Thread by @JacobDCharles

🚨 We've been long waiting on the 3rd Cir's en banc ruling in a 2nd Am case abt the felon-in-possession ban. It's the first post-Bruen en banc 2nd Am ruling--the ct concludes it's unconst'l to permanently disarm at least some w/ felony convictions.

www2.ca3.uscourts.gov/opinarch/21283…

Range is a sympathetic plaintiff. He had a decades-old conviction for making false statements to obtain food stamps. According to the terms of federal law, that disqualified him from owning guns for life, even tho the violation was labeled a misdemeanor under PA law.

The court noted how the prior three judge panel had reached the opposite conclusion - that Range could be permissibly disarmed under the law.

🧵on that vacated decision

https://twitter.com/JacobDCharles/status/1592926468119875584?s=20

The court noted that Bruen addressed a *where* question concerning the 2nd Am & that cases like the one before it address the *who* question. Another category - *what* questions - will be coming soon as we get appellate precedent on assault weapon bans.

The court (properly, in my view) categorizes the first question as the textual inquiry into whether Range qualifies as part of "the people." (Other courts have suggested Bruen's plain-text prong doesn't allow inquiry into whether the person is covered, only whether conduct is).

The court agreed that "the people" is not limited to the law-abiding responsible ones Heller, Bruen & McDonald invoked for 4 reasons. It seems most concerned that to limit would license too much govt discretion to exclude folks from 2nd Am rights.

After rejecting the reliance on the felony/misdemeanor distinction in the law-abiding label, the court also says that the description of "responsible" can't be the right frame either.

The court then turns to the 2nd prong: whether historical tradition supports disarming felons. It rejects reliance on the statements in Heller & their repetition by a majority of justices in Bruen that felon bans are presumptively const'l, which the 8th Cir relied on.

Altho Judge Hardiman had written pre-Bruen that he (like then-Judge Barrett) believed the 2nd Am only permitted disarmament of "dangerous" persons, the court here *declines* to settle that important question, saying no matter the metric the govt didnt satisfy its burden.

The court rejects the analogues the govt produces & args it makes - the status-based historical laws were too broad; the death penalty for felons is not an apt analogy; mounds of sister circuit precedent are unpersuasive, etc.

The decision concludes by stating that it's "a narrow one." That's true - & seems to create its own problems b/c the court does not suggest the principle on which govt *could* disarm individuals. Under this ruling, is the entire fed law unconst'l? As applied only to some?

Concurrences add more detail. Writing only for himself, Trump appointee Judge Porter attacks fed power over guns generally, suggesting even modern laws like the fed laws restricting machineguns are modern inventions w/ no analogue in history (& hence, might be toast under Bruen).

Indeed, Judge Porter might even go broader & dismiss the relevance of many old state laws in the search for historical trad'n bc the 2A didnt originally apply agst the states. Paired w/ Bruen's history-only test, that approach cld wipe out modern regulations.

Another concurrence, by Judge Ambro (Clinton), joined by Judges Greenaway Jr. (Obama) & Montgomery-Reeves (Biden) wld hold the 2nd Am allows disarming those who "pose a threat to the orderly functioning of government."

That concurrence seems to part ways with the majority's reading of the dicta in Heller and Bruen.

Citing laws disarming Catholics, disloyal & others, the concurrence says that *danger* is not the key worry but concerns about who would threaten societies norms and values. (That seems much more amorphous than a danger/violence standard, itself open to substantial disagreement.)

Finally, that concurrence says SCOTUS is going to have to reconcile its cryptic statements and tests in this area.

Judge Shwartz (Obama) joined by Judge Restrepo (Biden) dissent, pointing out that the majority's ruling leaves it unclear whether the felon-in-possession law is constitutional in *any* of its applications.

That dissent faults the majority for the breadth of its ruling and its rejection of persuasive evidence.

In one noteworthy response, the dissent points out how the majority vacillates on the time period that matters (something that also happens in the "common use" test for weapon protection & on which I'm writing).

The dissent also chides the majority for rejecting the relevance of old status-based laws on the grounds that Range is not a member of those classes. It says those are relevant laws despite being repugnant. I agree, as I'm writing for @StanLRev Online:

papers.ssrn.com/sol3/papers.cf…

It further suggests that Judge Porter's reading is quite broad & extreme (perhaps adding more explanation for why no one else joined it).

Finally, the dissent highlights that now it will be impossible for folks w/ convictions in PA, NJ, and DE to know whether the 2nd Am allows them to have guns or not. For now it's just a guessing game.

Judge Krause (Obama) in a solo dissent (though one that the other dissenters expressed agreement with) first notes SCOTUS's move toward a more historically bound test.

Then she cites Joseph Blocher & @ericmruben's terrific forthcoming @YaleLJournal piece to describe how a narrow focus on precise historical twins is a bad idea given all the change over time.

And she - still in the start of a dissent longer than the majority opinion - marks the significance of what the court is doing.

She states that she'll make 3 points in the dissent to clarify what the majority gets wrong.

On the history, one thing Judge Krause brings up (and that has mattered a lot in some district courts) that wasn't discussed by the majority is the suggestion that this is an unprecedented social concern & therefore the govt gets more leeway in finding analogues.

She goes through a whole bunch of history, arguing that it shows that legislatures had broad authority to disarm those it couldnt trust to use weapons responsibly. It largely echoes the prior panel op (of which she was a member) in using law-abidingness as the breakpoint.

In discussing the consequences of the majority's approach, she is particularly harsh.

She also underscores that the court's rationale not only invalidates the federal law but also calls into question the laws in the 48 states that prohibit access to firearms for those convicted of crimes.

What's left of the federal law, she asks? Unclear, according to the majority's rule.

I think she has a point here, and it was one of the most striking things when I got to the end of the majority opinion. Just how will lower courts know what to do & how can individuals know what conduct is now permissibly prohibited & which isn't?

She identifies a number of specific situations in which it will be incredibly hard to know whether someone's conduct qualifies under the "like Range" test.

She lists 3 ways that the decision impact law enforcement, including how it affects the automated background check system for gun purchasing.

Finally, Judge Krause suggests the need for SCOTUS to take this case up sooner rather than later. I have to agree that this case is likely headed to SCOTUS quickly - and that the circuit split here increases the chances the Court grants cert in the 5th Cir Rahimi case before it.

In the last opinion of the very long set (majority opinion, two concurrences, and three separate dissents), Judge Roth (GHWB) writing alone says Range is in at step 1 but tradition is nonetheless sufficient.

He argues for a more detailed analytical framework under Bruen that requires attention to the problem addressed.

On the whole, his dissent turns a lot on the commerce clause and the law's restriction to guns with a connection to interstate commerce. & in a way I can't quite fully grasp clearly, he concludes Range does not have standing to bring his claim.

Cases like this one scramble political lines b/c the federal law is broad, generating "progressive" concerns abt mass incarceration & racialized enforcement and "conservative" concerns abt overweening federal law trampling 2A rights. Here that played out.

https://twitter.com/JacobDCharles/status/1666185176760872960?s=20

I imagine that this case will head to SCOTUS & it seems hard for the Court to duck a ruling striking down a major federal law--the bread & butter of fed gun crimes, as @brandonlgarrett & I underscored in our @PennLRev piece--esp now that there's a split.

pennlawreview.com/2022/06/16/the…

What stands out to me from this & the 8th Cir's contrary decision is that they're essentially standardless. What's the rationale that cld justify modern ones? Not clear. All this, IMO, is a result of Bruen's misguided req to find an analogue.

papers.ssrn.com/sol3/papers.cf…