As gun rights have evolved in the United States, the Supreme Court has moved away from a means-end test and adopted a history-and-tradition framework for evaluating Second Amendment challenges.1 This framework requires that any firearm regulation be “consistent with this Nation’s historical tradition of firearm regulation.”2 Numerous federal courts have already used this test to swiftly strike down over a dozen state and federal laws cabining gun possession rights.3 Lower courts presented with challenges to felon-in-possession laws, however, have greatly differed over how to analogize firearm regulations of the Founding to the present.4 Recently, in Range v. Attorney General,5 the Third Circuit applied this test, as required under New York State Rifle & Pistol Association v. Bruen,6 and determined there were not historical analogues to stripping a nonviolent offender7 of his Second Amendment rights. The decision — the first of a federal circuit applying 18 U.S.C. § 922(g)(1) after Bruen8 — has raised questions about whether felon-in-possession laws are still “presumptively lawful.”9 Range narrowly decided that firearm disenfranchisement of convicted individuals “like Range” is unconstitutional.10 The Third Circuit’s inchoate “like Range” test underscores that the history-and-tradition test is difficult for evaluating challenges to felon-in-possession laws. By failing to directly grapple with the history-and-tradition test’s indeterminacy, the Third Circuit missed an opportunity to adopt a more definite standard of dangerousness as the “touchstone.”11
In August of 1995, Bryan Range pleaded guilty to one count of making a false statement to obtain food stamp assistance, in violation of title 62, section 481(a) of the Pennsylvania Consolidated Statutes.12 Mr. Range, around the time of the offense, earned about $300 per week.13 Mr. Range’s wife, Mrs. Range, filled out an application for food stamps, and on the application, Mr. Range’s income was omitted.14 Mr. Range accepted responsibility for the omission on the application.15
At that time, Mr. Range’s false statement was classified as a first-degree misdemeanor, punishable by a maximum of five years’ imprisonment, under Pennsylvania law.16 Consequently, his conviction triggered the application of § 922(g)(1),17 but Mr. Range maintained that he was not informed by the prosecutor or judge that his pleading would result in a firearms possession ban.18 Unaware that he was barred, Mr. Range attempted to purchase a gun twice.19 He was unsuccessful both times, and upon further research, he realized his nonviolent conviction precluded him from possessing a gun.20
Mr. Range, alleging that § 922(g)(1) violated his Second Amendment rights, filed suit in the District Court for the Eastern District of Pennsylvania.21 Judge Pratter looked to the Third Circuit’s test in Binderup v. Attorney General22 to determine whether a crime is so serious as to warrant a ban on a felon’s possession of firearms. Judge Pratter found one factor — cross-jurisdictional consensus about the seriousness of crime — weighed in favor of the government.23 This was sufficient for the government to prevail at step one, so the court granted summary judgment for the government.24 Mr. Range appealed.25
The Third Circuit affirmed.26 In a per curiam opinion, Judges Shwartz, Krause, and Roth held that § 922(g)(1), as applied to Mr. Range, was constitutional.27 Between Mr. Range’s appeal and the Third Circuit hearing the case, the Supreme Court decided Bruen. Establishing a history-and-tradition test, Bruen abrogated the Third Circuit’s seriousness test from Binderup.28 The panel applied the Bruen history-and-tradition test — surveying the historical record of felon-in-possession laws in England and in the Founding era — which first looks at whether the Second Amendment covers the regulated conduct or individual and then second at whether there are historical analogues to the regulation.29 The Third Circuit determined that “§ 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.”30 Mr. Range successfully petitioned for the case to be reheard en banc.31
The Third Circuit, sitting en banc, reversed and remanded.32 Writing for the majority, Judge Hardiman33 applied the Bruen two-step test.
