For the third time, a Pennsylvania man and his attorneys have argued that his 30-year-old misdemeanor conviction for falsifying his income on a food stamp application shouldn't bar him from exercising his Second Amendment rights, and it sounds like the Third Circuit Court of Appeals is once again receptive to their reasoning. 

Bryan Range pleaded guilty to a single count of welfare fraud in Pennsylvania back in 1995, a misdemeanor offense punishable by more than a year in prison at the time. Though Range was sentenced only to probation, because the crime could have resulted in Range spending 366 days in jail, he forfeited his right to keep and bear arms as a result of the conviction. 

In 2020, Range filed an as-applied challenge to the prohibition, but saw his case dismissed by a district court judge. A Third Circuit Court of Appeals panel ruled against his appeal in 2022, but an en banc panel reversed that decision last year, finding that Range's Second Amendment rights had been violated. 

The Department of Justice appealed that decision to the Supreme Court, and shortly after SCOTUS issued its verdict in the Rahimi case it remanded Range's lawsuit back to the Third Circuit for another look at the case. On Wednesday, an en banc panel once again took up Range v. Garland, and the panel appeared awfully skeptical of the DOJ's argument to keep Range away from his Second Amendment rights. 

During Range’s oral argument, U.S. Circuit Judge Marjorie O. Rendell, a Bill Clinton appointee, noted that Rahimi suggested a more serious historical punishment could, in theory, justify a lesser modern one, adding that counterfeiting theft was once punishable by death in the early United States.

In response, Range’s attorney Peter Patterson sought to draw a line between Range’s case and Rahimi, emphasizing that his client’s crimes were strictly nonviolent, while Rahimi had been disarmed due to a civil domestic violence restraining order.

“What the court said is that if someone could be put in prison on account for their threat of violence to another person, we can take the relatively lesser step of disarming them,” Patterson said. “What they didn’t say is that if someone was put in any prison for any reason, we can disarm them.”

Patterson said there would be “startling consequences” for citizens’ individual rights if that notion were extended to nonviolent offenders.

“There would be nothing limiting that to the Second Amendment,” he said. “(If) they commit an offense analogous to a capital offense at the (nation’s) founding, then presumably, you could strip them of their First Amendment rights, their Fourth Amendment rights, and everything — for life. And, surely, that cannot be correct.”

According to the Biden/Harris DOJ, that is essentially the standard that the courts should adopt. Under questioning, DOJ attorney Kevin Soter argued that anything considered a felony (or in Range's case, a misdemeanor punishable by more than a year in prison) constitutes a "serious crime" that should result in an "indefinite" prohibition on the right to keep and bear arms. 

However, Soter’s position appeared to find little acceptance from the bench. One judge after another hammered Soter with growing irritation as they sought his definition of a “credible threat” to others’ physical safety — the threshold under Rahimi to justify disarmament.

“Let’s say that Pennsylvania decided that jaywalking or failing to return library books is a felony,” U.S. Circuit Judge David J. Porter, a Donald Trump appointee, said. “Would those offenders be permanently disarmed under Rahimi?”

Soter said that while that offender would be disarmed upon conviction, they could seek mechanisms such as expungement or a pardon to regain their Second Amendment rights later.

“That’s a very steep hill to climb,” one judge muttered.

When Soter was asked why the judges should consider Range a credible threat to the physical safety of others, the attorney could only point to the fact that Range was convicted of a crime that was punishable by more than a year in prison, an assertion that drew skeptical responses from several judges on the en banc panel.

Soter’s reply again focused on congressional categorization of felons as “dangerous enough to be disarmed,” prompting U.S. Circuit Judge Kent A. Jordan to prod the attorney as well.

“I would really like a straight answer to the question, too,” the George W. Bush appointee said. “Is it the government’s position that…by virtue of being convicted of that crime where the punishment is possibly a year and a day in prison, you are ipso facto a danger — a physical danger — to the community? Is that the government’s position?”

Once again, Soter was almost immediately interrupted by the bench.

“That’s just a yes or a no,” Jordan said. “That’s actually a yes or a no. You can say, ‘That’s not our position,’ and clarify it, or you can say, ‘That is our position,’ and clarify it. But you ought to start with a yes or a no.”

“I think the answer to that is that person is a member of a group that Congress can disarm,” Soter said shortly before his argument time had concluded.

The DOJ's argument is essentially a green light for Congress to prohibit almost anyone from lawfully possessing a firearm if they deem a minor offense a serious crime. 

The federal government's argument in Range:

1) People who commit serious crimes can be disarmed for life
2) All felonies are serious crimes
3) Congress determines what crimes are felonies
4) Therefore Congress has complete freedom to choose which people get disarmed for life https://t.co/bjsRAnbV57

— Firearms Policy Coalition (@gunpolicy) October 9, 2024

Yes, Congress is the branch of government that determines who can lose their Second Amendment rights, but that doesn't mean it can ignore the Constitution when it makes that determination. It has to color inside the lines, and prohibiting non-violent offenders who pose no threat to public safety from exercising their Second Amendment rights fails the "text, tradition, and history" test spelled out by the Supreme Court as well as common sense. 

With any luck, this will be the last time that Bryan Range has to argue to have his Second Amendment rights restored after a misdemeanor conviction 30 years ago. If the Third Circuit once again rules in Range's favor, the DOJ may try to appeal once more to the Supreme Court, but the justices don't have to grant cert, especially if a majority believes the appellate court got it right.