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12/02/2022

Third Circuit Applies Bruen to Non-Violent Felons
Michael Ramsey

In Range v. Attorney General, a panel of the Third Circuit (Judges Shwartz, Krause and Roth) applied the Supreme Court's decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen to decide if the Second Amendment allows the government to prohibit non-violent felons from possessing firearms.  The panel held that it does, based on extensive originalist analysis as directed by Bruen.  In particular, the court found that statutes in England, the American colonies, and the U.S. states after the revolution commonly barred firearms possession by people who disrespected the rule of law (not necessarily just violent offenders.  From the conclusion (citations omitted):

First, in keeping with Locke’s view that compliance with communal judgment is an inextricable feature of political society, these laws “defined membership of the body politic” by disarming individuals whose refusal to take these oaths evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community. Second, legislatures were understood to have the authority and broad discretion to decide when disobedience with the law was sufficiently grave to exclude even a non-violent offender from the people entitled to keep and bear arms. 

The court also found support in the anti-federalist "Dissent of the Minority" in the Pennsylvania ratifying convention, often seen as an early version of the Second Amendment, which declared:

[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.

The court concluded (citations and quotation omitted):

As the Dissent of the Minority’s proposal makes clear, members of the Founding generation viewed [c]rimes committed—violent or not—as an independent ground for exclusion from the right to keep and bear arms. Amici insist that the proposal’s crime and danger clauses must be read together as authorizing the disarmament of dangerous criminals only. But the Dissent of the Minority’s use of the disjunctive “or” refutes this counterargument: The dissenters distinguished between criminal convictions and dangerousness, and provided that either could support disarmament.

This all seems plausible to me, although (as the court acknowledges) there are some prominent originalist judges who have taken a different view of it.  In any event, the court's detailed consideration of the historical record seems to undermine some alarmist commentary that Bruen sets an impossible task for the lower courts.