The Third Circuit Court of Appeals, in an en banc ruling, released a blistering opinion on June 6, 2023, in which it admonished the ATF for denying a firearms purchase to an individual with a non-violent conviction that was punishable under state law by more than one year. This is yet another circumstance of a federal court applying the Bruen standard of constitutional review to remove “another brick in the wall” that the federal government and ATF has used for years to deny individuals their rights as protected by the Second Amendment. See, Bryan Range v. Attorney General United States of America, 3rd Circuit No 21-2835 (June 6, 2023) (also included below).
Bryan Range had a nonviolent conviction on his record in 1995 for “making a false statement to obtain food stamps.” He was sentenced to 3 years probation in Pennsylvania but that crime could have been punished by up to five years in prison. In 1998, Range tried to purchase a rifle but was denied. His wife, thinking that was a mistake, purchased a hunting rifle for him as a gift. When Range learned that his 1995 conviction made him a “prohibited person” he sold the rifle to a gun dealer.
Although the federal district court and the initial three judge panel both granted summary judgment to the ATF, Range asked for the entire Third Circuit to reconsider the case “en banc” meaning that all of the appellate judges would rehear the case if they accepted the request. They did and they soundly rejected the position taken by the ATF by applying the Bruen standards.
The Third Circuit’s en banc opinion framed the issue this way:
Many courts around the country, including this one, overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step. We did so for the first time in Marzzarella, 614 F.3d at 97, and we continued down that road for over a decade. See, e.g., Drake v. Filko, 724 F.3d 426, 429, 434–40 (3d Cir. 2013); Binderup, 836 F.3d at 344–47, 353–56; Ass’n
of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 117 (3d Cir. 2018); Beers v. Att’y Gen., 927 F.3d 150, 154–55 (3d Cir. 2019), vacated sub nom. as moot, Beers v. Barr, 140 S. Ct. 2758 (2020); Holloway, 948 F.3d at 169–172; Folajtar, 980 F.3d at 901.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.” Id. 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. U.S. Const. amend. II; see Bruen, 142 S. Ct. at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully possess a firearm . . . .”); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009) (distinguishing among “who,” “what,” “where,” “when,” and “how” restrictions). Range claims he is one of “the people” entitled to keep and bear arms
and that our Nation has no historical tradition of disarming people like him. The Government responds that Range has not been one of “the people” since 1995, when he pleaded guilty in Pennsylvania state court to making a false statement on his food stamp application, and that his disarmament is historically
supported.
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.
The ATF continued to assert that Range was no longer one of “the people” at least for purposes of the Second Amendment because of his 1995 conviction. Of course, that argument is based entirely on laws passed by Congress in the 1900s and not on the law as of 1791. The Third Circuit easily rejected the government’s fatuous argument (although it is one that many federal courts have eagerly embraced prior to Bruen):
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”).
In sum, we reject the Government’s contention that only “law-abiding, responsible citizens” are counted among “the people” protected by the Second Amendment. Heller and its progeny lead us to conclude that Bryan Range remains among “the people” despite his 1995 false statement conviction.
Once the Third Circuit concluded that Range was still one of “the people” and that the Second Amendment applied to him, it turned to the second issue in Bruen which was the burden of the government to prove that the prohibition, here a felon in possession standard, was part of the nation’s historical tradition as of 1791 when the Second Amendment was ratified.
ATF brushed off the duty by asserting that the felon in possession prohibitions had been passed by Congress by at least 1961 and potentially as early as 1938 and, consequently, that the prohibition had a long standing history and tradition based on the dicta in Heller that certain laws, which were not before the court in Heller, were likely “presumptive constitutional”. The Third Circuit rejected that argument as well:
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.
ATF also argued that lifetime bans under the Second Amendment should be allowed because at the time of the adoption of the Second Amendment many crimes were punishable by death and a mere lifetime ban on firearms ownership or possession was clearly less severe. Another silly argument that the Third Circuit outright rejected:
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 individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed. As one of our dissenting colleagues notes, a felon could “repurchase arms” after successfully completing his sentence and reintegrating into society. Krause Dissent at 28–29. That aptly describes Range’s situation. So the Government’s attempt to disarm Range is not “relevantly similar” to earlier statutes allowing for
execution and forfeiture. See Bruen, 142 S. Ct. at 2132.
The Third Circuit’s en banc decision is significant for Tennesseans. It is also significant for consideration as part of Bil Lee’s Special Session which he has called in an effort to intimidate the Legislature into passing a Red Flag law which he asserts is the only reasonable solution to protect the people from murder of this category in the future. What Bill Lee continues to ignore and reportedly some in the Legislature, such as William Lamberth (based on reported statements that he has made) is the impact of the Supreme Court’s decision in Bruen.
Federal courts have for many years upheld as “constitutional” laws passed by government entities based on the finding that such laws were reasonable or that they had an important “public safety” objective to keep guns from the possession of certain individuals. In the last year, federal court decisions are realizing that the United States Supreme Court – unlike most of the rest of government – had the spine to apply the Second Amendment as written and not in deference to the whims of government officials nor the “police state”. The Supreme Court has said that no laws, unless they were part of the nation’s historical tradition as of 1791, are constitutional if they infringe any right covered by the breadth of the Second Amendment.
Bill Lee’s proposed Red Flag law is one premised on his assertion that it is necessary for public safety. Yet, he has not and can not identify a single law that existed as part of the nation’s historical tradition in 1791 that allowed government to seize firearms from “the people” or from any member of that group merely because the person might commit a crime in the future and/or because the person is alleged to have been or that they might be dangerous to themselves or others.
Bill Lee’s Special Session is nothing more than a call for constitutional violations of rights that each person has and that exists independent of the constitution. His actions and his call for a Red Flag law are clear violations of his oath to uphold the constitution and to be a steward of the rights of the people that are protected by the constitution. If he proceeds on this path, he should be the first named defendant in lawsuits seeking to hold him and the state of Tennessee accountable for violations of the Second Amendment, the Fourteenth Amendment and also of the Federal Civil Rights Acts.
You can join the effort to stop Bill Lee’s Special Session. Contact your legislators and demand that they refuse to submit to Bill Lee’s Special Session call. Commit now to find and support candidates to primary any legislator that files any such legislation and/or that lends their support in any manner to advance such legislation.
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