As-Applied Challenges to the Felon-in-Possession Law: Range III

This is a guest post by Professor Dru Stevenson.

The en banc Third Circuit recently re-decided Range v. Attorney General of the United States (Range III), a closely-watched as-applied Second Amendment challenge to the federal ban on felons possessing firearms in 18 U.S.C. § 922(g)(1). The case came back to the Third Circuit on remand from the Supreme Court, to be reconsidered in light of the Court’s decision in United States v. Rahimi. While no circuits have held that the law is facially unconstitutional, there is now a circuit split about the availability of as-applied challenges to the statute. For example, just a week before, the Fourth Circuit rejected as-applied challenges to § 922(g)(1) in United States v. Hunt.

Mr. Range is a fairly sympathetic party in the area of Second Amendment litigation.  In 1995, he pleaded guilty to one count of making a false statement on an application for food stamp benefits (his wife actually completed the application and penned the false statement, but Mr. Range co-signed the application). Range was sentenced to three years’ probation (no jail time), restitution, and a fine. The statute, however, allowed up to five years imprisonment, so the federal statute applied. Years later, after a couple failed attempts to purchase a firearm (he couldn’t pass a background check), he learned that his misdemeanor conviction for welfare fraud prevented him from doing so.  He sued for a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him, and he asked the court to enjoin enforcement of the law if he bought a hunting rifle and a shotgun for home defense.

The district court ruled against him in 2021, and while his appeal was pending the next year, the Supreme Court upended Second Amendment jurisprudence with New York State Rifle & Pistol Ass’n, Inc. v. Bruen. A panel of the Third Circuit applied Bruen and rejected his challenge, but a rehearing en banc resulted in a reversal. While the case was pending at the Supreme Court in 2024, the Court decided Rahimi, which recalibrated the Bruen methodology somewhat, and then granted certiorari in Range. The Court then vacated and remanded the case to the Third Circuit, which brings us to Range III, which mostly reiterates what the Third Circuit said the last time. Each time the Third Circuit has considered Range, it has provided a lengthy discussion of Founding-era firearms laws, with yet more judicial historiography in long concurring and dissenting opinions. The latest round has four concurrences and a dissent.

One feature of the case that sets it apart from most other challenges to § 922(g)(1) is that Mr. Range was not prosecuted for unlawful possession – this is not an appeal of a conviction, or a motion to have charges dismissed. He sought a declaratory judgment that the law was unconstitutional as applied to him.

In a 2022 law review article, I defended the felon-in-possession law. As the Supreme Court noted in Rahimi, our country has a long historical tradition of legislatures and courts disarming individuals and groups considered a threat to public safety or national security. While Mr. Range does not appear to pose a threat to his community (no history of violent crime), any attempt to distinguish “dangerous” from “non-dangerous” felons or felonies will inevitably plunge courts into the same quagmire they now have with the Armed Career Criminal Act (ACCA), in part because so many penal statutes include provisions for both violent and nonviolent variations on the underlying crime. Thus, I mostly agree with Judge Shwartz’s dissent in the Range case, which was joined by Judge Restrepo, and I disagree with the majority opinion. The basic gist of the dissent is that once we reject facial challenges to § 922(g)(1), which the Third Circuit has already done, it is up to Congress to balance the policy tradeoff and decide which felonies should disqualify a person from possessing firearms, even if the answer is “all felonies.”

That said, I also sympathize with the (lengthy) concurrence by Judge Krause, which takes a moderate approach, one that Congress arguably intended when it enacted the law in the first place. On the one hand, Judge Krause explains, the majority simply ignored many historical examples of the government disarming people for committing crimes or seeming to pose a serious threat to public safety. On the other hand, many, if not most, of these examples included a path for an individual to have their rights restored under certain circumstances. Thus, he concludes, courts should not determine whether the law was always (retrospectively) unconstitutional as applied to certain individuals or types of felons, but there should be a way for felons to petition a court for restoration of their firearm rights, and if they provide sufficient evidence that they pose no threat of violence to anyone, a court should be able to grant the petition.

When Congress enacted the gun ban for felons, it included a way for felons to petition for restoration of their gun rights (the statutory phrase is “relief from disabilities”), in 18 U.S.C. § 925(c).  Petitions were to go to the Attorney General, which in practice meant ATF, with judicial review for denials.  The statute provides:

…the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Moreover, a reviewing court “may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.” 

From the standpoint of traditional doctrines of Constitutional avoidance, this statutory provision seems like the easy answer.  Unfortunately, after some high-profile cases of felons committing crimes after having their firearms rights restored in the 1980’s, Congress stopped this process by defunding it, though the statute remains intact. As ATF explains on their website,

Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.

