment. For these reasons, there are only two plausible resolutions of the Government's petition for certiorari -- outright denial or grant for plenary review. In no circumstance should this Court GVR.
...

[Smallbore]

It is rare to find a court protecting individual rights over government tyranny. This may be attributed to most judges were prosecutors. I have read where it would be nice to have defense lawyers appointed to the Supreme Court.

[mab22]

On 6/27/2024 at 7:56 AM, Smallbore said:

It is rare to find a court protecting individual rights over government tyranny. This may be attributed to most judges were prosecutors. I have read where it would be nice to have defense lawyers appointed to the Supreme Court.

Don't the current Chiraq prosecutors act like defense attorneys these days?

[burningspear]

No. Not even close.

[Euler]

Petition granted, vacated, and remanded for further consideration in light of Rahimi.

I suppose that Range could still win, just for an alternate reason. The original reason that the appeals court ruled for Range was that a 1961 law has no founding analog. Perhaps now it will be that there's no founding analog for non-violent criminals.

[Dumak_from_arfcom]

 

[bmyers]

 

[Dumak_from_arfcom]

On 7/2/2024 at 10:37 AM, Euler said:

Petition granted, vacated, and remanded for further consideration in light of Rahimi.

I suppose that Range could still win, just for an alternate reason. The original reason that the appeals court ruled for Range was that a 1961 law has no founding analog. Perhaps now it will be that there's no founding analog for non-violent criminals.

 

Good call. It looks like that is exactly what happened. 

 

Now the trick will be getting it to SCOTUS to apply the ruling across the US.  

[Euler]

It's back.

On March 12, the DOJ asked the US Supreme Court to extend the time that it has to petition for certiorari. (shadow docket)

[Euler]

On March 14, Alito extended the deadline to petition to April 22.

[Molly B.]

A huge win for Second Amendment ! 

 

 

[Euler]

It's a huge win for Range. Other non-violent convicts in the 3rd Circuit would have to file a lawsuit to get their 2A rights back. Non-violent convicts in other circuits are SOL.

Mark Smith asserts that DOJ can start giving back non-violent convicts their 2A rights, but at this point that's a POLICY decision that can be reversed by the president (any president).

[yurimodin]

On 4/23/2025 at 6:59 PM, Euler said:

Non-violent convicts in other circuits are SOL.

Eventually you would think a 14th Amendment argument could be made but that would require the courts to actually care about rights.