Lifetime ban on guns for nonviolent criminals struck down in 3rd Circuit.

[BillSWPA]

The Third Circuit has rejected lifetime bans on gun ownership for nonviolent criminals.

https://www.washingtontimes.com/news...ns-for-nonvio/

The opinion is here. I have not yet read it.

https://www2.ca3.uscourts.gov/opinarch/212835pen.pdf

[Kanye Wyoming]

@BillSWPA - thanks.

The whole thing is very worthwhile reading and I suspect everyone here will find it interesting. I tend to think I know a lot of the historical stuff, but I am overly generous in my opinion of myself, and I learned an awful lot. Even from the “OH NO ASSAULT WEAPONS” dissent by Judge Krause (which begins on the 45th page), which was well done and as well reasoned and argued as one can be when one is wrong.

The majority (9 of 15) opinion faithfully applies Bruen and undertakes the required historical inquiry, and overall is well crafted and satisfying intellectually, with one exception. Rather than directly taking on 18 U.S.C. § 922(g)(1) (the felon-in-possession provision), which is clearly unconstitutional as applied to nonviolent felons under the logic of their opinion, they say this particular dude (Range), having done specifically what he did under the circumstances he did them, and given how he has conducted himself since, remains one of “the people” and therefore cannot be stripped of his 2A rights. I would analogize it thusly. A state law prohibits Black people who have been convicted of a felony or a misdemeanor punishable by more than a year of imprisonment from purchasing property adjacent to property owned by white people. Court says we won’t go so far as to say this state law violates the Equal Protection Clause or the Fair Housing Act, but because this particular plaintiff is, to use Joe Biden’s words, articulate and bright and clean and a nice-looking guy, we’ll allow him to buy the property.

Judge Krause, who is quite brilliant, brilliantly seizes on this in her dissent, characterizing the majority’s holding as the “like Range” test.

If the police receive a tip that an ex-offender is toting an assault rifle, it is no longer sufficient for probable cause to simply confirm a prior felony conviction in NICS. How will officers—or prosecutors for that matter—know whether that felon is sufficiently “like Range” to justify his arrest as a felon-in-possession, or whether they are instead bringing liability on themselves for violating the felon’s civil rights? Must they research the suspect’s post-conviction conduct? Should they consider relevant conduct underlying the original violation? How could they possibly determine that conduct in the case of guilty pleas entered decades earlier?

Second, without a functional background check system, how will federal firearms licensees (FFLs) comply with federal law? FFLs who discover that a potential customer was con- victed of a felony will have no way of knowing whether the individual’s crime and post-conviction conduct are sufficiently similar to Range’s to preclude the application of § 922(g)(1).

One step at a time, though, and this case — the majority opinion, the concurrences, and the dissents — is one of many recently that illustrate vividly the immense power of the analytical framework required by Bruen.

It also illustrates vividly the immense importance of choosing the person who chooses the judges.

[BillSWPA]

@BillSWPA - thanks.

The whole thing is very worthwhile reading and I suspect everyone here will find it interesting. I tend to think I know a lot of the historical stuff, but I am overly generous in my opinion of myself, and I learned an awful lot. Even from the “OH NO ASSAULT WEAPONS” dissent by Judge Krause (which begins on the 45th page), which was well done and as well reasoned and argued as one can be when one is wrong.

The majority (9 of 15) opinion faithfully applies Bruen and undertakes the required historical inquiry, and overall is well crafted and satisfying intellectually, with one exception. Rather than directly taking on 18 U.S.C. § 922(g)(1) (the felon-in-possession provision), which is clearly unconstitutional as applied to nonviolent felons under the logic of their opinion, they say this particular dude (Range), having done specifically what he did under the circumstances he did them, and given how he has conducted himself since, remains one of “the people” and therefore cannot be stripped of his 2A rights. I would analogize it thusly. A state law prohibits Black people who have been convicted of a felony or a misdemeanor punishable by more than a year of imprisonment from purchasing property adjacent to property owned by white people. Court says we won’t go so far as to say this state law violates the Equal Protection Clause or the Fair Housing Act, but because this particular plaintiff is, to use Joe Biden’s words, articulate and bright and clean and a nice-looking guy, we’ll allow him to buy the property.

Judge Krause, who is quite brilliant, brilliantly seizes on this in her dissent, characterizing the majority’s holding as the “like Range” test.



