By Tanya Metaksa
On December 23, 2024, Brian Range received an early Christmas present from the US Court of Appeals for the Third Circuit.
For the second time this year, the Court reaffirmed its prior ruling that the felon-in-possession federal statute, 18 U.S.C. § 922 (g)(1), still does not apply to him in that Circuit.
“Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that he remains among “the people” protected by the Second Amendment despite his false statement conviction. And because the Government did not carry its burden of showing that the principles underlying our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.”
Garland v. Brian Range, in my opinion, is a very significant legal case centered on the Second Amendment rights of individuals, particularly involving the constitutionality of federal prohibitions on firearm possession by individuals with certain federal criminal convictions. It has
This case began in 1995, almost 30 years ago, when Brian Range was convicted of making false statements to obtain $2,458 of food stamp assistance, a misdemeanor under Pennsylvania law that was punishable by up to five years in prison. He was sentenced to three years’ probation, restitution, costs, and fines. Three years later, Range attempted to purchase a firearm but was rejected due to his prior conviction. Subsequently, his wife bought him a hunting rifle. Years later, upon learning that his conviction barred him from possessing firearms under federal law, he sold the rifle and sought legal recourse. In 2020, he challenged the constitutionality of the federal law, 18 U.S.C. § 922(g).
Federal statute 18 U.S.C. § 922(g)(1), which was passed in 1968 as part of the Gun Control Act of 1968, states that it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. On August 21, 2021, the district court rejected his suit, determining that the Second Amendment did not protect “unvirtuous citizens.” Range then appealed to the US Court of Appeals for the Third Circuit.
On Nov. 16, 2022, The Third Circuit panel affirmed the district court’s decision, concluding that “the people” constitutionally entitled to bear arms are “law-abiding, responsible citizens,” a category that excluded Range due to his conviction.
However, New York State Rifle & Pistol Association v. Bruen was decided by the United States Supreme Court on June 23, 2022. Range then appealed for a rehearing en banc, which was granted, and on Feb. 15, 2023, the US Court of Appeals for the Third Circuit, with many judges of the court in attendance, heard his case again. The decision was rendered on June 6, 2023. The en banc panel reversed the earlier decision, holding that § 922(g)(1) was unconstitutional as applied to Range. The court now determined that the government had not demonstrated that the ban on the possession of firearms was consistent with historical tradition. Thus, Range remained within “the people” protected by the Second Amendment.
The anti-Second Amendment Biden Administration tried again to derail the Third Circuit’s decision. On August 23, 2023, a letter was filed with the Supreme Court requesting more time to file a petition for certiorari. On Oct. 5, 2023, the government lawyers finally filed their petition. Nine months later, on July 2, 2024, the petition was granted, the Third Circuit Court’s Judgment was VACATED, and the case was REMANDED for further consideration in light of United States v. Rahimi. Thus, SCOTUS kicked the ball back to the Third Circuit and gave them another chance for a bite at the apple. The case was re-argued en banc again on Oct. 9 of this year.
Although this case is precedential for the Third Circuit only, I believe it will significantly impact the understanding of who comprises “the people” under the Second Amendment. Since the passage of the 1968 Gun Control Act (GCA68) and before Heller, most courts were of the persuasion that the people, referenced in the Second Amendment, really meant only the people who were free of sin. At the time of passage of the Gun Control Act of 1968, the norm for misdemeanor sentences was one year or less. Some exceptions in states like Massachusetts and Pennsylvania allowed for sentences greater than 2 years for certain misdemeanor offenses. However, these were not typical.
Garland v. Range has been in the United States court system for almost five years. Let’s hope the Garland Department of Justice, which only has 3 weeks left, will stop harassing Brian Range again. After all, the incoming Trump administration is highly unlikely to continue this case by initiating another appeal to SCOTUS. But more importantly, the Rahimi case, decided by SCOTUS in June 2024, has shown its importance in determining whether Brian Range or any other defendant under 18 U.S.C. § 922(g), is among the people referenced by the Second Amendment and thus not prohibited from owning a firearm. It is a case that many defense lawyers will use to regain Second Amendment rights for their clients.