First, the majority determined that the Second Amendment applied to Mr. Range, notwithstanding his nonviolent misdemeanor conviction.34 The majority acknowledged that District of Columbia v. Heller,35 McDonald v. City of Chicago,36 and Bruen in dicta stated that only “law-abiding citizens,” not “the people” writ large, are protected under the Second Amendment, but the majority discussed how “the people” is used not only in the Second Amendment but also throughout the Constitution.37 If Mr. Range were not included as “the people” in the Second Amendment context, then he would be precluded from other rights as well.38 The majority also found that limiting Second Amendment rights to only those who are “law-abiding, responsible citizens” would be too vague and broad.39 The majority ultimately held that Mr. Range was one of “the people” whom the Second Amendment protects.40 Next, the Third Circuit concluded its analysis of Bruen’s first step by ruling that § 922(g)(1) regulates Second Amendment conduct, and that Mr. Range’s desire to possess firearms to hunt and for self-defense fell within the scope of the Second Amendment right under Heller.41
Second, the majority looked at whether § 922(g)(1) is a firearm regulation consistent with the nation’s history and tradition.42 The government relied on the dicta in Heller saying that there is a “longstanding” history of felon-in-possession laws, Justice Kavanaugh’s concurrence in Bruen stating that felon-in-possession laws are “presumptively lawful,” and the 1961 amendments to the Federal Firearms Act43 to support its contention that there is a history and tradition of felon-in-possession regulations.44at 103–06. The majority found this support unconvincing because the “longstanding” firearm regulation initially only applied to violent offenders, which Mr. Range was not, and because the “1961 iteration of § 922(g)(1)” was passed too recently (that is, 170 years after the ratification of the Second Amendment) to be “longstanding.”45 The government also pointed to historical firearm laws that disenfranchised those who were distrusted — Loyalists, Native Americans, Quakers, Catholics, and Blacks — but the majority determined that Mr. Range was not part of a similar group like those regulated in the Founding era.46 The majority also concluded that the government’s argument that even nonviolent offenses were considered serious and punishable by death was not related to the issue in front of them.47 Lastly, the majority held that the government’s citation to persuasive authorities was unconvincing because those opinions were handed down before Bruen abrogated prior tests.48 Therefore, the court ruled that the government did not meet its burden of establishing that § 922(g)(1), as applied to Mr. Range, was consistent with the history and tradition of American firearms regulation.49 The Third Circuit reversed the judgment of the district court and remanded so that the district court could grant declaratory judgment in favor of Mr. Range.50
Judge Porter concurred.51 He wrote separately to offer reasoning as to why there were no historical laws like § 922(g)(1).52
Judge Ambro, joined by Judges Greenaway, Jr., and Montgomery-Reeves, also concurred.53 Judge Ambro emphasized that § 922(g)(1) remained “presumptively lawful” as a mechanism of regulating those who are a threat to society.54
Judge Shwartz, joined by Judge Restrepo, dissented.55 She critiqued the majority’s treatment of precedent and historical analogues to § 922(g)(1). She also argued there was a tradition of regulating those deemed to be disloyal or disrespectful of the law.56
Judge Krause also dissented.57 She underscored that the historical record supports disarming those who disrespect the law and posited that the majority could have made a narrower ruling.58
Lastly, Judge Roth also dissented.59 She argued that § 922(g)(1) is consistent with historical firearm regulations.60
Range, unprecedentedly, held there is not a historical basis for disenfranchising a nonviolent offender, arguably “without articulating any principles mediating historical and modern laws.”61 The court reached the right conclusion that Mr. Range should not be barred from possessing firearms, but the majority’s narrow “like Range” test neglected to provide any guidance about “[w]hat specifically is it about Range that exempts him — and going forward, those ‘like [him]’ — from § 922(g)(1)’s enforcement.”62 As Judge Krause identified, if the “like Range” test is about whether the underlying conviction was for a nonviolent offense or whether the convicted individual has exhibited law-abiding behavior, then this standard is severely flawed.63 If, on the other hand, the “like Range” test is really about dangerousness, the court has punted on adopting this standard.
The majority notably did not rely on Mr. Range’s argument “that because ‘there is no historical tradition of disarming nonviolent felons,’ dangerousness is the ‘touchstone.’”64 The majority found that it “need not decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.”65 Rather than set forth an indeterminate “like Range” standard, the Court should have interpreted § 922(g)(1) as analogous to historical firearm regulations of those who were perceived to be “dangerous.” Adopting a “dangerousness” framework, which comports with Bruen, would provide courts with a clearer way to analogize § 922(g) challenges, which could allow for more individuals with criminal records to regain their Second Amendment rights.