One step at a time, though, and this case — the majority opinion, the concurrences, and the dissents — is one of many recently that illustrate vividly the immense power of the analytical framework required by Bruen.

It also illustrates vividly the immense importance of choosing the person who chooses the judges.

I just read the main opinion but will not have time to read the other opinions until at least tomorrow.

You make a very important point that this opinion does not generally nullify the prohibition of gun possession by nonviolent criminals, but applies only to this specific individual. The case does set a precedent for reaching a similar result in similar cases, but the prohibition in general remains mostly intact.

Like the Bruen opinion, this opinion is very worth reading for the history lesson.

From the standpoint of long-term political preservation of our rights, I was previously concerned that the creeping scope of prohibited persons could eventually be quite large, covering anyone who ever took prescription anxiety medication or received too many traffic tickets. This case appears to begin the reversal of that trend. At the same time, I am glad the courts are proceeding slowly with extending second amendment rights to convicted criminals. We all know that criminals break laws, and that laws do little to deter their conduct. However, getting the right judges appointed requires persuading the people in the middle - the people who change their votes and decide elections - that our position is reasonable. The possibility that someone convicted of serious violent crimes could potentially still legally buy, possess, and carry guns will not help us persuade that middle.

[DrkBlue]

Thanks to BillSWPA for the posting. Excellent commentary too.

After reading, two overriding observations:

1) The decision was rendered in a sensible and balanced point of view. I found it somewhat redemptive towards my viewpoint of the federal circuits, which get tasked with some terribly difficult decisions. This decision focusing “on the people” stirred my emotions somewhat. As well, the decision makes it clear it is a narrow decision.

2) The attractiveness of litigants in some of these recent cases is impressive. Brian Range and his misdeeds in the appellate record… Pretty sympathetic portrayal. Also redemptive that the Third District rendered a bit of grace to Mr. Range.



And Judge Krause’s dissent… Really should be read. That is some strong and persuasive argument. The dissent also notes that gun control has been used as an often coercive political punishment since the early Colonial days, which seems at odds with 14th Amendment.

[willie]

Two of my former students who had serious juvenile records were granted a Tx concealed carry license. The state placed one of these guys on probation until age 30 even after he left the juvenile lockup. I knew them when they were gang bangers and see them now at my gun shop. They are covered with tattoos including face and head. The guy who was on probation until age 30 will make it in life. I would have him and his wife in my home. The other gentleman still thinks he's slick. We talk, and he respects my opinion. I advised him to cease printing to show off, to quit bragging about lying in court, and to lose his hostility towards cops. The other day I made him buy my lunch. Both have my cell number.

[DMF13]

Seeing as how there is a Circuit split, this will likely get decided at the Supreme Court. I have a hard time seeing the current Justices supporting the Range decision, especially in light of Kavanaugh and Roberts concurring opinion in Bruen.

Also, as a recent Slate article points out, in the late 18th Century many non-violent crimes were capital crimes, so it is easy to reconcile lesser punishments for non-violent crimes with "history & tradition."

It will be interesting to see how this plays out.

[Kanye Wyoming]

Seeing as how there is a Circuit split, this will likely get decided at the Supreme Court. I have a hard time seeing the current Justices supporting the Range decision, especially in light of Kavanaugh and Roberts concurring opinion in Bruen.

Also, as a recent Slate article points out, in the late 18th Century many non-violent crimes were capital crimes, so it is easy to reconcile lesser punishments for non-violent crimes with "history & tradition."

It will be interesting to see how this plays out.

It will indeed be interesting. Regarding the severe punishments for non-violent crimes, one point the Range majority stressed was that though the punishments were severe, even if you were sentenced to death you could still keep your guns.

[DMF13]

. . . one point the Range majority stressed was that though the punishments were severe, even if you were sentenced to death you could still keep your guns.

Care to provide that citation from the majority opinion? I've read it, and it does not say that.

It is addressed on pages 19 & 20, in the majority opinion, and does not make the ridiculous claim that an executed person maintained possession of firearms.

[Kanye Wyoming]

Care to provide that citation from the majority opinion? I've read it, and it does not say that.

It is addressed on pages 19 & 20, in the majority opinion, and does not make the ridiculous claim that an executed person maintained possession of firearms.

Obviously (or not, I guess), that was tongue-in-cheek since dead people can’t keep or bear anything. I was referring to the same pp. 19-20:

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.