Mr. Range would presumably be a good candidate for relief under § 925(c) – he is probably the very type of person Congress had in mind when they enacted this. Congress could fix the problem that was before the (deeply divided) Third Circuit, and that has caused a circuit split, by merely omitting this budget rider in the future. Even though gun rights have long been a partisan issue, even the party that champions gun rights has passed on every opportunity so far to revive this law that allows for restoration of gun rights for nondangerous felons.

My proposal for appellate courts like the Third Circuit (and the Fifth and Sixth Circuits) that choose to recognize as-applied Second Amendment challenges to the felon ban is that they try to approximate the system set forth in § 925(c) – to consider whether a petitioner’s “circumstances of [the original felony conviction], and the applicant’s the record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.”  In other words, courts should deem Congress’ backdoor blockage of the petitions for relief as a constructive denial of the petitions, and proceed with judicial review of the case, just as the courts would have done with denials prior to 1992. Of course, the review would necessarily be de novo, rather than whatever standard of review courts may have used when ATF actually processed the petitions and produced a record of decision in each case.

This approach would avoid the perilous and felony-by-felony road that the Third Circuit is heading down at the moment, and would allow the circuits to coalesce around a reasonable approach, the approach Congress originally intended. The evidentiary burden would be on the felon seeking relief – which the majority of the Third Circuit has not embraced, but Judge Krause insisted was necessary in his concurrence, and which the Sixth Circuit has adopted. Proceeding with a constructive § 925(c) approach would also avoid the disruptions to the background check system that Judge Krause warns about, because the individual’s name would be removed from the FBI’s NICS database. In contrast, approaching these cases by whether the underlying felony was “dangerous” or “violent” throws the entire background check system into uncertainty – if whole categories of individuals should never have been there (the majority’s reasoning), how is a local gun dealer supposed to know whether to consummate a sale? Or the FBI to know whether any given individual’s name should be removed (the records sent to the NICS database do not include all the details about the nature of the crime committed). In addition, the majority’s approach in Range is functionally a judicial amendment or rewriting of the statute – the statute stays, but the court is gradually creating a list of felonies that are unwritten exceptions. Finally, it is also worth noting that some individuals with felony convictions for nonviolent crimes may also have a (sometimes recent) history of violence, even though their violent acts may yet have resulted in felony convictions for a variety of reasons (charged as misdemeanors instead, prosecutors decided it was a low-priority case or had evidentiary problems, etc.).

I have a second, more modest proposal about “as applied” Second Amendment challenges in general. In Bruen and Rahimi, the Court has carved out some categories of exceptions to the Second Amendment, although it has left the parameters of these exceptions mostly undefined and uncertain. They have said that some types of dangerous individuals can be disqualified, some types of unusually dangerous and uncommon weapons can be banned, some regulations of firearms commerce can exist, and some sensitive places can be gun-free zones. Lower courts are now wrestling with undefined categories, and legal academic commentators are still debating where the lines should be. As-applied challenges are inherently individualized – a court decides whether it would be unconstitutional for the law to apply to this person.  Due to the highly particularized nature of these decisions, it would be appropriate for a court to rule on more than one of these categories for the as-applied constitutionality of the law. For example, the Third Circuit mentions that Mr. Range claims he only wants a rifle for hunting and a shotgun for home defense, which does not seem like a threat to the community. Would the court have felt different if Mr. Range announced he planned to amass a huge personal arsenal, enough to outfit an entire local militia, and that he planned to acquire several used fully automatic machine guns, albeit through all the proper NFA registration and licensing channels? What about large capacity magazines, which may or may not be banned? (SCOTUS has yet to decide this question.) The way the court drafted its opinion, there is nothing to prevent Mr. Range from doing this, or from stockpiling military-style weapons while secretly dreaming of starting a civil war. I doubt that Mr. Range will do that, but when this case is applied to the next felon claiming he is not dangerous enough to be banned from gun possession, I am not so sure.

Given the individualized adjudication involved in these “as applied” challenges, including future decisions that will apply Range III as binding precedent, it would have been appropriate for the court to issue a decision tailored to Mr. Range’s situation rather than a general rule that firearms ineligibility for felons is unconstitutional if they are not clearly “dangerous.” The court should have said, “§ 922(g)(1) does not apply to Mr. Range for purposes of owning a hunting rifle and a shotgun for home defense, and the necessary ammunition for these weapons,” and had left undecided questions like whether Mr. Range is eligible to operate a gun dealership, or have guns and accessories that are banned in some states, or can carry his firearms in a gun-free zone whose status is currently being litigated. If the challenge is “as applied to him,” then the decision should be narrowly tailored to him, and should steer clear of these unsettled areas of Second Amendment law.