Bruen required the Range court to analogize Mr. Range’s nonviolent offense to historical regulations of similar conduct.66 According to scholars, there is a long tradition of regulating gun ownership of those who were deemed to be dangerous, disloyal, and untrustworthy.67 Importantly, “there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms.”68 The majority correctly held that there is no historical basis for disenfranchising Mr. Range. Mr. Range’s conduct should certainly not be seen as being dangerous or disloyal, and his one-time criminal offense for food stamp fraud should not render him as permanently non-law-abiding. The fact that the opinions in Range drew upon the same history and reached different conclusions underscores the challenge of interpreting historical analogues.69 While historical interpretation will often be debated, a dangerousness framework can provide clearer guidance on how judges should analogize modern Second Amendment regulations to those of the past. Judges, then, could more uniformly analyze the permissible scope of § 922(g)(1). Consequently, courts could rule that more individuals with criminal records, such as Mr. Range, should regain their Second Amendment rights.
The court’s lack of unanimity on how to interpret historical analogues may speak to a definitional issue — in which case, solely relying upon concepts like “violent” and “law-abiding” may be misplaced. As Judge Krause already articulated, interpreting the “like Range” test to mean “law-abiding” or nonviolent is “confounding” and “unworkable.”70 For one, considering a convicted person to be law-abiding is indeed counterintuitive.71 Judge Krause also underscored the difficulty in classifying what a violent crime is.72 Judge Ambro’s “threat to society” framework73 is similarly faulty because such a standard is seemingly arbitrary. For example, are “thieves,” as Judge Ambro posited,74 really a threat to society? Is a shoplifter? If so, Mr. Range, who was convicted of fraud, could be a thief. In fact, under Judge Ambro’s formulation, most white-collar offenders75 would be barred from firearm possession. However, there is no history before the 1960s that supports disenfranchising those who are “nonviolent.”76 In contrast, focusing on dangerousness, rather than on the overinclusive and indeterminate concepts of “violence” and “law-abiding” to disenfranchise those who are threats to society, aligns more closely with the history of firearm regulations. Moreover, defining a violent offense is also a “political act” that is laden with racism and classism.77 “Dangerousness” arguably can be determined through more standardized metrics.
By framing the history-and-tradition test as an inquiry into “dangerousness,” courts would not have to rely only on subjective78 determinations. Furthermore, courts would not have to rely on an individual’s criminal record, which would be a welcome departure since a violent conviction is not a reliable predictor of future dangerousness.79 Data reveal that individuals who were released from state prison for drug offenses were more likely to be rearrested for a violent offense than were individuals released for homicide or sexual assault.80 The evidence shows that “people convicted of violent and sexual offenses are actually among the least likely to be rearrested.”81 A person who was convicted for a violent offense is not inherently “dangerous” once released back into society.82 Thus, a conviction is not a reliable predictor of future dangerousness.
Rather, there is a body of research that reveals what factors are and are not accurate predictors of future “dangerousness.”83 Data-informed determinations of “dangerousness” can serve as guidelines for judges when ascertaining whether a specific individual with a criminal conviction or a class of individuals with the same criminal conviction has Second Amendment rights. Although far from perfect,84 risk assessment tools can be used to provide a more objective (i.e., data-driven and consistent) evaluation of who may be dangerous.85 Demographic factors like age, for example, have historically been reliable predictors of future violent convictions.86 Courts, however, must be cognizant that risk assessment tools have been imbued with systemic racism.87
These factors can also help distinguish why certain convicted offenders, such as domestic abusers, maybe should be treated differently. For example, there is some evidence that ties firearm possession and a history of domestic violence to future dangerousness.88 Thus, notions of “dangerousness” can ease concerns held by those like Judges Krause and Shwartz, who worried that under the “like Range” test all felon-in-possession laws are essentially unlawful. Though flawed, data-informed notions of dangerousness can guide courts in determining which individuals with criminal records still have Second Amendment rights.
While the holding of Range comports with Bruen’s history-and-tradition test, the “like Range” standard provides little guidance for courts on how to analogize historical laws to § 922(g)(1).89 Until the Supreme Court clarifies the extent to which felon-in-possession laws are lawful, or overturns the Bruen history-and-tradition test, courts can and should evaluate modern felon-in-possession laws through the framework of dangerousness. But even when considering “dangerousness” as part of a Bruen history-and-tradition analysis, courts should be careful to remain critical, ensuring that such assessments do not reflect race or class biases. If courts adopt and vigilantly apply a dangerousness framework, many individuals with criminal convictions can have their Second Amendment rights rightfully restored under Bruen.